Blackwell and another v Blackwell and Others
| Jurisdiction | England & Wales |
| Judge | Lord Buckmaster,Viscount Sumner,Lord Warrington of Clyffe,. |
| Judgment Date | 28 January 1929 |
| Judgment citation (vLex) | [1929] UKHL J0128-1 |
| Court | House of Lords |
[1929] UKHL J0128-1
House of Lords
Lord Chancellor.
Viscount Sumner.
Lord Buckmaster.
Lord Carson.
Lord Warrington of Clyffe.
After hearing Counsel, as well on Tuesday the 30th day of October last, as on Thursday the 1st and Friday the 2d, days of November last, upon the Petition and Appeal of Frances Evelyn Black well (Widow), of. "Sea Wrack." Chester Road, Woodford, in the County of Chester, and John Duncan Blackwell the younger, of "Creg-ny-Geay," Lewaigne, Ramsey, in the Isle of Man, praying, That the matter of the Order set forth in the Schedule thereto, namely, an Order of His Majesty's Court of Appeal, of the 23d of April, 1928, might be reviewed before His Majesty the King, in His Court of Parliament, and that the said Order might be reversed, varied, or altered, or that the Petitioners might have such other relief in the premises as to His Majesty the King, in His Court of Parliament, might seem meet; as also upon the printed Case of William Ernest Blackwell, Benjamin Sinclair Blackwell, Mark Oliver, Arthur Ernest Harrison, Fred Wettern, Edward Watson Barnett, William Percy Cowley, Edith Burrows and Dennis Burrows, lodged in answer to the said Appeal; and due consideration had this day of what was offered on either side in this Cause:
It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of His Majesty the King assembled, That the said Order of His Majesty's Court of Appeal, of the 23rd day of April, 1928, complained of in the said Appeal, be, and the same is hereby, Affirmed, and that the said Petition and Appeal be, and the same is hereby, dismissed this House: And it is further Ordered, That the Appellants do pay, or cause to be paid, to the said Respondents the Costs incurred by them in respect of the said Appeal, the amount thereof to be certified by the Clerk of the Parliaments.
My Lords,
The Lord Chancellor desires me to say that he agrees with this judgment that I am about to read.
My Lords, the question raised on this appeal is one which in various forms has for over two hundred years been the subject of vexed controversy. It may be stated by asking to what extent is it possible to give effect to testamentary intentions that are at variance with the provisions first of the Statute of Frauds and later of the Wills Act. That some deviation from the strict letter of these statutes has been permitted and has now become settled law is not disputed.
If a testator in his will makes a gift to a named legatee who at the time of making the will has promised he will hold the benefit of the gift for certain defined and lawful purposes, the Court will enforce against the legatee the trust in promised obedience to which he received the gift. ( McCormick v. Grogan, 4 E. & I. Appeals 82.)
This, however, does not directly govern the present case as the following facts will show. The Testator at the time of his death had a son of 16 years, the child of a woman, also living, who was not his wife. He was ill for many weeks before he died and was much concerned as to how he should make provision for this woman and her child without disclosing all the circumstances in his will.
He expressed this view to the Respondents Barnett and Wettern, who were his personal friends, and they agreed to act as trustees. What took place between them is best described in the words of Mr. Barnett, who said:
"He was urgently desirous of effecting at once, or as soon as possible, what he had talked about to me for the preceding two years or so. He mentioned the two beneficiaries, the mother and the son, and the sum of £12,000, and he also mentioned that it was his desire, if we would accept service, for my friend Wettern and myself, Mark Oliver, and Harrison, to act as Trustees in a secret trust which he had proposed to effect, the legal side of which would be carried out by Mr. Percy Cowley of the Isle of Man. I agreed to act as a trustee."
The testator, therefore, caused the Respondent, W. P. Cowley, who had for some time acted as his solicitor, to be summoned. He arrived on the 13th February and saw the Testator alone, who gave him instructions to the above effect.
These instructions he incorporated in a fourth codicil to the will. At his instance a Mr. Oliver was added to the trustees, and the codicil was then signed. It is in the following terms:—
THIS IS A CODICIL to the last Will of me, JOHN DUNCAN BLACKWELL. I GIVE AND BEQUEATH to my friends, Mark Oliver, Arthur Ernest Harrison, Fred Wettern, Edward Watson Barnett, and William Percy Cowley the sum of Twelve thousand pounds free of all duties UPON TRUST to invest the same as they in their uncontrolled discretion shall think fit and to apply the income and interest arising therefrom yearly and every year for the purposes indicated by me to them with full power at any time to pay over the capital sum of Eight thousand pounds to such person or persons indicated by me as they think fit, and to pay the balance of Four thousand pounds to my trustees as part of my residuary estate, and upon the same trusts as are declared in my Will and previous codicils.
Mr. Cowley then made a memorandum of the terms of the trust which has been accepted by Eve J. and the Court of Appeal as Accurate. It is as follows:—
" Re Mr. J. D. BLACKWELL.—MEMORANDUM of Verbal Instructions given to me at execution of Codicil 13/2/25. INCOME of £12,000 to be paid to Mrs. Edith Burrows, 4, Wilbury Crescent, Hove, Sussex, or applied at discretion of Trustees for benefit of herself and her son, Dennis Burrows. At any time Trustees may pay over £8,000 of capital either to her or Dennis Burrows or both of them. In such event £4,000 is to go back to Testator's Trustees on same trusts as his residuary estate.—W. PERCY COWLEY."
The Testator died on the 3rd June, 1925, and his will and four codicils were duly proved. The named trustees in the fourth codicil are ready and willing to carry out the trust evidenced by the memorandum, but the testator's widow and her son object that the trusts fail and contend that the trustees hold the £12,000 as part of the residue. It is first argued that Mr. Cowley's memory is faulty so that his recollection cannot be accepted as to the actual terms of the trust, and further that if the terms in the memorandum are the true record, they are too vague to be enforced.
It is, in my opinion, unnecessary to add anything on these points to the judgment of Eve J. and the Court of Appeal. There can be no reasonable doubt about the accuracy of the memorandum, and none about its efficacy if it can be admitted in evidence.
The real difficulty lies in considering whether the fact that in the will itself it is made plain that the gift is fiduciary destroys the principle upon which verbal evidence has been admitted to show the nature of a gift purporting to be absolute and beneficial.
The argument in favour of the appellants on this point cannot be put more forcibly than in Lewin on Trusts, 10th Ed., p. 65, and its strength lies in this—that while in a beneficial gift the imposition of a trust does not contradict the terms of the will but merely adds to them, where the gift is made on trust and no beneficiaries are specified the trust operates either for the residuary legatees or the next of kin and heir at law, so that the admission of verbal evidence showing the trusts contradicts the will. It must be observed, however, that this reasoning in strictness applies to a case where land is devised to trustees on trust and nothing more is said so that on the will there is a complete trust for the heir at law, but that is not the case here where the intention to benefit persons outside the will is manifest, and further a will is in fact contradicted when a gift complete made to a beneficiary without the hint of a trust is converted into a fiduciary gift for the benefit of some one never mentioned in the will. It is also urged that the underlying principle admitting extraneous evidence is that the legatee cannot profit by his own fraud, a principle that does not apply where, on the face of the will, his interest is fiduciary.
This principle is easily understood and may be also stated by saying that he cannot defraud beneficiaries for whom he has consented to act by keeping the money for himself. Apart, however, from the personal benefit accruing to the trustee, the real beneficiaries are equally defrauded in both cases, and the faith on which the testator relied is equally betrayed. Further, if the trustee was the heir or one of the next of kin or a residuary legatee, the fraud would be just the same. The Counsel for the appellants seemed at one time to argue that in such a case and to such an extent as to defeat the beneficial interest of the trustee the outside evidence might be admitted, but it is difficult to see on what principle of reasoning the evidence can be admitted in the one case and rejected in the other, when in both cases the fact of the trust appears in the will itself. Again, in the case where no trusts are mentioned the legatee might defeat the whole purpose by renouncing the legacy and the breach of trust would not in that case enure to his own benefit, but I entertain no doubt that the Court, having once admitted the evidence of the trust, would interfere to prevent its defeat. If this be so the personal benefit of the legatee cannot be the sole determining factor in considering the admissibility of the evidence.
It is, I think, more accurate to say that a testator having been induced to make a gift on trust in his will in reliance on the clear promise by the trustee that such trust will be executed in favour of certain named persons, the trustee is not at liberty to suppress the evidence of the trust and thus destroy the whole object of its creation, in fraud of...
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