Blathwayt v Baron Cawley

My Lords.

This is an appeal, relating to the trusts of the will of Robert Wynter Blathwayt, from an order of the Court of Appeal affirming an order of Goulding J. There have been previous proceedings relating to this will in 1939, and again in 1949, which have added to the complications arising from the will itself. I shall first refer to the relevant provisions.

The will was made on 7th August, 1934, and the first three respondents are the present trustees. We are concerned only with the trusts affecting the trust estates in Somerset and Gloucestershire, or their proceeds of sale, referred to as "my principal estate". By clauses 6-9 of the will the principal estate was settled on the following trusts and subject to the following powers and provisions:

"6.

• ( a) UPON TRUST for Christopher George Wynter Blathwayt (the elder son of my late cousin Henry Wynter Blathwayt) during his life with remainder

• ( b) UPON TRUST for his first and other sons successively in order of seniority in tail male with remainder

• ( c) UPON TRUST for Justin Robert Wynter Blathwayt (the younger son of my said late cousin) during his life with remainder

• ( d) UPON TRUST for his first and other sons successively in order of seniority in tail male with remainder

• ( e) UPON TRUST for the said Francis Linley Blathwayt during his life with remainder

• ( f) UPON TRUST for such person or persons being male and for such purposes as the said Francis Linley Blathwayt shall by any Deed revocable or irrevocable or by Will or Codicil appoint

PROVIDED ALWAYS and I HEREBY DECLARE that if any person in whose favour such an appointment shall be made shall: �

• ( a) Be a Roman Catholic at the date when such appointment takes effect or

• ( b) If not then using or bearing the surname and Arms of Blathwayt shall neglect or refuse or fail within twelve months from the date aforesaid to assume the said surname (either with or without his or her own proper surname) and apply for proper authority to bear the said Arms (either alone or marshalled with his or her own Arms) and in case such authority shall be obtained to assume such Arms forthwith

then and in any of such cases my principal estate or the portion thereof appointed to such person shall go and devolve as if such appointment had never been made

7. I DECLARE that if any person who under the limitations herein contained (including this clause) of my principal estate takes an estate in tail male by purchase shall be born in my lifetime then and in every such case I REVOKE such estate in tail male and in place of such estate in tail male my Trustees shall hold the principal estate

• ( a) UPON TRUST for such person for life with remainder

• ( b) UPON TRUST for his or her first and other sons successively in tail male with the like remainders over as are hereinbefore limited to take effect after the determination of such estate in tail male so revoked as aforesaid

8. [Immaterial]

9. I FURTHER DECLARE that if any person who under the trusts hereof shall become entitled as tenant for life or tenant in tail male by purchase to the possession of my principal estate shall

• ( a) Be or become a Roman Catholic or

• ( b) Disuse the surname and Arms of Blathwayt then and in either of such cases the estate hereby limited to him shall cease and determine and be utterly void and my principal estate shall thereupon go to the person next entitled under the trusts hereinbefore declared in the same manner as if the person whose estate shall so cease determine and become void being a tenant for life were then dead or being a tenant in tail male were then dead without issue inheritable under the estate tail AND so that in the case of a tenant for life all powers annexed to his estate shall cease to be exercisable and that the enjoyment of any jointure rentcharge previously appointed by such person in favour of his wife under the power hereinafter contained shall not be accelerated."

Christopher George Wynter Blathwayt ("Christopher") was alive at the death of the testator in 1936 and was unmarried. He was received into the Roman Catholic Church on 10th November, 1939. The appellant Mark Henry Wynter Blathwayt ("Mark") is the eldest son of Christopher and was born on 8th June, 1949: he was received into the Roman Catholic Church by baptism in infancy and has at all times adhered to the faith of that Church. He attained majority on 1st January, 1970 by virtue of the Family Law Reform Act 1969. The third respondent Justin Robert Wynter Blathwayt, designated in clause 6( c) of the will, is alive but has no son. The fourth respondent the Reverend Linley Dennys Blathwayt ("Linley") is the person next entitled in remainder to the settled estates by virtue of an appointment made pursuant to clause 6( f) of the will.

On 16th September, 1970, Mark executed a Deed of Disentail of the settled estates with the consent (as Protectors) of Christopher and Justin. By a Deed of Assignment of the same date, Mark assigned to Justin all the interest (if any) to which Mark was entitled in equity in the settled estates during the life of Justin.

Before considering the effect of these dispositions it is necessary to refer to the proceedings in Chancery which took place in 1940 and 1949.

(i) The 1940 proceedings were brought by the then trustees as plaintiffs with Christopher and Justin as defendants. The questions submitted to the court were:

• ( a) whether Christopher had forfeited his life interest by reception into the Roman Catholic Church in 1939 and, if so,

• ( b) whether Justin's life interest was accelerated subject to determination in the event of the birth of a son to Christopher, or

• ( c) whether section 175 of the Law of Property Act, 1925 applied so that the income of the settled estates should be accumulated until the expiry of 21 years from the death of the trustee or the previous birth of a son to Christopher, or his previous death without having had a son;

• ( d) generally, who was entitled to the income of the settlement estates.

This originating summons was heard by Farwell J. who, on 5th June, 1940, made an order declaring that Christopher forfeited his life interest on reception into the Roman Catholic Church, and further declaring:

"�that the life interest of the Defendant Justin Robert Wynter Blathwayt in the said settled property is accelerated subject to determination in the event of the birth of a son to the Defendant Christopher George Wynter Blathwayt and the Defendant Justin Robert Wynter Blathwayt is entitled to the income thereof and to the usual vesting deed"

(ii) The 1949 proceedings were brought soon after, and no doubt in consequence of, the birth of Mark. The parties were the then trustees as plaintiffs and Justin and Mark as defendants. Mark was represented by Christopher as his guardian ad litem. The questions submitted to the court were:

• ( a) whether the life interest (sic) of Justin was determined upon the birth of Mark, and

• ( b) Generally that it might be determined what were the respective estates interests and rights in or over the settled estates of the two defendants (i.e. Justin and Mark) respectively.