Bromley v Tryon
| Jurisdiction | England & Wales |
| Judge | The Lord Chancellor,Viscount Jowitt,Lord Normand,Lord Morton of Henryton,Lord Tucker |
| Judgment Date | 29 November 1951 |
| Judgment citation (vLex) | [1951] UKHL J1129-4 |
| Court | House of Lords |
[1951] UKHL J1129-4
HOUSE OF LORDS
Lord Chancellor
Viscount Jowitt
Lord Normand
Lord Morton of Henryton
Lord Tucker
My Lords,
This appeal raises a question as to the validity and effect of a clause, familiarly known to conveyancers as a “shifting clause”, contained in the will dated the 4th July, 1890, of Gertrude Sophie Wilson who died on the 23rd January, 1892.
At the date of her will the testatrix was, subject to certain prior interests, including a life interest in her sister Emily, entitled in fee to an estate known as the Dallam Tower Estate situate in the counties of Westmorland and Lancaster. She was a connection of one Sir Henry Bromley, 4th Baronet, who was at the date of her will tenant for life in possession of an estate known as the Stoke Hall Estate situate in the county of Nottingham, and she was minded, as plainly appears from her will, to settle the Dallam Tower Estate on his grandchildren and remoter issue in such a manner as to ensure that, if any such grandchild or his issue became entitled to the Stoke Hall Estate, then such grandchild or issue should lose whatever interest they took under her will in the Dallam Tower Estate. The substantial question is whether the clause in her will by which she has sought to carry out her intention is wanting in the precision which is a condition of the validity of a condition subsequent.
It will be convenient, if before I come to the relevant clause, I remind your Lordships of the few material facts including the devolution of title to the Stoke Hall Estate.
As I have already said, at the date of the will of the testatrix, Sir Henry Bromley the Fourth Baronet, was tenant for life in possession of the Stoke Hall Estate and subject thereto the Estate stood limited to his son, also named Henry, who afterwards became 5th Baronet, for life with remainder to Robert Bromley, the eldest son of the 5th Baronet, who later became the 6th Baronet, in tail male with remainders over. As will presently appear the Estate was after the death of the testatrix resettled by the 5th Baronet (who had by the death of his father in 1895 succeeded to the title) as tenant for life in possession and his eldest son Robert as tenant in tail.
The pedigree of the Bromley family so far as is necessary for understanding the resettlement and the will of the testatrix and the questions which arise thereout is as follows:
(i) The 5th Baronet had four sons and one daughter all of whom were born in the lifetime of the testatrix.
(ii) His eldest son, Robert Bromley the 6th Baronet, died on 13th May, 1906, and had no male issue.
(iii) His second son the Respondent Sir Maurice Bromley-Wilson (hereinafter called “Sir Maurice”) the 7th and present Baronet, is 76 years of age. He has been married twice but has never had any issue; his present wife is over 70 years of age.
(iv) The third son is the Appellant Sir Arthur Bromley (hereinafter called “Admiral Bromley”). He has had issue one son only, the Appellant Rupert Howe Bromley, who is married and has had issue two children only the infant Appellants Rupert Charles Bromley and Maurice David Bromley. Admiral Bromley has had issue four daughters of whom the eldest is the Appellant Marion Victoria Bromley and the next daughter is the Appellant Anne Lloyd who is married and has issue. None of the children of Admiral Bromley were born in the lifetime of the testatrix.
(v) the fourth son of the 5th Baronet was Herbert Assheton Bromley who died on 24th April, 1915, a bachelor.
(vi) The only daughter of the 5th Baronet is Esther, who has been married once only namely to Charles Robert Tryon. She has had issue four sons of whom the eldest Henry Robert Tryon died in early infancy on 21st August, 1913. Her second son is the Respondent Charles Edward Tryon and he has had issue two children only, both daughters, of whom the elder is the infant Respondent Cicely Susan Esther Tryon and the younger died in early infancy.
(vii) The Respondents John Tryon and Thomas Charles Tryon are the younger sons of Mrs. Tryon and the Respondent David John Tryon is the only son of the Respondent John Tryon.
The Stoke Hall Estate was, as I have said, resettled after the death of the testatrix. This was effected by a Resettlement dated the 26th February, 1897, following on the usual disentailing deed. The material limitations of the resettlement are as follows:
(i) The 5th Baronet for his life.
(ii) Remainder to his said eldest son Robert for his life.
(iii) Remainder to the sons of such eldest son Robert successively according to seniority in tail male.
(iv) Remainder to Sir Maurice for his life and then to his sons successively according to seniority in tail male.
(v) Remainder to Admiral Bromley for his life and then to his sons successively according to seniority in tail male.
(vi) Remainder to Herbert Assheton Bromley for his life and then to his sons successively according to seniority in tail male.
(vii) Remainder to Rupert Fitzroy Bromley (a nephew of the 5th Baronet) for life and then to his sons successively according to seniority in tail male.
(viii) Remainder to the use that each of the persons (other than Rupert Fitzroy Bromley) to whom estates in tail male had been limited should take successively and in the same order estates in tail general.
(ix) Remainder to Mrs. Tryon for her life and then to her sons successively according to seniority in tail male and then to her daughters successively in tail general with other remainders over.
I must now return to the will of the testatrix which I can state shortly. She thereby devised the freehold part of the Dallam Tower Estate on the following limitations:
(i) To the use of her mother (who died in the year 1892) during her life.
(ii) To the use that her cousin Frances Carlton (who died in the year 1919) should receive for her life a yearly rent charge of £400.
(iii) Subject as aforesaid to the use of Sir Maurice (the second son of the 5th Baronet) during his life with remainder to his sons successively according to seniority in tail male with remainder to such sons successively according to seniority in tail general with remainder to his daughters successively according to seniority in tail general.
(iv) With remainder to the use of Admiral Bromley during his life with similar remainders to his sons and then to his daughters all successively in tail as aforesaid.
(v) With remainder to the use of Herbert Assheton Bromley during his life with similar remainders to his sons and then to his daughters all successively in tail as aforesaid but these limitations failed as he died a bachelor.
(vi) With remainder to the use of the fifth and every other son of the 5th Baronet thereafter to be born successively in tail but this limitation also failed as there was no such son.
(vii) With remainder in the words following “To the use of the first and every other daughter of the said Henry Bromley” (referring to the 5th Baronet) “hereafter to be born successively according to seniority in tail general”.
(viii) With remainders over to various members of the Hulton family.
These limitations were followed by a proviso, which in certain events reduced estates in tail to estates for life, and then by the shifting clause which I must state verbatim. It was in these terms:
“Provided Always And I hereby Declare that if any son daughter or other issue of the said Henry Bromley within the scope of the limitations hereinbefore contained shall by any means whatsoever become actually entitled to the possession or the receipt of the rents and profits of the family estate of Sir Henry Bromley the father of the said Henry Bromley meaning thereby the Stoke Hall Estate near Newark in the County of Nottingham or the bulk thereof whether consisting of the same premises as that estate now consists of or in any manner altered in the way of addition substitution diminution or otherwise and so that this proviso shall not be rendered inoperative by reason of such estate or any part or parts thereof being subjected to any charges or incumbrances whatsoever then and so often as the same shall happen and thereupon every estate hereinbefore limited for life or in tail male or in tail to the son or daughter of the said Henry Bromley who or any of whose issue shall so become entitled and (as to any such son or daughter to whom an estate for life is hereinbefore limited) to the first and other sons and the first and other daughters successively of such son or daughter shall absolutely determine and the said premises hereinbefore devised shall go and remain to the uses upon the trusts and with and subject to the powers provisoes and declarations to upon with and subject to which the same premises would have stood limited and settled by virtue of this my Will if such son or daughter had died and there had been a general failure of his or her issue But nevertheless without prejudice as to any son or daughter of the said Henry Bromley to whom an estate for life is hereinbefore limited to any jointure yearly rentcharge or portions which may have been charged by such son or daughter under the respective powers for those purposes hereinafter contained before such son or daughter shall have become entitled in possession to the said Stoke Hall Estate as aforesaid and without prejudice to any powers remedies or terms of years for securing or raising any such jointure or portions respectively.”
I need mention only one other provision of this will and I do so because learned counsel for the Appellants suggested that it had some bearing on the question that your Lordships have to decide. I refer to the power thereby conferred on every person made tenant for life of the Dallam Tower Estate either before or after he should become entitled in possession to charge the estate with a jointure or portions with a proviso that...
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