Clavering v Ellison
| Jurisdiction | England & Wales |
| Judgment Date | 10 August 1859 |
| Date | 10 August 1859 |
| Court | House of Lords |
English Reports Citation: 11 E.R. 282
House of Lords
Mews' Dig. iii 2119; xv. 1357. S.C. 29 L.J.Ch. 761; and below, 8 De G. M. and G. 662; 2 Jur. N.S. 201; 3 Jur. N.S. 276; 3 Drew. 451. Considered in In re Exmouth; Exmouth v. Praed, 1883, 23 Ch.D. 165.
Will - Vested Estates - Condition subsequent - "Educated in England, and in the Protestant Religion".
&707] Sir W. ALOYSIUS CLAVERING, Bart.,-Appellant; P. G. ELLISON and Others,-Respondents [August 10, 1859]. [Mews' Dig. iii. 2119; xv. 1357. S.C. 29 L.J.Ch. 761; and below, 8 De G. M. and G. 662; 2 Jur. N.S. 201; 3 Jur. N.S. 276; 3 Drew. 451. Considered in In re Exmouth; Ezmouth v. Praed, 1883, 23 Ch.D. 165.] Witt-Vested Estates-Condition subsequent-" Educated in England, and in the Protestant Religion." There is no foundation for the doctrine, that if there is a limitation in a will, which by itself gives a vested estate, and a condition is afterwards added, on a breach of which the estate is to go over, the limitation and the condition, will be construed into a contingent devise. jA. condition which is to defeat a vested estate must depend on an event ascertaiii-able from the beginning. G. C. gave his real and personal estates to trustees, upon trust (among other things) to invest his personal estate, and pay the interest to his son, T. J. C., for life, then to all the children of his son, and their heirs; and he gave all the residue amongst all the children, to be paid as they should attain twenty-one ; "provided that the devises hereinbefore contained to the children of my said son are made upon this express condition, that they be educated in England, and in the Protestant religion, according to the rites of the Church of England; and in case any one or more of such children shall be educated abroad, or not in the Protestant religion, according to the rites of the Church of England, then I do hereby revoke," etc., and there was a gift over: Held, that the children took equitable estates tail, subject to be divested upon certain contingencies; that the proviso constituted a condition subsequent, to defeat vested estates, and was therefore to be construed strictly. The children went with their father to France when very young, and remained with him there fr *m 1802 to 1810, during which time he was detained as a prisoner of war by Napoleon, but they might have returned to England had their father so pleased. They were during their continuance in Franca educated at Roman Catholic schools, but were not proved to have been taught Roman Catholic doctrines, but were able to receive religious instruction from a Protestant minister who attended each of their schools On their return to England at the peace of 1814, they were sent to English Protestant schools: Held, that under these circumstances they had not incurred the forfeiture within the words of the proviso. George Clavering, late of Green Croft, in the county of Durham, esquire, tho testator, had an only son, Thomas John Clavering, who, while travelling abroad [708] during his minority, married Clara Gallais, a native of France, and a Roman Catholic. The testator disapproved of the marriage of his son to a foreigner and a Roman Catholic. By his will, dated the 9th day of January 1793, duly executed and attested, he gave certain pecuniary and specific legacies; and, subject to and charged with his debts, funeral expenses, and these legacies, he gave all his real and personal estate unto trustees, upon trust to call in his personal estate, and to place the same out upon Government or real securities, and out of the rents and interest to pay certain annuities, and then to pay the residue of the rents and the interest unto his son Thomas Jo-hn Clavering for life, and after the decease 282 CLAVERING V. ELLISON [1859] VII H.L.C., 709 of his son, then subject as aforesaid, the testator gave his real estates unto all and every the child and children of his son, begotten or to be begotten, and their heirs as tenants in common, and if but one, then to such only child and his or her heirs; and he gave all the residue of his personal estate unto and amongst all the children of his said son, begotten or to be begotten, equally to be divided between them, to be paid and payable at their respective ages of twenty-one years, and in case any of the said children should happen to die before he, she, or they should attain the age of twenty-one years, then he gave the share of him, her, or them so dying to the survivors, to be paid and payable at the time and in manner aforesaid. Then followed this proviso, " Provided always and I do hereby declare that in case my said son shall reside more than three months in any year abroad, or shall not continue to profess the Protestant religion according to the rites of the Church of England, or his said wife shall not within the time aforesaid renounce the Catholic religion and embrace the Protestant religion according to the rites of the Church of England, or, having embraced the Protestant religion, shall, during the [709] life of my said son renounce the same and embrace the Catholic religion, then, upon any of the said contingencies so happening, I revoke the said devises so made to my said son, and declare that my said trustees and their heirs executors and administrators shall, from thenceforth from time to time during the life of my said son, place out the rents and profits of my said real estates and the interest and proceeds of my said personal estate, upon Government or real securities, for the benefit of all and every the child and children of my said son, equally to be divided between them, share and share alike if more than one, and to be paid and payable at such time and times and in such manner, and under and subject to the like limitations over as are hereinafter declared of and concerning my personal estate, upon the death of my said son ; Provided farther, and I do hereby declare that the devises hereinbefore contained to the children of my said son, are made upon this express condition, that the children of my said son be educated in England and in the Protestant religion according to the rites of the Church of England, and in case any one or more of huch children shall be educated abroad, or not in the Protestant religion according to the rites of the Church of England, then I do hereby revoke all and every devise to such child or children so educated as aforesaid, and do give devise and bequeath the share or shares of such child or children of and in my real and personal estates as aforesaid, unto and amongst such other child or children of my said son who shall be educated in England, and in the Protestant religion according to the rites of the Church of England, as if such child or children, so educated abroad and not professing the Protestant religion according to the rites of the Church of England, was or were actually dead, and in case all the children of my said son shall be educated abroad or not in the [710] Protestant religion according to the rites of the Church of England, then I do hereby give devise and bequeath all my said real and personal estates unto and amongst my said nephews and nieces, in manner aforesaid in like manner as if all and every the children of my said son so educated abroad or not in the Protestant religion according to the rites of the Church of England was or were actually dead under the age of twenty-one years:" and the testator appointed the trustees executors of his said will. The testator afterwards made a codicil, dated 1st February, 1793, in which was a declaration as to the rents and profits of his real estate, during the life of his son, to precisely the same effect, and almost exactly in the same words as the proviso in the will. The codicil..gave these, under similar circumstances, to those persons who under his will would be entitled to his real and personal estate. In May 1793, he made another codicil, which, however, it is not material to consider. The testator died in 1793, without altering or revoking the will or codicils, leaving Thomas John Clavering, his only son and heir-at-law, him surviving...
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