Clavering v Ellison
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1856 |
| Date | 01 January 1856 |
| Court | High Court of Chancery |
English Reports Citation: 44 E.R. 545
BEFORE THE LORDS JUSTICES.
S. C. 2 Jur. (N. S.), 201; 3 Jur. (N. S.), 276; 3 Drew 451; 29 L. J. Ch. 761; 7 H. L. C. 707; 11 E. R. 282 (with note). Considered, In re Exmouth, 1883, 23 Ch. D. 165.
[662] clavering v. ellison. Before the Lords Justices. Der.. 2, 11, 13, 15, 16, 1856 ; Jan. 26, 1857. [S. C. 2 Jur. (N. S.), 201 ; 3 Jur. (N. S.), 276 ; 3 Drew 451 ; 29 L. J. Ch. 761 ; 7 H. L. C. 707; 11 E. R. 282 (with note). Considered, In re Exmauth, 1883, 23 Ch. D. 165.] A testator gave real estate to his son's children as tenants in common in tail, and personal estate to them as tenants in common, with an accruer clause on death under twenty-one, and declared that these gifts were upon condition that the son's children were educated in England according to the rites of the Church of England, and that if any one or more of them should bo educated abroad or not in the Protestant religion according to the rites of the Church of England, the share of such one or more should go to such of the children as were educated in England in the Protestant religion according to the rites of the Church of England, with a gift over if all were educated abroad or not in the Protestant religion according to the rites of the Church of England. The son went to France and was there C. xxiv.- 18 546 CLAVERING V. ELLISON 8 DE 0. M. it O. 863. detained as a prisoner of war. Of his children, the eldest son and two daughters went to schools in France kept by Roman Catholics, at which, however, a Protestant minister attended. The eldest son, when about fifteen years of age, came to England and completed his education at Harrow and at the Military Academy at Woolwich. The daughters remained in France till they were sixteen and seventeen years old, when they came to England and went to a Protestant school. Held, that the devises and bequests to the eldest son and the daughters were not forfeited. This was an appeal by the Plaintiff from a decree of Vice-Chancellor Kindersley, so far as it proceeded on the footing that the Plaintiff had not become solely entitled to the real and personal estate of George Clavering. George Clavering, by will dated the 9th of January 1793, gave, devised and bequeathed all his real and personal estate to trustees upon trust to pay the residue of the rents of the real estates, after paying certain annuities, and of the income of hia personal estate, to his son Thomas John Clavering, afterwards Sir Thomas [663] John Clavering, for his life, and after his decease then, subject as aforesaid, the testator gave his said real estates to the children of his said son, begotten or to be begotten, as tenants in common in tail, with remainders over. And he bequeathed his residuary personal estate to the children of his said son Thomas John Clavering, begotten and to be begotten, as tenants in common, to be payable at his or their age or respective ages of twenty-one years, with a clause of survivorship in case any of the said children should die under the age of twenty-one years. And the will contained the following proviso :- "Provided always, and I do hereby declare that the devises hereinbefore contained to my said son are upon this express condition, that he shall continue to profess the Protestant religion according to the rites of the Church of England during his life, and that he shall not reside abroad more than three calendar months in any one year, and upon this further condition, that hia present wife shall within three months next after my decease renounce the Catholic religion and embrace the Protestant religion according to the rites of the Church of England, and continue to profess the same during the life of my said son; and 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 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 [664] 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 interests 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 amongst 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 hereinbefore declared of and concerning my personal estate upon the death of my said son. Provided further, 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 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 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, or 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 Protestant religion 8DBO.BL&O.I88. CLAVEBING V. ELLISON 547 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, [665] 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." The testator afterwards made a codicil dated the 1st of February 1793, which, so far as is material, was as follows :- " I do hereby declare that the devises contained in my said will to my son Thomas John Clayering are made upon this further condition, that all the children of my said son shall be educated in England, and in the Protestant religion according to the rites of the Church of England, and in case all or any of the children of my said son Thomas John Clavering shall be educated abroad, or in the Catholic religion, then and in such case I do hereby revoke the said devises contained in my said will to my said son, and I do declare that my trustees named in my said will, 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 estate, and the proceeds and interest of my said personal estate, upon Government or real securities for the benefit of such of the child or children of my said son as shall be educated in England and in the Protestant religion according to the rites of the Church of England, equally to be divided amongst 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 declared in and by my said will of and concerning my personal estate upon the death of my said son; and in case all the children of my said son shall be educated abroad, or not in the Protestant religion according to the rites of the Church of England, then I give, devise and bequeath the same unto the [666] persons who under my will shall in such case bo entitled to my real and personal estates." The testator died in the year 1793. The life interest of Thomas John Clavering determined soon after the testator's death, tinder the proviso in the will, and the income of the testator's real and personal estate was thenceforth accumulated during the life of Sir Thomas John Clavering, who died in 1853. He had some short time before the date of the will intermarried with a French lady, a Roman Catholic. By her he had six children, two of whom died in their infancy. The other children were James Clavering, the eldest son, who attained twenty-one, but afterwards died in his father's lifetime, and whose interests were represented in the suit by the Defendant John Clavering; the Defendant the Baroness De Knyff; the Baroness De Montfau ;on, who also attained twenty-one, married and died in her father's lifetime, and whose interests were represented in the suit by her husband and children, and the Plaintiff Sir William Aloysius Clavering. The circumstances relating to the education of the children were aa follows :- In May 1802, Sir Thos. J. Clavering went to France, taking with him his four eldest children-James, aged nine ; Clara (afterwards Baroness De Knyft) aged eight; Agatha (afterwards Baroness De Montfaucon) aged seven, and Thomas Charles (who afterwards died in infancy) aged five. The Appellant, who was only two years old, was left in England, as was also Augustus George, who died in infancy. In May 1803, Sir T. J. Clavering was detained in [667] France as a prisoner of war under the edict of Napoleon, and he remained in that country till the peace in 1814. James, while in France, went to French schools conducted by Roman...
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