Clayton v Ramsden

JurisdictionEngland & Wales
JudgeLord Atkin,Lord Thankerton,Lord Russell of Killowen,Lord Wright,Lord Romer
Judgment Date04 December 1942
Judgment citation (vLex)[1942] UKHL J1204-1
Date04 December 1942
CourtHouse of Lords
Clayton and Another
and
Ramsden and Others

[1942] UKHL J1204-1

Lord Atkin

Lord Thankerton

Lord Russell of Killowen

Lord Wright

Lord Romer

House of Lords

After hearing Counsel, as well on Wednesday the 28th, as on Thursday the 29th, days of October last, upon the Petition and Appeal of Squadron Leader Harold Clayton, of H.G. Group, Andover, in the County of Hampshire, and Edna Violet Clayton, his wife, of A.T.A. Training School, White Waltham, Maidenhead, in the County of Berkshire, 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 1st day of August, 1941, so far as regards the words, "This Court Doth Order that the said Order be discharged so far as it declared that upon the true construction of the said Will the conditions imposed by Clause 8 of his said Will are void for uncertainty and in lieu thereof This Court Doth Declare that upon the true construction of the said Will the conditions imposed by Clause 8 thereof are not void for uncertainty and that by reason of the said conditions the trusts powers and provisions in the said Will contained in favour of the Defendant Edna Violet Clayton and her husband and issue ceased and determined on her marriage on the 5th March 1927 to the Defendant Harold Clayton as if she had died on that date", might be reviewed before His Majesty the King, in his Court of Parliament, and that the said Order, so far as aforesaid, might be reversed, varied or altered or that the Petitioner 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 James Hildebrand Ramsden, Olga Esther Roys, Daphne Alice Bates, Iris Anne Roys, Yvonne Mary Roys, Anglo-European Finance Corporation, Limited, Frank Maydew Duncalf, Arthur Norman Patterson, Amelia Jacobs, Sydney Hunt, Simon Magnus Castello and Kenneth Michael Jacobs, 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 1st day of August 1941, so far as complained of in the said Appeal, be, and the same is hereby, Reversed, and that the Judgment of the Honourable Mr. Justice Bennett, of the 22nd day of May 1941, be, and the same is hereby, Restored, so far as it declared that upon the true construction of the Will of the Testator Barnett Samuel the conditions imposed by Clause 8 of his said Will are void for uncertainty: And it is further Ordered, That the Costs of all parties, in respect of the said Appeal to this House, be taxed as between Solicitor and Client, and paid out of the capital of the residuary estate of the Testator, the amount thereof to be certified by the Clerk of the Parliaments: And it is also further Ordered, That the Cause be, and the same is hereby, remitted back to the Chancery Division of the High Court of Justice, to do therein as shall be just and consistent with this Judgment.

Lord Atkin

My Lords,

1

I have had the advantage of reading in advance the opinion about to be delivered by my noble and learned friend Lord Romer, and as I agree with his reasoning and its result I need only add a few words. Like him I am unable to accept the view that "not of Jewish parentage and of the Jewish Faith means not of parentage of the Jewish Faith and of the Jewish Faith". If the testator had meant this he would have said so, and the variation in the turn of the phrase seems to me in itself a strong indication that he did not so mean. I think that while it would be sufficient to defeat the forfeiture that either limb of the composite clause should be uncertain, in this case neither limb achieves the necessary degree of certainty. For my own part I view with disfavour the power of testators to control from their grave the choice in marriage of their beneficiaries, and should not be dismayed if the power were to disappear. But at least the control by forfeitures imposed by conditions subsequent must be subject to the rule as to certainty prescribed by this House in Clavering v. Ellison, 7 H.L.C. 707, and judged by the test there prescribed this forfeiture fails. It is true that, as contended by Mr. Danckwerts, on any possible construction of the clause Mr. Clayton, an English Wesleyan, was disqualified. But any possible construction is not the question: the actual construction must be certain: and as it is not the Appeal succeeds.

Lord Thankerton

My Lords,

2

I also have had the opportunity of considering the opinion about to be delivered by my noble and learned friend Lord Romer, and I agree with it, and also with the remarks just made by my noble and learned friend on the Woolsack.

3

Lord Russell of Killowen (READ BY LORD THANKERTON)

My Lords,

4

This is a case in which the testator has sought, in the words of the Master of the Rolls, to direct the lives of his children from the grave. The particular matter for our consideration is his attempt, by means of a forfeiture clause to take effect on the happening of a condition subsequent, to control his daughter Edna's choice of a husband.

5

By his will he bequeathed a large pecuniary legacy and a share of residue upon trust for his daughter Edna for life, and after her death upon trust for her issue as she should by deed or will appoint, and subject thereto for her children as therein mentioned in equal shares, with a power to his daughter to appoint a life or less interest to a surviving husband. By clause 8 of his will the Testator declared that if his daughter (I now quote the relevant words),

"shall at any time after my death contract a marriage with a person who is not of Jewish parentage and of the Jewish faith then as from the date of such marriage all the trusts powers and provisions in this my will contained … in favour of ( a) my said … daughter … contracting such marriage or ( b) the person with whom … she shall contract such marriage or any subsequent marriage or ( c) any child or children thereafter to be born of … her or ( d) the issue of such last mentioned child or children shall cease and determine and be no longer exercisable and this my will shall thenceforth operate and take effect as if my said … daughter … had died at the date of such marriage."

6

There can be no doubt as to the stringency of this clause if it be effective. Once the terms of the condition of defeasance have been fulfilled the daughter, her husband, her children by him and their issue, and any aftertaken husband, her children by him and their issue are one and all deprived of all the interest previously given by the will.

7

The testator died on the 2nd June, 1925, and his daughter Edna married Harold Clayton on the 5th March, 1927. Harold Clayton is not in any possible sense of the words a person of Jewish parentage, nor has he been at any time in any possible sense of the words a person of the Jewish faith. That is admitted by Mr. and Mrs. Clayton who are the Appellants here. The question for our decision is whether the trusts in the will in favour of Mrs. Clayton, her husband and issue, ceased on the marriage. The answer depends upon whether the condition of defeasance is a valid condition.

8

Bennett J. declared that the condition was void for uncertainty.

9

This decision was reversed in the Court of Appeal, which discharged the above declaration and declared that upon the true construction of the will the conditions imposed by clause 8 thereof were not void for uncertainty, and that by reason of the said conditions the trusts, powers and provisions in the said will contained in favour of Mrs. Clayton and her husband and issue ceased and determined on her marriage on the 5th March, 1927, as if she had died on that date.

10

It is only against this portion of the order made by the Court of Appeal (which covers other matters) that the present appeal is brought. My Lords, for the reasons which I will indicate I am of opinion that your Lordships should hold this condition of defeasance to be void, and allow this appeal.

11

The Courts have always insisted that conditions of defeasance, in order to be valid, should be so framed that the persons affected (or the Court if they seek its guidance) can from the outset know with certainty the exact event upon the happening of which their interests are to be divested. The principle was enunciated many years ago by Lord Cranworth in ( Clavering v. Ellison 7 H.L.C. 707, at p. 725), in the following words:—

"Where a vested estate is to be defeated by a condition on a contingency that is to happen afterwards, that condition must be such that the Court can see from the beginning, precisely and distinctly, upon the happening of what event it was that the preceding vested estate was to determine."

12

In all such cases that is the test which has to be applied to the particular condition which the testator has chosen to impose. It was recently applied by the Judicial Committee in the case of ( Sifton v. Sifton 1938, A.C. 656) to a condition of defeasance in a will as to the testator's daughter "continuing to reside in Canada." The condition was held void. The testator clearly having intended that his daughter should be at liberty to leave Canada for some purposes for some periods, he had failed to define either the purposes or the periods; hence the uncertainty which invalidated the condition.

13

Let me now apply the principle to this condition. The crucial words are "who is not of Jewish parentage and of the Jewish faith."

14

A preliminary question was raised. Is this one condition, or do the words impose alternative conditions upon the happening of either of which a forfeiture occurs? This is a question of construction, separate from the main question. The...

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