Elliot v Lord Joicey

JurisdictionUK Non-devolved
JudgeLord Tomlin,Lord Russell of Killowen,Lord Macmillan
Judgment Date14 February 1935
Judgment citation (vLex)[1935] UKHL J0214-1
Docket NumberNo. 9.
CourtHouse of Lords
Date14 February 1935
Elliot
and
Lord Joicey and Others

[1935] UKHL J0214-1

Lord Tomlin.

Lord Russell of Killowen.

Lord Macmillan.

House of Lords

After hearing Counsel, as well on Friday the 7th, as on Thursday the 13th, days of December last, upon the Petition and Appeal of Robert Barnewall Elliot, of "Golden Grove," in the County of Carmarthen, 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 9th of October 1933, might be reviewed before His Majesty the King, in His Court of Parliament, and that the said Order 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 the Right Honourable James Baron Joicey, the Honourable John Pakenham Joicey-Cecil, Ernest Claude Meysey Thompson, James Kerr Elliot and James Greenshields Greenshields Leadbetter, 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 9th day of October 1933, complained of in the said Appeal, be, and the same is hereby, set aside, and That the Order of the Honourable Mr. Justice Clauson, of the 24th day of May 1933, be Varied, by inserting therein immediately after the words "now belongs" the words "as to one moiety thereof" and by adding at the end of the declaration therein contained, the words "and as to the other moiety thereof to the defendant Robert Barnewall Elliot"; and by striking out the order therein contained as to costs, and substituting in its place an order directing that the costs of all parties be taxed as between solicitor and client and paid out of the total funds before division into moieties; and that subject to such Variation, the said Order be, and the same is hereby, Affirmed: And it is further Ordered, That the costs of all parties, incurred by them in the Court of Appeal, and also the costs of all parties, other than James Kerr Elliot, incurred by them in respect of the said Appeal to this House, be taxed as between solicitor and client and paid out of the total funds before the division, the amount of such last mentioned costs 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 Tomlin

My Lords,

1

I have had the advantage of considering the opinion which has been prepared and is about to be read by my noble and learned friend, Lord Russell of Killowen.

2

In the conclusion of that opinion and in the reasoning on which it is based I concur in all respects.

3

It is therefore unnecessary for me to do more than state shortly the main reasons why I think as I do that the Courts below have erred.

4

I may note here that the attention of the Courts below was not directed to the fact that Mrs. Elliot was domiciled in Scotland and that her will falls to be construed by Scots law.

5

This oversight, however, raises no difficulty. Your Lordships' House, as the ultimate Appellate Tribunal both of England and of Scotland, does not require proof of the law of either country, whether the case under consideration be an English case in which a question of Scots law arises, or a case from Scotland in which a question of English law arises (see Cooper v. Cooper, 13 A.C. 88, at p. 101).

6

The first question raised by the will under consideration is one of construction. The critical words are found in the two phrases:

"In the event of such child of mine leaving any issue him or her surviving" and "in the event of such child of mine not leaving any issue him or her surviving".

7

I cannot think that upon the true construction of these words a posthumous child of a child of the testatrix is issue left by the parent him surviving. The expression "leaving any issue him or her surviving" is not in its ordinary and natural meaning appropriate to include a posthumous child, and there is nothing in my opinion in the context to justify extending the meaning.

8

On the one hand it is no answer to say that the testatrix intended to cover every contingency, because upon either construction every contingency is covered. Nor is it permissible to adapt the meaning to give effect to what it may be thought would have been the wish of the testatrix if her attention had been called to the possibility of that happening which in fact happened.

9

On the other hand, the period of distribution is the date of the death of the parent of the posthumous child. The parent or the brothers of the parent are according to the event the donee or donees under the appointment. The posthumous child is not a donee nor even an object of the power. There is nothing in the language of the will to suggest or justify the holding up of the distribution to meet the contingency of the birth of a posthumous child who when born will not be and cannot be a donee under the appointment.

10

It remains therefore to consider whether there can be applied to this case the doctrine based upon the maxim "fœtus in utero habetur pro jam nato ubi agitur de ejus commodo."

11

So far as the English law is concerned the doctrine in question was explained in your Lordships' House in Villar v. Gilbey, 1907, A.C. 139.

12

If the decision in Burns Trustees v. Burns, 1917, Sess. Ca. 117, is to be accepted as good law the doctrine is not recognised in Scotland.

13

Having regard to the view which I take as to the limits of the doctrine it is not necessary for the purposes of this case expressly to deal with the decision in Burns Trustees v. Burns, but I desire to say that as present advised it seems to me to be in conflict with the statements of writers of authority (e.g., see Lord McLaren's work on Wills and Succession, 3rd Edit., Vol. I, 696), and to be unsupported by any earlier decision.

14

But assuming that the doctrine has effect in Scotland and that in regard to it English law and Scots law are the same, I am of opinion that the doctrine cannot be applied in the present case.

15

It is admitted that there is no example in the books of the doctrine, which is really an artificial rule of construction, being applied to the word "surviving" or to the phrase "leaving surviving", but assuming that in appropriate circumstances it is applicable, as I think it is, to this word or phrase, the question is are the circumstances appropriate here, or in other words is it within the meaning of the rule for the child's benefit to apply the rule?

16

The child does not take and could not take any benefit directly under the gift. The Courts below have taken the view that it must be for the child's benefit as a general proposition that its parent's estate should be increased. The application of this artificial rule of construction cannot of course depend upon the way in which the parent in fact disposes of his estate or upon his domicil at his death or upon the accident of the law applicable to his estate at his death.

17

I do not think the enrichment of the parent's estate is a benefit to the child within the meaning of the rule. In my opinion the rule contemplates a benefit taken by the child under the instrument as a result of the application of the rule. To give to the rule any other operation would be to make it a rule of great uncertainty and difficult of application.

18

The Courts below have based themselves upon a decision of Chitty J. in Re Burrows, 1895, 2 Ch. 487, and a decision of Joyce J. in Re Griffiths, 1911, 1 Ch. 246.

19

The former decision given before Villar v. Gilbey came to your Lordships' House, in my opinion was wrong and cannot stand with Villar v. Gilbey, while the decision of Joyce J. was one construing a section of the Wills Act and therefore not strictly in pari materia, though it must not be understood that as at present advised I accept it as correct.

20

My Lords, the result is that in my opinion this Appeal should succeed. For the reasons about to be indicated by my noble and learned friend Lord Russell of Killowen, the order to be made by your Lordships' House should be in the form which he has prepared, and I move your Lordships accordingly.

Lord Russell of Killowen

My Lords,

21

Under the will of her father (who died in the year 1881) Mrs. Elliot had a special power of appointment over certain funds, exerciseable in favour of her issue born in her lifetime. The funds in question represented a legacy of £50,000 and a share of residue which had been bequeathed by her father's will and in which she took a life interest.

22

She made her will on the 1st March, 1910, being then the wife of Thomas Robert Barnewell Elliot, of Harwood, Hawick, in the County of Roxburgh, and thereby appointed the funds which were subject to her power by providing that the Trustees of her father's will should hold them in trust for her children who should survive her and, being male, should attain the age of 21 years or, being female, should attain that age or marry under it, and if more than one in equal shares. After certain provisions cutting down shares of daughters and younger sons which need not be referred to in greater detail, she proceeded to settle the shares of her children in manner following:—she directed that during the period of 21 years from her death the said Trustees should pay the income of each child's share to such child if he or she should so long live, and if such child should die within the said period of 21 years then (I quote the words of the will)—

"the said trustees shall hold such share and the income thereof in trust for such person or...

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