Follett, decd., Re. Barclays Bank Ltd v Dovell
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE JENKINS,LORD JUSTICE ROMER |
| Judgment Date | 17 March 1955 |
| Judgment citation (vLex) | [1955] EWCA Civ J0317-1 |
| Court | Court of Appeal |
| Date | 17 March 1955 |
[1955] EWCA Civ J0317-1
In The Supreme Court of Judicature
Court of Appeal
The Master Of The Rolls (Sir Raymond Evershed)
Lord Justice Jenkins and
Lord Justice Romer.
Mr I. J. , Q. C., and Mr G. H. Crispin, instructed by Messrs , Cilke , agents for Messrs Campion Gymons & Co.,, appeared for the Appellant (the Defendant Beryl Emily Cecil Dovell).
In this rather curious case I have, for my part, come to a different conclusion from that of Mr. Justice Rexburgh, though I confess to a feeling of sympathy with him in the attempt which he make to remedy what I think may fairly be called a manifest error by what has to be found to be a no less manifest corrigendum. In that sentence, I think, lies the difficulty. I will follow Mr. Justice Vaisey in the case of In re Smith: Vessan v. Smith, reported in 1948. Chancery Division at page 49, in citing as the proper principle in cases of this character a passage which the learned judge took from the seventh edition of Jarman on Wills, volume 1, page 556: "Where it is clear on the face of a will that the testator has not accurately or completely expressed his meaning by the words he has used, and it is also clear what are the words which he has omitted, those words may be supplied in order to effectuate the intention, as collected from the context".
As I ventured to observe during the argument, there is, perhaps, some analogy, and, if so, a natural analogy, to the jurisdiction of the equity courts in rectifying instruments, a jurisdiction exercised when it is established not only that the instrument as it has been executed does not accord with the intention of the parties to it but when it is also shown what exactly their true intention was.
I must, however, first lay a foundation for my conclusion by a reference to the facts, though the reference is not of any length. We are concerned with the Will dated in August, 1923, of one Georgina Sarah Follett. She made elaborate provisions to benefit various collateral relations, for she was herself a spinster. One of them was a Mrs. Ella Edmonds. In paragraph 5, sub-paragraph (c), she provided that the present Appellant, being the daughter of the niece whom I have last mentioned, Mrs Edmonds, should have a protected life interest after the death of the two nieces; and then, in sub-paragraph (d) of the same paragraph, she made the disposition which has caused the present difficulty: "On and after the death of thesaid Beryl Edmonds my Trustees shall hold my residuary trust fund and the future income thereof in trust for all or such one or more exclusively or others of her child or children or remoter issue or any other person or persons as she" — that is Beryl Edmonds — "should by deed or deeds revocable or irrevocable or by will or codicil without transgressing the rules against perpetuities appoint and in default of or subject to any such appointment in trust for her next of kin".
That paragraph shows at its beginning and at its end strong marks of affinity to the elaborate formulae which form part of the stock-in-trade of the conveyance: but in the middle it falls far short of any such elegance. Indeed, as I have, I think, already indicated, it is obviously wrong, and wrong in two respects. In the first place, the words which I emphasised in reading, "or others" immediately after "such one or more exclusively" are obviously there by mistake for something else. Secondly (though this error is not quite of the same quality) it seems equally plain that, with regard to the words which next ensue, "of her child or children or remoter issue or any other person or persons as she should by deed or deeds revocable or irrevocable", etc., something has also gone amiss; either some provisions have been accidentally omitted in copying; or in the course of the actual building up of the final form of this Will something originally in it has been struck out, and the striking out have not been properly carried out or sufficiently extensive.
Mr Justice Roxburgh, as I have earlier said, came to the conclusion (and he called it a compelling conviction) that he was not only able to discern the errors but also to discern exactly what it was that had gone wrong, and what were the words which should have been and were intended to have been incorporated; and my brother was correct in saying that only upon the basis that he could entertain such a compelling conviction could he do the work, in effect, of remodeling thisdisposition. Otherwise, as he would be the first to agree, he would plainly he going beyond the permitted limits of judicial interpretation, however tempting it may sometimes be for a judge to improve upon the performance of testators.
The solution which the learned Judge accepted was this. He said that these words "or others" were a plain slip for the well-known formula "of the other or others". He was referred to the form which is to be found in Key and Elphinstone's Precedents in Conveyancing, 11th Edition, at pages 901 and 902. It seemed to him that at its beginning and at its end this clause so clearly followed the precedent in the book I have mentioned, and the one error which I have already mentioned was so plainly caused by a slip, an accidental omission of some of the words to be found in that precedent, that he was able to go on to what he felt to be not only the compelling but also the logical conclusion that this sub-paragraph (d) was intended to be a reproduction (with only the essential changes, having regard to the personality of the donee of the power of appointment) of the precedent clause which I have mentioned. When he had reached that stage in the argument, all else followed; he was able to read in words which entirely transformed this sub-paragraph (d) and resulted in the power of appointment given to Mrs. Dovell, as she nowis, being a strictly limited power to appoint among children or issue.
I should perhaps have said, and I will say it now, that, in the absence of some such emendation, it seemed to the learned Judge (and I agree with him, and, indeed, Mr. Arnold has not contended to the contrary in this Court) that the words as they stand, and if they must be construed without further auditions, can only mean that Mrs. Dovell has a general power of appointment. In that event, of course, the references to the "children or remoter issue" were quite unnecessary and otiose. And as my brother Jenkins pointed out during the course of the argument, if this was really intended to confer a general powerof appointment, then indeed it was a slavish following of an inappropriate precedent to include the caution against transgressing the rule against perpetuities; for the real necessity to put in that caution is, of course, referable to a special power of appointment which must take effect, for the purposes of the perpetuity rule, as though the appointee's directions were written into the instrument conferring the power. But, after all, that again, as I think, is merely to say in other words what I have already more than once said, namely that something clearly has gone wrong.
I must now examine whether it is really a case in which the necessary compelling conviction emerges from the material which we have. I confess that I am not so convinced myself.
In the first place, I feel some doubt about the reference to Key and Elphinstone. We have not been referred to the numerous alternative precedents which can be found in the books. Conveyancers of experience will have in mind the general shape of powers of appointment of this kind. But, as Mr. Lindner pointed out in the course of his argument, if you lay this clause alongside the passages from pages 901 and 902 of Key and Elphinstone, you will find that there is no precise verbal correspondence; and in the absence of precise verbal correspondence I am not myself satisfied that it is right to assume that it was this textbook which Miss Georgina Follett, or these who were doing this testamentary work for her, had by their elbows.
I do not propose to take time by pointing out the verbal differences, save in the one important instance of the first error, namely the words "or others". It is not the fact that this precedent states "exclusively of the other or others"; it puts it in fact the other way round, "exclusively of the others or other". The point is, of course, a small one;...
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