Knight, deceased, Re Midland Bank Executor Company v Parker
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS |
| Judgment Date | 16 April 1957 |
| Judgment citation (vLex) | [1957] EWCA Civ J0416-2 |
| Court | Court of Appeal |
| Date | 16 April 1957 |
[1957] EWCA Civ J0416-2
In The Supreme Court of Judicature
Court of Appeal
The Master of the Rolls
(Lord Evershed),
Lord Justice Hodson and
Lord Justice Romer.
The Hon. CHARLES RUSSELL, Q.C. and MR BOWER ALCOCK (instructed by Messrs Tuck & Mann, agents for Messrs Wallace, Robinson & Morgan, Birmingham) appeared as Counsel on behalf of the Appellants.
MR R.W. GofF, Q.C. and MR M.M. WHEELER (instructed by Messrs Peake & Co., agents for Messrs Harold Gee & Williams, Bristol) appeared as Counsel on behalf of the Respondents other than the Trustees.
MR S.W. TEMPLEMAN (instructed by Messrs E.B.V. Christian & Co., agents for Messrs Scott & Richards, Teignmouth) appeared as Counsel on behalf of the Respondent Trustees.
: The Judgment I am about to read is the Judgment of the Court.
Under the Will and Codicil of Frank Knight, who died in the year 1919, his residuary estate was (in the events which have happened) directed to be held by his Trustees, as to one-half, upon trust (subject to a life interest therein of his widow) to pay the income thereof, without power of anticipation during coverture, to his daughter Mrs. Linda Margarita Wynn for her life; and after her death upon trust for the children or remoter issue of Mrs. Wynn "to be born and take vested interests within 21 years after her death" at such times and ages and in such shares "and with such future or other trusts for their benefit and such provisions for their respective advancement… and maintenance and education at the discretion of my trustees or any other person or persons" and in such manner as Mrs. Wynn should by deed or deeds revocable or irrevocable or by Will or codicil appoint; and in default of and subject to any such appointment for the children of Mrs. Wynn, on attaining the age of 21 or (in the case of daughters) earlier marriage, in equal shares; and there was a provision in usual form for hotchpot applicable to any unappointed share of any child of Mrs. Wynn in whose favour Mrs. Wynn had made any appointment.
In the year 1921, upon the occasion of the marriage of one of her daughters to Mr. Leslie Edward Parker, Mrs. Wynn appears, by an irrevocable deed, to have appointed to that daughter a third (she having then three children) of the moiety of her father's residuary estate, subject to the life interest of Mrs. Knight (who was then still living) and of herself. This Deed of Appointment has been lost; but notice was given to Mr. Knight's trustees by the trustees of Mrs. Parker's marriage settlement (to whom Mrs. Parker had transferred her appointed share) of those facts: and from that notice it appears that Mrs. Wynn did not release (as she could not have done in her husband's lifetime) her own life interest in the appointed share of her father's estate.
Mrs. Wynn died on the 7th March, 1955. She was survived by one only of her three children, namely, Mrs. Stacpoole-Ryding, the eighth Defendant in this action and one of the Appellants in this Court. Mrs. Parker had died in the year 1941 survived by five children, being the first five Defendants, represented before us by Mr. Goff. Mrs. Wynn's third child, her son, died in the year 1945 leaving him surviving his widow and executrix, the last Defendant (also an Appellant before us) and two children, the sixth and seventh Defendants. Of these the second was an infant at the time of the issue of the, Originating Summons, but is now of full age; and we were informed by Mr. Russell for the Appellants that the interests of these two Defendants could be regarded as identical with the interest of their mother and that they were not, accordingly, participating in the appeal. Mr. Knight's widow died some years ago.
The question before us is whether Mrs. Wynn's Will operated as an exercise of the power of appointment, already recited, given to her by the Will of Mr. Knight. The Will of Mrs. Wynn is dated the 20th September, 1951: and the first thing to be noted about it is that apart from legacies to her sister, Mrs. Lever, and to her solicitor, a Mr. Scott, the only beneficiaries there under are her surviving daughter, daughter-in-law, and grandchildren, to all of whom she referred (as she did also in the case of her sister) in terms of affection.
Since the solution of the question presented to us depends upon the true interpretation to be given to the language of Mrs. Wynn's Will, it is necessary to refer to it at some length. By the first clause she appointed the first Defendant, the Midland Bank Executor and Trustee Company Limited, to be the Trustee and Executor of the Will with the right to remuneration for their services in accordance with their published handbook: and she expressed the desire that, unless the first Plaintiff saw reason to the contrary, her solicitor, Mr. Scott, should be employed as such in connection with her estate.
By clause 2 of her Will Mrs. Wynn gave legacies to her sister, to her daughter-in-law, to Mr. Scott, and to her grandchildren – the legacies to the last mentioned being equal; and she directed that "all duties payable in respect" of the legacies "should be paid as part of my testamentary expenses out of my general personal estate".
By clause 3; Mrs. Wynn gave, devised and bequeathed: "all the residue and remainder of my real and personal estate whatsoever and whosoever whether in possession or reversion of which I may die possessed and including any property over which I may have any power of disposition at the date of my death unto the Company upon trust to sell call in and convert the same into money with full power for the Company in their absolute discretion to postpone such sale or conversion of any part of parts of my said estate for so long as they shall think fit without being answerable for any loss resulting from such postponement and I direct that the Company shall out of the proceeds of such sale calling in and conversion and out of my ready moneys pay my funeral and testamentary expenses and just debts and the legacies given by this my Will or any Codicil hereto and the duties payable on such legacies and bequests and shall stand possessed of the residue of the said moneys and any part or parts of my said estate remaining unconverted (being and hereinafter called 'my residuary estate') Upon Trust (a) as to "one-third share thereof" for her daughter Mrs. Stacpoole-Ryding absolutely, with a provision in favour of that daughter's children in the event (which did not happen) of her predeceasing Mrs. Wynn; (b) as to "a further one-third share thereof" to be divided equally between Mrs. Parker's children, the first five Defendants, and (c) Mrs. Wynn directed that the first Plaintiff should "stand possessed of the remaining one-third share of my residuary estate" for the sixth and seventh Defendants (the children of her deceased son) in equal shares.
It appears from the terms of the Originating Summons that the first Plaintiff (the Midland Bank Executor and Trustee Company Limited) are now, together with Mrs. Wynn's sister, Mrs. Lever, the trustees of the Will of Mr. Knight, though it does not appear when they were so appointed. At the date of Mrs. Wynn's appointment in 1921 the trustees of Mr. Knight's Will were Mrs. Knight, Mrs. Wynn's husband and two other persons not parties to the present proceedings. Mr. Wynn and Mrs. Lever were (at that time) the trustees with another individual trustee of Mrs. Parker's marriage settlement.
It remains only to add that Mrs. Wynn had not at the date either of her Will or her death any power of appointment, general or special, other than her special power under Mr. Knight's Will. There is no evidence of any circumstances from which it might have been inferred that Mrs. Wynn either had or had not in mind that she had a testamentary power to appoint under her father's Will: or had or had not in mind the terms of her father's Will or the fact that she had made the appointment in Mrs. Parker's favour in 1921. But since (as we were informed) Mrs. Wynn's Will was prepared by a solicitor, we may legitimately observe that the choice of the formula "including any property over which I may have a power of disposition at the date of my death" cannot fairly or easily be attributed to a skilled draftsman who had been informed of the existence of the special power under Mr. Knight's Will, let alone of its terms and the fact of its having already been exercised - or indeed of any limited power. Mrs. Wynn appears to have been in receipt of the income of a moiety of Mr. Knight's residuary estate up to the date of her death. It was stated in evidence that the value of that moiety was at Mrs. Wynn's death about £70,000; but that Mrs. Wynn had also free estate of her own of a substantial amount.
The question, then, is that which we have already stated - should the Will of Mrs. Wynn be taken, upon its true effect and interpretation, to have exercised her limited power of appointment under Mr. Knight's Will? We were informed that we could assume (a) that the first five Defendants were now equally entitled between them to the subject-matter of Mrs. Wynn's appointment in their mother's favour in 1921 and would be likewise entitled to any share of the moiety of Mr. Knight's estate going in default of appointment to Mrs. Parker's estate: and (b) that the sixth and seventh Defendants would similarly be entitled equally between them to any share of the same moiety going, in default of...
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