Name Worship and Statutory Interpretation in the Law of Wills
| Author | O. M. Stone |
| Date | 01 November 1963 |
| DOI | http://doi.org/10.1111/j.1468-2230.1963.tb02233.x |
| Published date | 01 November 1963 |
NAME WORSHIP AND STATUTORY
INTERPRETATION IN THE
LAW
OF
WILLS
Re
Neeld
l
is
on
any view an important decision of the
Court
of
Appeal, overruling as
it
does two separate lines of authority
on
the
validity of name and arms clauses and
on
the order of administra-
tion of assets of the estates of deceased persons.
The existence of name clauses
or
name and arms clauses casts
a curious and revealing light
on
the English character and traditions.
Essentially these clauses arise out of a
gift
of land which is made
conditional
on
the beneficiary’s adoption of a surname
or
family name
other than that he would normally bear, and perhaps also
on
adopt-
ing the coat of arms of those who bear the chosen family name.
So
seen, the institution bears some resemblance, not only to the feudal
doctrine that an infant heir was an adjunct to his lands, but even
to the Roman law of adoption, the object of which was to per-
petuate a clan
or
tribe. With a name and arms clause, the object
is
to attempt to ensure, by
a
conditional gift, that members of other
families assume names which,
in
the natural course of events, would
otherwise cease to be connected with particular land and armorial
bearings. The underlying motive of perpetuating by
a
fiction the
name of
a
particular family in a particular part
of
the country is a
curious one in the circumstances of today, the more
so
in that most
gifts conditional
on
the adoption of
a
name and arms clause are
effected by will,
so
that the testator is providing for the perpetua-
tion of a name
in
a world from which he himself will have departed.
It
seems to involve personification of the land itself, and an attempt
to assuage its pretended allegiance to a particular family name.
The general rule as to conditions subsequent, whether attached
to a devise
or
a bequest, is that
if
the condition is impossible,
or
uncertain,
or
illegal,
or
contrary to public policy the condition fails
and the gift takes effect free of the condition. There
is
thus
no
particular incentive for the courts to uphold conditions subsequent
in
order to avoid the failure of gifts.
The two kinds of conditions subsequent which in recent years
have come most frequently before the courts have been (a) con-
ditions as to marriage with persons of a particular race
or
religion
and (b) name and arms clauses.
Since
Clayton
v.
Ramsden
*
the courts have not been favourably
disposed towards conditions providing for forfeiture
on
marriage
.with persons of,
or
not of, a particular race
or
religion. In that
1
[1%2]
Ch.
643
(C.A.),
Lord Evershed
M.R.,
Upjohn
and
Diplock
L.JJ.
2
[1943]
A.C.
320. 652
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