Re Allen, decd. Faith v Allen
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE BIRKETT,LORD JUSTICE ROMER |
| Judgment Date | 30 July 1953 |
| Judgment citation (vLex) | [1953] EWCA Civ J0730-5 |
| Date | 30 July 1953 |
| Court | Court of Appeal |
[1953] EWCA Civ J0730-5
In The Supreme Court of Judicature
Court of Appeal
The Master of the Rolls
(Sir Raymond Evershed)
Lord Justice Birkett
and
Lord Justice Romer
In The Matter of the Trusts of the Will dated 4th November 1906 and of the third Codicil thereto dated 10th November 1907 of Henry Allea
-and-
In The Matter of an Indenture made the 24th April, 1909
Mr. J.P. HUNTER-BROWN (instructed by Messrs. Thicknesse & Hull and Messrs. Capel, Cure & Ball) appeared on behalf of Maria Eileen Viscomtesse de Serrant, Appellant (Defendant).
Mr. N.P.M. ELLIS (instructed by Messrs. Hore, Pattison, Bathurst, Summerhays & Co.) appeared on behalf of Mr. Bertram Wedgwood Allen, Respondent (Defendant).
Mr. R.O. WILBERFORCE (instructed by Messrs. Thicknesse & Hull and Messrs. Capel, Cure & Ball) appeared on behalf of Mrs. Florence Catherine Faith, Respondent (Plaintiff).
By a third codicil dated 10th November, 1907, to his Will made in the previous year the Testator, Henry George Allen, gave and devised his dwellinghouse "Paskeston" in Pembrokeshire and certain other property, subject to certain prior limited interests which determined in 1952, "to the eldest of the sons of" his nephew Francis S. Allen "who shall be a member of the Church of England and an adherent to the doctrine of that Church." The codicil further provided that "in case there shall be no son of the said Francis … who shall be a member of the Church of England or an adherent to the doctrines" (sic) "of that Church I devise and bequeath the said dwelling-house and other property" in the events which have happened to Wilfred Baugh Allen in the Codicil called Judge Wilfred Allen and his heirs. The Testator died in November 1908.
The present proceedings were begun by way of Originating Summons, one of the present personal representatives of the Testator being the Plaintiff. The Defendants, in addition to a life tenant of the premises in question who has since died, consisted of the personal representatives of two of the sons of Francis S. Allen, a third of his sons, the personal representative of Wilfred Baugh Allen and the personal representative of the Testator's heir-at-law. The first question asked by the Summons was whether the devise in favour of the eldest of the sons of Francis S. Allen, already recited, was valid or void for uncertainty. The second and third questions arose only upon an answer being given to the first in favour of the validity of the devise. The fourth question asked whether, in the event that the devise was held void, the subject-matter of the devise devolved upon Wilfred Baugh Allen or his estate by virtue of the later direction inthe Codicil which I have also quoted or devolved as upon the Testator's intestacy. The remaining questions related to matters not relevant to this appeal.
By his order of the 4th March, 1953, Mr. Justice Vaisey declared in answer to the first question that the devise in favour of the eldest of the sons of Francis S. Allen was void for uncertainty. He answered the fourth question in a sense favourable to the personal representatives of Wilfred Baugh Allen. The reasons for the learned Judge's conclusion are reported in the Law Reports at 1953, 1 Chancery Division, page 116. In the view which the Judge took nothing turned upon, the difference in language in the two references in the Codicil to membership of the Church of England and adherence to its doctrine or doctrines; for he held both references to be too uncertain to be capable of being effective.
The personal representative of the eldest of the sons of Francis Allen (but neither of her Do-defendants in a similar interest) has appealed to this Court against Mr. Justice Vaisay's answer to the first question in the Summons and the only Respondents before us (apart from the Plaintiff) are the personal representatives of Wilfred Baugh Allen. The representative of the Testator's heir-at-law has not himself appealed and was not represented before us.
At the beginning of his Judgment, containing a considerable analysis of the significance of membership of the Church of England and of the character of the doctrines of that Church (matters upon which the learned Judge has notably great knowledge and experience) Mr. Justice Vaisey referred to the relevant formula as a "description, qualification or condition" but it is I think clear fromlater passages (see for example page 121) that he regarded it as either a condition precedent or a qualification distinct in either case from a condition subsequent. The Judge was, in my opinion, plainly right in his view that the formula here in question is not a condition subsequent. In my judgment the effect of such a formula as part of a condition subsequent differs from its effect in a condition precedent or as part of a qualification or limitation. I understand from the passage in his Judgment referring to the case of ( Clayton -v- Ramsden 1943 Appeal Cases, page 320) that the Judge was also of that opinion and I agree with him in differing from the New Zealand case of In re Biggs in so far as the Judge in that case expressed the contrary view.
A condition subsequent operates to divest or determine a gift or estate previously or otherwise vested; so that if the condition be void the gift or estate remains. It has been long established that the Courts (which are inclined against the divesting of gifts or estates already vested) will hold & condition subsequent void if its terms are such that (apart from mere difficulties of construction of the language or of the ascertainment of the facts) it cannot be clearly known in advance or from the beginning what are the circumstances the happening of which will cause the divesting or determination of the gift or estate. The strictness of the special rule as to conditions subsequent was the basis of all the opinions of the noble Lords in Clayton -v- Ramsden and was thus expressed by Lord Russell of Killowen (at page 326): "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 withcertainty the exact event on the happening of which their interests are to be divested. The principle was enunciated many years ago by Lord Cranworth in Clavering -v- Ellison 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. "I feel, therefore, no doubt that if the present formula constituted a condition subsequent it would for the reasons fully set out by Mr. Justice Vaisey be held to be void — its second part falls clearly, I think, within the reasoning and language of Lord Russell and Lord Romer in ( Clayton -v- Ramsden at pages 329 and 334) to which I shall later again refer.
It appears that the avoidance of a condition precedent may or may not (in the case of personalty) carry with it the avoidance of the gift according as the condition is the sole motive of the gift (see In re Piper, 1946, 2 All England Reports, page 503). In the present case, if the formula constitutes a condition precedent, I will assume that failure to satisfy the condition will involve failure to take the benefit of the devise. And the same result is equally (if not more) clear if the formula is not a condition at all but part of the description of the devisee (as though it were to the eldest son who should have red hair); in other words, is a limitation or qualification, as I think it is (see for example per Mr. Justice Tomlin in In re Wilkinson, 1926 Chancery Division, page 842, and In re Wolfe decided by Mr. Justice Herman in May of the present year but not yet reported). In any case and whether the formula be a condition precedent or aqualification it seems to me that no such general or academic test is called for as a condition subsequent requires. All that the claiming devisee has to do is at the relevant date to establish, if he can, that he satisfies the condition or qualification whatever be the appropriate test. If the formula is such as to involve questions of degree (as prima facie is implicit in any requirement of "adherence" or "attachment" to a particular faith or creed) the uncertainty of the test contemplated may well invalidate the formula as a condition subsequent but will not, in my judgment, necessarily do so in the case of a condition precedent; for if the claimant be able to satisfy any or at least any reasonable test, is he dientitled to the benefit of the gift? The essential difference which I think exists and to which I have alluded was well illustrated by Mr. Hunter-Brown in the course of argument. A condition subsequent divesting an estate vested in A. if A. at some relevant date should not be a tall man would, as it seems to me, be held void for uncertainty. For tallness being a matter of degree, by what standard is it, for the supposed purposes, to be judged? If "tallness" is achieved by being above the "average" height then what average is contemplated? The average of A's town or neighbourhood, the average of Englishmen, the average of all mankind? And would a man in height above the average, say, of all Englishmen by however small a fraction of an inch, be called "tall" in any ordinary sense? But questions of this kind which might be fatal to the supposed formula as a condition subsequent might have no application in the case of a condition precedent or qualification; for a claimant who was 6'6" tall might fairly say that he satisfied the Testator's...
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