Re Allsop (Deceased) ; Cardinal v Warr and Others
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE RUSSELL,LORD JUSTICE DAVIES |
| Judgment Date | 04 May 1967 |
| Judgment citation (vLex) | [1967] EWCA Civ J0504-2 |
| Court | Court of Appeal (Civil Division) |
| Date | 04 May 1967 |
[1967] EWCA Civ J0504-2
In The Supreme Court of Judicature
Court of Appeal
Civil Division
From: Mr. Justice Plowman
The Master of the Rolls
(Lord Denning)
Lord Justice Davies and
Lord Justice Russell
In the Matter of The Trusts of the Will of James Allsop Deceased
MR J. JOPLING (instructed by Messrs Kinch & Richardson, Agents for Messrs T. G. Baynea & Sons, Dartford) appeared as Counsel for -the Appellant, first defendant, William Thomas Warr.
MR J. H. L. LECKIE (instructed by Messrs Kinch & Richardson, Agents for Messrs T. G. Baynes & Sons, Dartford) appeared as Counsel for the Respondent, second defendant, Wilfred James Giblin.
MR EDWARD SEELEY (instructed by Messrs Badham Comins & Main, Agents for Meesrs Bailey & Goff, Dartford) appeared as Counsel for the Respondent, third defendant, Fanny Ida Knight.
MR J. H. G. SUNNUCKS (instructed by Messrs Rowley Ashworth & Co.) appeared as Counsel for the Respondent, plaintiff, lacy Ellen Cardinal.
Nearly seventy years ago, on the 17th May, 1898, an old man named James All sop made his will. He was then aged 80. He had a granddaughter Sarah, who had been married for five years to James Starr. This young couple were in their early twenties. They had at that time a daughter Fanny? aged four. No doubt they hoped to have more children.
The old man had property at stone in Kant. In his will he left this property to the young couple, Sarsh and James, for their lives, and afterwards to their children. Eighteen months later, on the 6th January, 1899, the old man died. The young couple, Sarah and James, continued living at Stone mad had six more children. They lived to a good old age. Eventually James died on the 4th January, 1958, and Sarah died on the 22nd March, 1959. Five of their children are still living. One of them is Fanny, who was four years old when the old man died. She is now 73. The others were born after his death. They are in their sixties and fifties.
The question is: What is to happen to the property at Stone? Does it all belong to Fanny or does it go to all the children to be divided equally between them? This depends on the meaning of the word "survive" in the old man's will. It was obviously drafted by a lawyer. The words were these: "I devise all my property at Stone in the County of Kant to James Warr and the said Sarah Ida Bowyer Warr during their joint lives and the life of the survivor of them and after the decease of such survivor I give the same unto and equally between such of the children of the said James Warr and Sarah Ida Bowyer Warr as shall survive me and attain the age of 21 years and the issue of such of them as shall die previously such issue taking nevertheless the share only which his, her or their parents would have taken if he or she had survived me and attained the age of 21 years and if more than one in equal shares as tenants in common".
The crucial words in the will are; "I give the sameunto and equally between such of the children of James and Sarah as shall survive me and attain the age of 21 years. It is said that the word "survive" has only one proper meaning. It means a person who is living at the death of the old man and continues living afterwards This is supported by the case of Elliot v. Jolcey 1935 Appeal Cases at page 218, where Lord Russell of Killowen said "The word 'survive' in my view according to Its ordinary meaning requires that the person who is to survive shall be living both at and after a particular point of time". Applying this meaning it is said that the only child who "survived" the old man was Fanny, because she was the only child who was living at his death. She was then four. The others were not then born. So they did not "survive him. The Judge has accepted this view.
Although that is the ordinary meaning of the word "survive" there are a number of authorities which show that that meaning is capable of being displaced if it leads to a capricious result which can never have been intended by the testator. In some contexts it may mean simply "live after". The principal authority is a case in this Court in 1864 Re Clark (1864) 3 De Gex, Jones & Smith page 111. William Clark made a gift by his will to "all and every the children of Maria Clark who shall survive me equally to be divided between thorn". Maria Clark at the time the man died was about 12 years old. She married nine years later and had seven children. Vice-chancellor Kindersley held that none of them took under the will of William Clark because none of them was living at his death. They did not "survive" him. The Vice-chancellor said that the disposition was capricious but that was no ground for giving the word "survive" a different meaning. That decision was overruled by this Court. Lord Justice Knight Bruce, with whom Lord Justice Turner concurred, said at page 115 "I am of opinion that we may without impropriety hold the words 'who shall survive mo' to mean 'who shall beliving after ma'". That case was followed by Mr Justice Eve in Re Sing 14 Weekly Note page 90. He said that the word "survive" was 'capable of either of the meaning 'outlive' or 'live after' and the meaning to be allocated in a particular case must be determined by the context in the surrounding circumstances which the Court was entitled to regard". In that case he held that "survive" meant "live after".
Those cases were considered by Mr Justice Roxburgn in Re Hodgson. 1952, 1 All England Reports page 769 and he in affect declined to follow them. A testator left property in trust "for such of the child or children of the said Captain Hodgson who shall survive me and shall attain twenty-one years". At the date of the testator's death Captain Hodgson was a bachelor. After the testator's death captain Hodgson married and had children. Mr Justice Roxburgn held that his children did not come within the bequest. They did not "survive" the testator because they were not living at the time of his death. He realised that this was contrary to the testator's intention. He said that the will "operates in a most capricious manner". He invited an appeal, saying that "in a matter of this sort it is the duty of a Judge of first instance to tread the conservative path, hoping perhaps, that a higher Court will be able to deal more radically with the situation". There was however, no appeal. The case I suppose, was settled.
Now that we have the same point before us I should like to say that in my opinion Re Hodgson was wrongly decided. I prefer to follow the decision of this Court in Re Clark. For this simple reason The object of the Court in construing a will is to discover the intention of the testator. I do not think his intention Is to be discovered by looking at the literal meaning of the words alone. That has led, times out of number, to the frustration of his intentions. You must look at the will in the light of the surrounding circumstances. Eschewing technical rules and literal interpretation, you must look to seessimply what the...
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