Re Billson's Settlement Trusts
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE BROWNE-WILKINSON,LORD JUSTICE WATKINS,LORD JUSTICE WALLER |
| Judgment Date | 01 December 1983 |
| Judgment citation (vLex) | [1983] EWCA Civ J1201-1 |
| Court | Court of Appeal (Civil Division) |
| Date | 01 December 1983 |
| Docket Number | 83/0463 |
[1983] EWCA Civ J1201-1
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY DIVISION (MR LEONARD HOFFMAN. Q.C)
Royal Courts of Justice,
Lord Justice Waller
Lord Justice Watkins
Lord Justice Browne-Wilkinson
83/0463
1982 B. 1787
Re: Trusts of Settlement Dated 5/12/34
MR A.L. PRICE, Q.C., and MR H. PICARDA (instructed by Messrs.Stanleys & Simpson North) appeared on behalf of the Appellants.
MR M. HERBERT (instructed by Messrs. Frere Cholmeley) appeared on behalf of the Respondents.
This appeal raises a question on the true construction of the Legitimacy Act, 1926, which came into force on 1st January 1927.
Under a Settlement dated 5th December 1934, Edgar Leicester Billson settled certain property on trusts which can he shortly summarised as follows:
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(1) On protective trusts for his son George for life;
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(2) George was given power to appoint one half of the income to his wife for life;
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(3) Subject thereto, by Clause 4, in trust for "the children or remoter issue" of George as he by deed or will should appoint and in default in trust for "the children or any child" of George who has attained the age of 21 years or being female attain that age or may marry;
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(4) The ultimate trust (in the events which have happened) was for the benefit of George's nephews and niece (the third, fourth and fifth Defendants).
The Plaintiff, Christopher Billson, was George's only son. He was born on 15th June 1936, his parents not being then married. They married on 14th July 1937. Under Section 1 of the Legitimacy Act, 1926, Christopher was legitimated from the date of the marriage.
There is no doubt that, apart from the provisions of the 1926 Act, Christopher could take no interest under the Settlement. Before the passing of the 1926 Act, an illegitimate child could not take any property interest as a "child" of his parent, and legitimation by subsequent marriage was not recognised. The question in this appeal is how the 1926 Act affects a disposition made in a Settlement executed after the Act came into operation conferring interests on a "child", the illegitimate child being legitimated by virtue of the 1926 Act after the date of the Settlement.
The relevant provisions of the 1926 Act are the following: "1(1) Subject to the provisions of this section, where the parents of an illegimate person marry or have married one another, whether before or after the commencement of this Act, the marriage shall, if the father of the illegitimate person was or is at the date of the marriage domiciled in England or Wales, render that person, if living, legitimate from the commencement of this Act, or from the date of the marriage, whichever last happens. (3) The legitimation of a person under this Act does not enable him or his spouse, children or remoter issue to take any interest in real or personal property save as is hereinafter in this Act expressly provided."
"3. (1) Subject to the provisions of this Act, a legitimated person and his spouse, children or more remote issue shall be entitled to take any interest—(a) in the estate of an intestate dying after the date of legitimation; (b) under any disposition coming into operation after the date of legitimation; (c) by descent under an entailed interest created after the date of legitimation; in like manner as if the legitimated person had been born legitimate".
"10. (2) Nothing in this Act shall affect the operation or construction of any disposition coming into operation before the commencement of this Act, or affect any rights under the intestacy of a person dying before the commencement of this Act."
"11. For the purposes of this Act, unless the context otherwise requires:….. The expression 'disposition' means an assurance of any interest in property by any instrument whether inter vivos or by will".
Mr Leonard Hoffman, Q.C, (sitting as a Deputy Judge of the Chancery Division) had no difficulty in holding that Christopher took no interest. He was only legitimated by the marriage of his parents after the date of the Settlement, which the Judge assumed (apparently without argument to the contrary) to be the date on which the relevant disposition came into operation for the purposes of Section 3(1)(b). Christopher appeals against that decision.
Mr Price (for Christopher) submits that on the true construction of Section 3 (1) of the 1926 Act, Christopher is entitled to the fund as a "child" of Geoffrey under a disposition which came into operation after the date of his legitimation. He submits that the relevant disposition is not, as the Judge assumed, the Settlement of 1934, but the interests conferred by Clause 4 of that Settlement on Geoffrey's children and issue. That disposition did not come into operation, he submits, until there was an object of thoss trusts in existence, i.e. in this case until the legitimation of Christopher by the marriage of his parents on 14th July 1937. Therefore the relevant disposition came into operation on his legitimation and the case falls within Section 3(l)(b).
In support of these contentions he submits that Section 10(2) of the Act shows that, in relation to any disposition coming into operation after commencement of the Act on 1st January 1927, the construction of the disposition must take into account the provisions and effect of the Act. I agree with this submission. But I am unable to take the next step urged by Mr Price that the intention of the Act (and therefore of documents construed by reference to it) is so far as possible to treat legitimated children as though they were legitimate. In my judgment such a wide intention is neither to be gathered from the words of the Act nor to be attributed to settlors or testators.
So far as the donors (whether testators or settlors) are concerned, the only general intention which it is possible to attribute to them is that their dispositions shall operate in accordnace with the provisions of the Act. So far as Parliament is concerned, the words of the Act make it clear that legitimated children are not to be treated for all purposes as though they were born legitimate. On the contrary, Section 1 (3) makes it clear that the legitimated child is not to take any interest in real or personal property save to the extent "expressly" provided in the Act. Then, so far as relevant, Section 3 (1) expressly declares the limited circumstances in which the legitimated child is to be entitled to take an interest in property.
I cannot extract from these provisions any general intention or rule of construction other than an intention, both of Parliament and of a donor, that a legitimated child should take an interest in the circumstances specified in Section 3 (1) of the Act. The only question is the true construction of Section 3 (1).
Mr Price's submissions raise two separate but interrelated questions:
(1) what was the relevant disposition, and (2) when did that disposition come into operation within the meaning of the Act?
What was the disposition?
In my judgment as a matter of first impression the "disposition" referred to in the Act is the instrument under which the relevant interests are created (i.e. the 1934 Settlement), not the individual limitation under which Christopher claims. The word "disposition" is defined by Section 11 as meaning "an assurance of an interest in property by any instrument whether inter vivos or by will". To my mind this definition makes it clear that the disposition is the provision...
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R (on the application of ZYN) v Walsall Metropolitan Borough Council
...See also In re Macmanaway [1951] AC 161, 177; and Motala v A-G [1992] 1 AC 281, 291. 58 A similar principle was endorsed in Re Billson's Settlement Trusts [1984] Ch 409, where the Court of Appeal thought it legitimate, if there was a doubt as to the true construction of the Legitimacy Act 1......
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Simmons et Al v Cartwright and Hill
...of an interest in property by any instrument whether inter vivos or by will [Cited by Browne-Wilkinson, L.J. (as he then was) in re Billson's Settlement Trusts [1984] Ch 409 at 415G].” 20 As Mr. Adamson submitted, section 16 and the First Schedule are primarily designed to deal with claims ......
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Simmons & Simmons v Cartwright & Hill
...(Oxford University Press: Oxford, 1933) page 112. 2 Cited by Browne-Wilkinson LJ (as he then was) in In re Billson's Settlement TrustsELR[1984] Ch. 409 at 415G. 3 Section 7(1), Limitations Act S.N.L. 1995 C.L-16.1. 4 The passage of time may warrant the $20,000 initially posted being reviewed. ...