Re Caborne
| Jurisdiction | England & Wales |
| Year | 1943 |
| Date | 1943 |
| Court | Chancery Division |
Will - Bequest - Validity - Public policy - Gift to son absolutely - Modification of gift “if his present wife be alive and married to him” - Absolute gift to take effect “if his said wife shall die or his said marriage be otherwise terminated.”
A testatrix by her will provided (inter alia): “I give …. all the …. residue …. of my …. property … unto my son absolutely provided that if his present wife shall still be alive and married to him the absolute gift to him next hereinbefore contained shall be modified in such manner that he shall have an interest for his life only or for such part thereof as his present wife …. shall remain his wife in the articles set out in the schedule hereto but so that if at any time during the life of my said son his said wife shall die or his said marriage be otherwise terminated the absolute gift hereinbefore contained shall take effect as and from such event but if my said son shall die leaving his said wife alive I bequeath each article to the respective legatee whose name appears opposite and as to the remainder of my said residuary estate I give devise and bequeath (sic) on the death of my said son if he shall predecease his said wife being then still married to her unto my trustees upon trust” as therein mentioned:—
Held, that the provision was designed, or tended, to encourage an invasion of the sanctity of the marriage bond, and was, therefore, void as being against public policy.
ADJOURNED summons.
By her will, dated April 13, 1935, the testatrix, Mary Lilian Caborne, after making specific bequests of certain chattels provided (inter alia): “I give …. all the …. residue …. of my …. property …. unto my son absolutely provided that if his present wife shall still be alive and married to him the absolute gift to him next hereinbefore contained shall be modified in such manner that he shall have an interest for his life only or for such part thereof as his present wife, Gertrude Maria Julia Caborne shall remain his wife in the articles set out in the schedule hereto but so that if at any time during the life of my said son his said wife shall die or his said marriage be otherwise terminated the absolute gift hereinbefore contained shall take effect as and from such event but if my said son shall die leaving his said wife alive I bequeath each article to the respective legatee whose name appears opposite and as to the remainder of my said residuary estate I give devise and bequeath on the death of my said son if he shall predecease his said wife being then still married to her unto my trustees upon trust to apply the income arising therefrom towards the maintenance, education or advancement of my son's said wife's daughter, Anne Micheline Mary Caborne, for the period of one year after his decease and at the expiration of such year to sell call in and convert the same into money and to divide the proceeds of such sale calling in and conversion between the following institutions in the following shares ….” The testatrix then named a number of charities. In the first column of the schedule to the will were a number of specific articles, and, in the second, the names of the legatees. In September, 1935, Warren Roger Caborne, the son, separated from his wife. On September 19, 1937, the testatrix died. On April 3, 1941, the son died. By this summons, the plaintiffs, his personal representatives, who claimed that his estate was absolutely entitled to the residue of the testatrix, asked (inter alia) whether the proviso in her will was void.
Roxburgh K.C. and Lindner (Pascoe Hayward with them) for the plaintiffs. The proviso is a condition subsequent tending to invade the sanctity of the marriage bond and is, therefore, void as against public policy: Tennant v. BraieF1. Even a condition that spouses shall live apart is void, and, this case is clearly a fortiori, the only conceivable explanation of the condition being the deliberate desire of the testatrix to disturb the marital relationship between her son and his wife and to prevent her son from using her residue to support either his wife or his child. In In re FreedmanF2, the testator directed that, if and when his daughter should become a widow or be legally separated or divorced from her husband, his trustees should make payments to her during the widowhood, separation, or divorce, and Farwell J. held both the condition and the gift to be void as against public policy. In In re ThompsonF3, there was a provision entitling the testator's daughter to the whole of the income of the estate “if at any time after the testator's decease she should be the widow of her present husband or married to someone other than her present husband, or divorced from but not subsequently remarried to her present husband,” and Bennett J. held that the provision was not contrary to public policy, taking the view that the intention of the testator was a matter of evidence. That is, however, inconsistent with the view of the House of Lords in Fender v. St. John-MildmayF4. To treat the matter as one of evidence is wrong on the authorities: Mitchel v. ReynoldsF5. The proviso in the present case encourages the husband “to omit the doing of something that is a duty” within the meaning of those words as used in Mitchel v. ReynoldsF5, for the duty of a husband is to maintain the married life where it is possible to do so: Cartwright v. Cartwright per Knight Bruce L.J. and Turner L.J.F6. The vice of the present proviso is made worse by the facts that the date of the will...
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