Re Dicey, deceased ; Julian v Dicey
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE BIRKETT,LORD JUSTICE ROMER |
| Judgment Date | 01 November 1956 |
| Judgment citation (vLex) | [1956] EWCA Civ J1101-1 |
| Docket Number | 1955 D. No. 1986 |
| Date | 01 November 1956 |
| Court | Court of Appeal |
[1956] EWCA Civ J1101-1
In The Supreme Court of Judicature
Court of Appeal
The Master of the Rolls
Lord Justice Birkett
Lord Justice Romer
1955 D. No. 1986
In the Matter of the Estate of Selina Dicey Deceased
Appeal of Defendant
MR S.K. (Instructed by Messrs Montlake & Co., 125, Wilton Road, S.W.I) appeared as Counsel on behalf of Mr Julian.
MR J.H. (instructed by Messrs Craigen Wilder & Sarrell, 61, High Road, Wood Green, N.22) appeared as Counsel on behalf of Mr Diosy.
I will ask my brother Romer to read the judgment of the Court.
This appeal has raised, in a somewhat form, the problem, not commonly encountered today, of the equitable rule of election under a Will. The Testatrix, Mrs Diocy, who died in 1954, by clause 4 of her Will made four years earlier, devised to her grandson, James Julian, the Respondent to this appeal, "my two freehold houses in Bercaford Road Walthamstow" and she gave a freehold houses in Berceford Road Walthamatow" and she gave a freehold house which she ownd and the residue of her estate, real and personal, to her son, the Appellant Charles Dicey.
The following facts were proved in evidence (and their admissibility is not open to challenge): (1) the Testatrix' husband, who died intestate in 1938, had been the owner in fee simple of two houses in Baresford Road, Walthamstow, namely, Nos. 68 and 70: (2) after Mr Dicey's death a family arrangement was come to (all written record of which was lost as a result of enemy action) whereby the rents and profits of the two houses should belong to Mrs Dicey, the Testatrix, during her life but, subject to that life interest the two houses (or their proceeds of sale) should belong as to one half to the Appellant and as to one quarter each to the Respondent and his brother, Charles Julian (who is not a beneficary under Mrs Dicey's Will and is not a party to these proceedings: (3) the Testatrix, Mrs Dioey, in fact during the rest of her life after her husband's death was in receipt of the rents and profits of Nos. 66 and 70, Bereaford Road: and (4) neither the Testatrix nor her late husband ever had any interest in another houses in Bereaford Road.
In these circumstances the question has arisen whether the Appellant, Charles Dicey, must elect either for or against the Will so that (in the former case) he must, as a term or condition of accepting the freehold house end bio mother's residue, renounce in the Respondent's favor his half interest in the proceeds of sale of the two houses and (in the latter case) he must, as a term or condition of retaining his half interest in the houses: make compensation to the Respondent for depriving him of that interest out of the Testatrix' free property which she had devised and bequesthed to him.
Mr Name's first contention was to the effect that the language ofclause 4 of the will was of so uncertain a character as not to give rise to election at all. It is quite true that the Testatrix has not specified by number the two houses in Barceford Road whereas the rest of her dispositions (other than of residue) specifically describe or identify their subject matter. Mr Hames has accordingly contended that the gift in clause 4 in favour of the Respondent is wholly ineffective for all purpose (including that of raising any obligation of election in the Appellant) either because it fails fairly to apply to Nos. 68 and 70, Berooford Read, at all or because, upon its true interpretation, it only purported to give to the Respondent such interest in those properties (if any) of which the Testatrix was competent to dispose.
Mr Hames referred us to one or two authorities in support of this part of his argument. We hope he will forgive us if we do act refer to then in this judgment but express briefly our entire concurrence with Mr Justice DanckWerts in rejecting the contention. We are willing to assume that, if the gift should be construed as Mr Barnes suggests, then the conclusion would be in accordance with his argument. But it is in our judgment dear, in light of the admissible evidence to which we have alluded, that by clause 4 of her Will Mrs Dicey purported and intended to devise in the Respondent's favour the freehold interest in Nos. 68 and 70, Barcaford Road, Welthaastow - an interest which, upon her death, belonged in equity as to one quarter to the devisee already, as to another quarter to his brother and as to the remaining half to the Appellant.
Mr Hames's second argument is, we think, of more substance and difficulty. It is to the effect that in such a case as the present the Appellant is relieved of any obligation to elects because ha cannot, if ha elects to take the property given to him by the Will, by any means in his control provide that the devise of Nos. 68 and 70, Barcaford Read, should take effect strictly according to the terms of clause 4 of the Will. By that claims the fee simple interest in the two houses is given to the Respondent. The Appellant's present interest in the houses is an absolute beneficial interest in one half of their proceeds of sale. The cost that he can achieve by a remuneration of his present interest in favour of his nephew is to secure for the Respondent an absolute beneficial interest in three -fourths of the proceeds of sale of the houses, an interest cot only loss in extent but different in quality from the gift Which the Will purported to confer on the Respondent. In other words, it is Mr Hames's contention that election only arises when the person on whom the obligation falls can, if he elects in favour of the Will, secure that the relevant provisions of the Till take effect precisely seconding to their terms.
We must confess fear our part that, if this contention is trail-founded, then the so – called rule of equity known as election appears to be bereft of much of its title to be described as equitable. For the obligation to elect could depend upon the chance of the existence of some interest in the property, which the Will purports to devise, in a third party (not himself a beneficiary under the Will and not therefore in any event called upon to elect) however small such interest might be. Further, the result in such a case as the present would be unaffected by the circumstance that in the event of election against the Will there would be no difficulty at all in the may of making adequate compensation to the disappointed devisee or legatee.
It appears, however, that no case has yet been before the Courts in which the precise point now raised has been determined. It becomes accordingly necessary to consider the true character of the rule. The case of Cooper v. Cooper in the House of Lords ( Volume 7, English and Irish Appeal Cases, page 53) concerned a testatrix upon whom had been conferred a limited power of disposition over an estate known as Pain's Hill. The testatrix having in her lifetime effectively appointed the estate equally in favour of her three sons, purported to appoint it by Will to her oldest son...
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