Re Drake, decd
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE HARMAN,LORD JUSTICE RUSSELL,LORD JUSTICE PHILLIMORE |
| Judgment Date | 29 April 1970 |
| Neutral Citation | [1970] EWCA Civ J0429-5 |
| Judgment citation (vLex) | [1970] EWCA Civ J0429-11 |
| Court | Court of Appeal (Civil Division) |
| Date | 29 April 1970 |
| Docket Number | 1969 D. No. 139. |
[1970] EWCA Civ J0429-11
In The Supreme Court of Judicature
Court of Appeal
On Appeal from the Court of Chancery of the County Palatine of Lancaster (Manchester District)
Lord Justice Harman
Lord Justice Russell, and
Lord Justice Phillimore
In the Matter of the Trusts of the Will of Herbert Drake Deceased
MR. A.W. SIMPSON (instructed by Bell, Broderick & Grey, London, Agents for Russell & Creswick, Sheffield) appeared on behalf of the Second Defendant (Appellant).
MR. D.B. MULLARD (instructed by Bell, Broderick & Grey, London, Agents for Russell & Creswick, Sheffield) appeared on behalf of the Plaintiffs (Respondents).
MR. P.A. FERUS (instructed by Bell, Broderick & Grey, London, Agents for Russell & Creswick, Sheffield) appeared on behalf of the First Defendant (Respondent).
This is the second case to come recently before this Court on appeal from Vice Chancellor Burgess in which questions of difficulty arise under wills which contain an ultimate gift in favour of kin of the testator. In the case of Clanchy decd, recently decided, the critical words were "next of kin". In the present case the words to be construed are "male descendants" and the question is whether such descendants must take exclusively through the male line or whether they may claim through females.
The will was dated the 1st February, 1943 and the material clause is number 4, which is in these terms:- "4 I Bequeath my Two thousand Ordinary Shares of One Pound each in the Britannic Assurance Company Limited or any increased or decreased holding therein to my Trustees Upon Trust:-
(a) To pay the income form one half part therefrom to my said Wife Hannah Drake during her life so long as she shall remain my Widow.
(b) To pay the remaining one half part of the income therefrom to my said Son Arthur Drake for his own use and benefit.
(c) After the death or remarriage of my said Wife Hannah Drake and after the death of my said Son Arthur Drake
(d) To hold the said shares as to both capital and income Upon Trust to divide the same per capital and income Upon Trust to divide the same per capita between such of the male descendants of my father living at the death or remarriage of my said Wife as to one half part thereof and at the death of my said Son Arthur Drake as to the remaining half part thereof who shall attain or shall have attained the age of twenty one and if more than one in equal shares".
The Testator died on 5th February, 1943 and his will was proved in the following month. The shares which are thesubject matter of the gift are now worth about £200,000.
Hannah Drake, the Testator's widow, died in October, 1966 so that under the somewhat inartificially drawn clause (d) above recited one half of the shares then became distributable. Extensive inquiries have shown that at that date there were living ten legitimate male descendants of the Testator's father in the exclusively male line and at least 29 more legitimate male descendants who were sons of or issue of females. For the purpose of the present appeal the former class is represented by the first defendant Arnold Drake, the son of a brother of the Testator, and the larger class by the second defendant Ian Drake Green, who is a son of a granddaughter.
The learned Vice Chancellor decided in favour of the more restricted class. This he said conformed with the view which he would have taken unfettered by authority, but he did no decide in favour of his own view but on the footing that he ought to share the doubts expressed in a decision of Mr. Justice Pennycuick in re: du Cros' Settlement Trusts re ported in 1961 1 W.L.R. 1252. In that case too the words to be construed were "male descendants" and the learned Judge expressed the view, contrary to the view of the Vice Chancellor, that unfettered by authority he would have decided that "male descendants" meant all males who were in fact descendants from the propositus, that being as he thought the natural meaning of the words. This would be my own view also. The learned Judge however did not rely on his own opinion but on a context provided by the will itself which document contained also a gift to the "male issue" of the settler, this being a term of art indistinguishable from the words "issue male", and signifying descendants through the exclusively male line. The Judge held that there being these two expressions, that is to say "male issue" and "maledescendants" prima facie different classes were intended by the two and as the first was confined to the narrower class the second ought to be extended to the wider class. The Judge expressed the view that had there not been this context he should have doubted whether he could decide that the words "male descendants" included those taking through the female line and he to some extent discussed the authorities on the subject.
The learned Vice Chancellor found in the will before him no guiding context and he therefore shrank from doing what Mr. Justice Pennycuick had doubted he could do in the state of the authorities and dicided in favour of the narrower class.
Oddly enough there appears to be no English authority on the subject later than the year 1938 when the case of ( Bernal v. Bernal 3 My. & Cr. 559) was decided. By way of appendix to that case is reported the case of ( Oddie v. Woodford 3 My. & Cr. 584), decided 17 years earlier and preserved in a shorthand note, on which there is no doubt that the Lord Chancellor (Lord Cottenham) relied to a great extent in deciding Bernal. It is necessary therefore to begin with a consideration of Oddie v. Woodford. This was one of the facets of the Thellusson litigation and concerned the right to present certain livings. The Testator had been dead for some 25 years but the period of accumulation directed by the will and which had been declared valid by the House of Lords in the action, was still in being. The ultimate limitation was to the "eldest male lineal descendant" of a relative of the Testator and the plaintiff claimed the right to nominate although he was descended from the Testator in the female line. This the House of Lords rejected and the side-note reads as follows:- "The designation of 'eldest male lineal descendant' held to be inapplicable to a maleperson claiming in part through a female". Lord Eldon in a characteristic judgment, full of doubts and hesitations, inclined to the view that the right to nominate must be confined to persons claiming exclusively through males and the plaintiff appealed to the House of Lords. The report states the opinion give by the Judges in answer to the questions proposed to them by the House and this was against the plaintiff and in favour of the strict construction. I find this passage on page 628: The Judges, in answer to certain questions which had been proposed to them by the House, said as follows: "We are of opinion that, in the case put in the first question, the grandson of the testator's second son, being a male descendant through a male, would be entitled to nominate or present to the vacant living.
"We are of this opinion, because we think the words 'eldest male lineal descendant' of his three sons respectively, according to the true construction of the testator's will, designate male persons descended from such sons in the male line only. The other construction contended for is, that the testator meant to confer the power of nomination on the eldest male who was a descendant of his sons respectively, without regard to his being descended through males. If he had intended this, he would have pointed out in terms the eldest male descendant. That is the obvious and natural mode of expressing such intention. The words 'lineal' would not have been introduced. On that construction it is totally useless. It was introduced, as it appears to us, in order to intimate the testator's desire that the person to nominate should be a male descendant of a son in the male line. No sense or operation can, in phrase, be given to the word 'lineal', but by connecting it with 'male', and giving it the sense just stated", Then he refers to a context which, he says, strongly supportsthat view.
Now it is clear that the reasoning depended largely upon the presence of the word "lineal" and the Judges assumed, although of course they did not decide, that if this word had been absent the wider construction would, or at any rate might, have prevailed. The Judges also relied on the context just referred to where the same expression is used in another part of the will where it undoubtedly refers to persons claiming through the male line exclusively. The report does not contain any account of their Lordships' speeches and merely recites the order, which as appears from the headnote was a decision excluding male taking through the female line. In so deciding, the House accepted the Judges' advice.
In the case of Bernal, also reported in the same volume, at page 559, the words "male descendants" were held to mean descendants claiming through males only. This was a suit which had been going on for many years and concerned a will in Dutch of a Spanish jew held to be domiciled in England in favour of "male children". Those words had been held to mean "male descendants" and it was decided that this limited claims to those descendants from the male line only. There had been a great number of orders made in the case, the Testator having made his will as long ago as 1693 and died in 1696. Letters of administration were granted in England in 1722 and the earliest decree in the suit was in 1728. The case as reported is a decision of Lord Cottenham, Lord Chancellor, made on the 28th February, 1838. This order discharged earlier orders for the distribution of the income of the chargeable fund...
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Hongkong Bank Trustee (Singapore) Ltd v Tan Farrer and Others
...and so they do. Therefore, that should be its ordinary and natural meaning and this was so decided by the Court of Appeal in Re Drake [1971] Ch 179 where it was said that the expression was an ordinary description and not a term of art and that, unless the context required otherwise, it bor......
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