Re Edmondson's Will Trusts
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE RUSSELL |
| Judgment Date | 22 November 1971 |
| Judgment citation (vLex) | [1971] EWCA Civ J1122-1 |
| Court | Court of Appeal (Civil Division) |
| Date | 22 November 1971 |
[1971] EWCA Civ J1122-1
In The Supreme Court of Judicature
Court of Appeal
(From: Mr. Justice Goulding, Chancery Division)
Lord Justice Russell
Lord Justice Orr
Lord Justice Buckley
In the Matter of Elmondson's Will Trusts
MR. V. G. H. HALLETT, instructed "by Messrs. George & George, appeared for the Appellants (Plaintiffs).
MR. D. A. LOWE, instructed "by Messrs. George & George, appeared for the Respondents (Defendants).
This appeal concerns the applicability of the rule Known as the rule in Andrews v. Partington to the trusts of two Instruments. She two questions were joined In one originating summons because the trustee and beneficiaries and possible future beneficiaries are in each case the same: but otherwise the two questions are quite distinct. The decision of Mr. Justice Goulding In each case was that the rule applied. Since the decisions are reported (1971 1 Weekly Law Reports, page 1652) we need not set out the circumstances in great details.
The first question concerns the appointment by the first Lord Sandford by deed dated 25th July, 1948, of a fund In which he had a life interest and a special power of appointment among his issue, He appointed In equal shares to a class consisting of the children of his two named sons at 21 or if female earlier marriage. At the same time he released his life interest. At that date there was only one such child, of tenders years. Before any grandchild attained a vested interest the appointor died: accordingly, if the rule applies, the class of grandchildren to take closed when the first grandchild attained the age of 21, on 7th November, 1968, The appointor's second son has married for a second time and may well have further children. The trustees on behalf of any such future children argue that they will be included in the class, the rule not applying, The defendants and respondents, consisting of children of the two sons born before 7th November, 1968, contend the contrary.
We say at once that it appears to us that the question turns solely on the significance to be attached to the words "whenever born" in the phrase in clause 1 of the Seed of Appointment "upon trust for such of the children of my two sons, and A.) whenever born as being a son or sons shall attain the age of or daughters attain or darters shall attainthat age or marry as a single class and if more than one in equal shares", Neither side in our judgment could derive any support for its arguments from clauses 2, 4. or 5 of the appointment, Por the appellant trustees it was argued that the provision in clause 3 that "the powers of maintenance and advancement implied by the Trustee Act 1925…. shall apply to" the appointed funds, was inconsistent with the applicability of the Hole, or at least gave some indication in that regard. We do not accept that, That clause is consistent equally with the class dosing when the first member attained a vested interest (or, had it occurred later, the death of thelife tenant appointor), and with the class remaining open until the death of the survivor of the appointor's two sons. In this regard the case of ( Re Henderson's son's Trusts 1969 1 Weekly I Reports, page 651 (Court of Appeal)) was quite different there the language of the document itself in terms envisaged the possible existence of a vested presumptive share under the trusts declared, that is to say that a beneficiary having attained 21 was nevertheless liable to have the fraction of that share reduced by later additions to the class.
There are many reported oases upon the applicability of this Rule and the reasons for it. We do not think it necessary to recapitulate them. We believe that the question in this and other cases may be briefly thus stated? "Is it clear from the language of the instrument in the circumstances in which that language is used that the Rule is not applicable?"
In the present case without the...
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