Re Hayward, decd. Kerrod v Hayward
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE JENKINS,LORD JUSTICE SELLERS,MR JUSTICE VAISEY |
| Judgment Date | 23 May 1957 |
| Judgment citation (vLex) | [1957] EWCA Civ J0523-4 |
| Date | 23 May 1957 |
| Court | Court of Appeal |
[1957] EWCA Civ J0523-4
In The Supreme Court of Judicature
Court of Appeal
Lord Justice Jenkins
Lord Justice Sellers And
Mr Justice Vaisey,
Re HAYWARD, deceased
MISS J. GRAHAM HALL (instructed by Mr Mark Lemon) appeared as Counsel for the Appellant.
MR B. F. H. WHITRHEAD (instructed by Messrs. H.W. & S. Patey) appeared as Counsel for the Respondent.
: This is an appeal from an Order made by Mr Justice Up john on the 17th October, 1956, on the further consideration of an action for the administration of the estate of an intestate, Frank Charles Hayward, who may be conveniently referred to as the father. The father died on the 11th December 1949, and the intestacy was due to the circumstance that the only testamountary disposition which he made was in favour of his wife who predeceased him, having died in January 1944. The father left him aurviving two sons, Frank Cyril Hayward, the elder son, and Reginald Charles Hayward, the younger sons. The younger sons obtained a grant of administration to the father's estate dated 22nd November 1951. The elder son, Frank Cyril Hayward, had applied for a grant but the younger son placed a careat on the file, and the elder son died on the 11th August 1951. The Plaintiffs in the present proceedings are the executors of the elder son, and the Defendant (now Appellant) is the younger son.
On the 31st October 1946 the father nominated certain National Savings Certificates of the amount of £315, 13s. 6d., standing in his name to the elder son. On the 21st November 1946 the intestate nominated £191. 17s. 11d., the balance in his name in the Post Office Savings Bank, also in favour of his elder son.
The point at issue in this appeal, which the learned Judge decided in favour of the Plaintiff Eecutive, is whether under the provisions of Section 47, sub-section 1, sub-paragraph (iii) of the Administration of Estates Act 1925 the value of the National Savings Certification and Post Office Savings Bank balance ought to be brought into account against the elder son in the distribution of the estate on intestocy, the distributionj apart from that question being a simple distribution equally between the two sons. The disposition by way of nomination carried out by the testator with respect to the Savings Certificates and the Post Office Savings Bank abalance were special forms of disposition authorised in respect of such certificates and such balances by certain Statutory Rules and Orders to which we were referred. Put very abortly, the effect of a nomination is that it operates as a disposition in favour of the nominee taking effect on the death of the nominator and revocable by the nominator at any time in his lifetime. Such a distribution, therefore, partakes to some extent of the nature of a revocable settlement where the settlor, represented by the father in this case, makes a provision for a child to take effect on the settlor's death and in the meantime revocable by the settlor.
The not estate of the father, apart from these amounts of Savings Certificates and Post Office Bank balance, amounted to £1,77 6s. 1d. At the period of the nomination the elder son was aged 43; he was married but had no child and he was employed as a civilian clerk in the War Office.
These, I think, are the whole of the facts in the possession of the Court, and for the purpose of reaching any decision on the point at issue, they are meagre indeed. We have the bare fact of these two nominating; we have the fact that they amounted in all to some £500, and we have the fact that the not estate exclusive of the nominated assets, amounted to only £1,779 8s. 1d. which shows that the amounts nominated, though not in themselves to be classed as very large sums as money goes nowadays, were nevertheless no inconsiderable proportion of the father's estate. if one treats the estate for purposes of calculation as including the amounts in question, the proportion would be between onequarter and one-fifth or something of that order I think.
These being the facts, are the certificates, and teh bank balance to be brought into account under Section 47, sub-section 1, sub-paragraph (iii) of the Administration of Estates Act 1925? That provision reads: "Where the property held on the statutory trusts for issue is divisible into shares, then any money or property which, by way of advancement or on the marriage of a child of the i ntestate, has been Paid to such child by the intestate or settled by the intestate for the benefit of such child (including any life or less interest and including property convenented to be paid or settled) shall, subject to any contrary intention expressed or appearing from the circumstances of the case, be taken as being so paid or settled in or towards satisfaction of the share of such child or the share which such child would have taken if living at the death of the intestate, and shall be brought into account, at a valuation (the value to be reckoned as at the death of the intestate), in accordance with the requirements of the personal representatives".
It is upon the true construction of that provision that the present case must turn. It is a provision with a long history behind it in that it takes the place of the provisions for accounting for advancements by portion contained in the Statute of Distribution 1670. By that Act (Section 3) the whole surplusage of the estate of an i ntestate was to be divided in manner and form following: Then by sub-section 2:- "one third part of the said surplusage to the wife of the intestate, and all the residue by equal portions, to and amongst the children of such persons dying intestate, and such persons as legally represent such children, in case any of the said children be then dead, other than such child or children (not being heir at law) who shall have any estate by the settlement of the intestate, or shall be advanced by the intestate in his lifetime, by portion or portions equal to the share which shall by such distribution be allotted to the other children to whom such distribution is to be made". Then by sub-section (3): "and in case any child, other than the heir at law, who shall have any estate by settlement from the said intestate, or shall be advanced by the said intestate in his lifetime by portion not equal to the share which will be due to the other children by such distribution as aforesaid; then so much of the surplusage of the estate of such intestate, to be distributed to such child or children as shall have any land by settlement from the intestate, or were advanced in the lifetime of the intestate, as shall make the estate of all the said children to be equal as near as can be estimated."
It will be seen that these provisions treat the interests taken by the children on an intestacy as portions, and the children are required to bring into account any sums representing advances by portion made to them respectively. It will be seen that the present provision, the provision in Section 47 (1) (iii) of the Administration of Estates Act 1925, radically departs from the language of the Statute of Distribution containing as it does no reference at all to portions save in so far as a reference to portions is to be imported by implication from the use of the word "advancement". To my mind Section 47 (1) (iii) of the Administration of Estates Act 1925 is, if any thing, narrower than the provisions of the Statute of Distribution, but decisions upon the old Act are, I think, generally speaking applicable to the new.
The earliest case to which we were referred was the case if Edwards v. Freeman, 2 Peers Willams, Page 436, and 24 English Reports, Page 803. At page 803 of the latter I find this passage, which is on pages 441 of Peere Williams: "The occasion of making the Statute; of Distribution was to put an end to the long contest which had been betwixt the temporal and supiritual courts, for when the spiritual courts ordered any distribution or bond to be given by the administrator for that purpose, the temporal courts sent a prohibition, being of opinion that the adminstrator had a right to all and that the spiritual court could not break into...
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Chan Oi Kwan v Chan Fu Wing
...of the subject matter being an ‘advancement’ absent any other evidence of intention: Hardy v Shaw (supra) at 88-89; cf. In re Hayward [1957] Ch 528. (3) In the context of the equitable presumption against double portions, the Court, in deciding whether a gift is a ‘portion’ of the estate, w......