Re Herwin. Herwin v Herwin
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS |
| Judgment Date | 17 July 1953 |
| Judgment citation (vLex) | [1953] EWCA Civ J0717-2 |
| Court | Court of Appeal |
| Date | 17 July 1953 |
[1953] EWCA Civ J0717-2
In The Supreme Court of Judicature
Court of Appeal
The Master of the Rolls
(Sir Raymond Evershed)
Lord Justice Birkett and
Lord Justice Rower.
In the Matter of The Estate of William Rufus Herwvin, Deceased.
MR J.A. ARESTRONG (instructed by Messrs Wilkinson Howlett & Moorhouse) appeared on behalf of the Appellants (First, second and third Defendants).
MR SPEARS (instructed by Messrs H.E. Thomas & Co.) appeared on behalf of the Respondents (Plaintiffs).
MR K.W. RUBIN (instructed by Messrs Glutton core & Lavington) appeared on behalf of the Respondents (Fourth, fifth, sixth and seventh Defendants).
We need not trouble you further, MR Armstrong.
The late Mr William Rufus Herwin, who died in September 1950, made a Will on the 7th March 1949, which was plainly a professionally drawn Will, in which he disposed of his residue as follows:- "The Bank" – that is, Lloyds Sank, Ltd., whom he had appointed Executor and Trustee – "shall stand possessed of" the trust fund "upon trust to pay out of the Income thereof an annuity of Two hundred and fifty pounds to my wife Annie Dorothea Herwin during her life and subject thereto upon trust (as to both capital and income thereof) for such of them ray children or child (if only one) living at my death who shall attain the age of twenty one years or being daughters or a daughter have attained or shall attain that age or previously marry and if more than one in equal shares as tenants in common."
I do not propose to read other parts of the Will, though Mr Armstrong did draw attention to an earlier clause which might have had a bearing upon the true construction of the phrase there used if it were not that we are now assisted by certain evidence as to the surrounding circumstances which renders it, I think, unnecessary to elaborate my references to the Will.
I must, however, add that by a Codicil dated 18th August 1950 the Testator bequeathed certain additional legacies, including (a) a legacy "to my wife Annie Dorothea Kerwin" of £100, and (b) "to my daughter Sheila the sum of Five hundred pounds upon her attaining twenty one years".
Now, Mrr Herwin, the testator, was twice married. The date of his birth seems a little uncertain. We havebefore us what is called an agreed statement as to dates, which gives the date of birth as being the 21st October 1873, but Hr Rubin has stated that that date is not in fact agreed, and it may not be accurate. However, on the 6th April 1896 he was married to his first wife, and it is clear that he must have been, then, at any rate an adult. The marriage between the Testator and his first wife appears to have been childless, and she, the first wife, died on the 8th June 1943.
The Testator married his second wife, the wife referred to in his Will, Annie Dorothea Herwin, a week after the death of his first wife, on the 15th June 1943; and that fact alone would indicate that the Testator and the present Mrs Herwin had been closely associated for some time before their marriage. Indeed, the Testator had had three children by the present Mrs Herwin, all born during the period of the subsistence of his first marriage.
Those three children are the Appellants in this Court, two sons and one daughter. The sons are William Sidney Rufus Herwin, who was born in September 1920, and therefore is now nearly 53, and Frank Stuart Herwin, born in November 1928, and therefore now about 24; the daughter is Sheila Patricia Mary Herwin, who has since been married, and who was the daughter Sheila referred to in the Codicil, born on the 8th August 1955, and therefore now a young woman not quite 20. No children were born to Mrs Herwin after the date of her marriage to the Testator in June 1943.
The question arose whether the disposition of the Testator's residue in favour of "my children or child" took effect in the absence of any legitimate children. In order to resolve that doubt the widow and Alec John Herwin, whohad together taken out letters of administration cum testamentoannexo, issued a Summons in the ordinary form in the Chancery Division, to which they joined as defendants the three children of the Testator who were born, as I say, to Mrs Herwin before her marriage, and also four other persons as being next of kin of the Testator. These latter would take (alone or with others) the residue if the gift to the children should be found ineffective.
The form of the Summons in the ordinary way would not perhaps be worthy of note, but having regard to the argument I will draw attention to the fact that by it the two Plaintiffs, as administrators, ask for "the determination of the questions and for the relief respectively following, that is to say:- 1. Whether upon the true construction of the said Will and Codicil thereto … the devise and bequest to his children … contained in clause 6 of his said Will operates as an effective devise or bequest to the above-named" (that is the first three Defendants, namely, the three illegitimate children) "or who otherwise is entitled to the said residuary estate under the said devise or bequest." Secondly, they ask for an order that one of the Defendants should represent the whole class of next of kin, who would take in default of the testamentary provision taking effect. Thirdly, they ask, if necessary, for administration of the real (if any) and personal estate of the said Testator and for such purpose all usual and necessary accounts inquiries and directions".
The evidence which supported that Summons consisted solely of an affidavit of Mr Alec John Herwin, the second Plaintiff and one of the administrators, in which, following the normal practice, he set out therelevant parts of the Will, and then proceeded to state as follows: "During the lifetime of the said Clara Clayton" – that is the Testator's first wife – "and during the subsistence of the marriage referred to in paragraph 6 hereof" – that is, the marriage with Clara Clayton – "there were born to the said Annie Dorothea Herwin by the Testator three children" – end then the three first Defendants are named; and that was the whole of the evidence which was before the Court as to the relationship of the children to the Testator, or of the relevant circumstances of the Testator from and after the date of his second marriage.
Now, at first sight it might appear that the reference in the Codicil to "my daughter Sheila" could be regarded as an indication that when the Testator spoke in his Will (which by Codicil he confirmed) of "my children" he was at least intending to include the children that had been born to his then wife, although they were not born in wedlock. Indeed, the impression which the Will conveys is clearly such as to raise the plainest possible suspicion in one's mind that the Testator, by his reference to "children" in clause 6 of the Will, meant at least to include those three children.
I have said that I do not propose to take tame, in the circumstances, by reading other parts of the Will; but perhaps I might add, by way of enforcing what I have said, that he appointed his then wife, Mrs Herwin, the guardian of those children or such of them as were infants; and Sheila was, and is still, an infant. So, indeed, the Will struck the mind of Mr Justice Vaisey, whose duty it was to construe it. But having regard to the long-established (though, it is sometimes thought,somewhat harsh) line of authorities, he felt, on the material before him (and the admissible surrounding circumstances were very limited, as I have already said) that he was unable to conclude as a matter of construction that the intention to comprehend illegitimate children, though likely, was certain. He therefore came, and as I say, he came reluctantly, to the conclusion that the residue of the estate was undisposed of.
The first three Defendants, the three children, thereupon appealed to this Court. But on the 1st May of this year, while the appeal was pending, they served a Notice of Nation upon the other Defendants and the Plaintiffs, asking, in accordance with the procedure normally adopted, that this Court should give leave to the Appellants upon the hearing of the appeal to call fresh evidence, that evidence being directed to establishing the very important matter of fact that at the time when the Testator made his will and his Codicil, and indeed at all times that are relevant, not only was the Testator in fact impotent and therefore incapable of having any further children at all, but also that he was well aware of that fact.
I shall come in a moment to refer briefly to the evidence in support of those assertions, but first of all I must deal as a matter of principle with the question whether it is right that in this Court the Plaintiffs should be allowed to tender that further evidence.
The rule which has been laid down – and it is one which rests on the firm basis that it is in the public interest that there should be an end of litigation – has many times been stated, and recently in this Court in the case of Braddock v. Tillotson's Newspapers. Ltd. which isreported in 1950 1 King's 3ench, at page 47. That was a somewhat unusual case, In that the application was not to call some new witness, but to have a witness for the other side recalled in order that he might be cross-examined. The appellants in the case that I am citing stated that they had no knowledge at the time of the trial, and had no reasonable means of finding out, that the particular witness was a person of light character, who might have been most effectively cross-examined as to credit had the facts been known to the appellants; and they further contended that the destruction of the credibility of this witness would, at the very least, have had a very strong Influence upon the...
To continue reading
Request your trial
-
Murphy v Minister for Defence
...Daems v. Van Landeghem (Unreported, Supreme Court, 15th November, 1954). Lynagh v. Mackin [1970] I.R. 180. Re Herwin; Herwin v. Herwin [1953] 1 Ch. 701; [1953] 3 W.L.R. 530; [1953] 2 All E.R. 782. Roe v. McGregor & Sons Ltd. [1968] 1 W.L.R. 925; [1968] 2 All E.R. 636; (1968) 112 S.J. 235. N......