Re Murray, decd. Martins Bank Ltd v Dill
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE JENKINS,LORD JUSTICE HODSON |
| Judgment Date | 30 July 1954 |
| Judgment citation (vLex) | [1954] EWCA Civ J0730-2 |
| Court | Court of Appeal |
| Date | 30 July 1954 |
[1954] EWCA Civ J0730-2
In the Supreme Court of Judicature
Court of Appeal
The Master of the Rolls
(Sir Raymond Evershed)
Lord Justice Jenkins and
Lord Justice Hodson
MR R. W. GOFF, Q.C. and MR G. D. JOHNSTON (instructed by Messrs Oswald Hickson, Collier ' Company) appeared as Counsel on behalf of the Appellant (First Defendant).
MR B. S. TATHAM (instructed by Messrs Crossman, Block ' Company) appeared as Counsel on behalf of the Respondent (Plaintiff).
MR MICHAEL ALBERY (instructed by Messrs Crossman, Block ' Company) appeared as Counsel on behalf of the Second Defendant.
The question which falls for determination in this case concerns the validity of certain provisions in the first Codicil of the testator's Will purporting to cause a divesting of a vested estate upon failure to comply with conditions as to the adoption of the testator's nameand arms. The relevant question is thus framed in the originating summons: "Whether upon the true construction of the said Will and codicils the provisions contained in the said codicil dated the 3rd June, 1952, in regard to the assumption of the surname of Murray and the application for proper authority to bear and use the family arms of the said John George Murray are wholly or to some and what extent valid and binding or void on the ground of uncertainty or otherwise".
The relevant dates and other facts which should be stated are these: The testator was John George Murray, and by his Will dated the 11th January, 1951, he strictly settled substantial property known as the Coles Park Estate. By his first Codicil dated the 3rd June, 1952, he substituted for clauses 8, 9 and 10 in the Will (which I may briefly refer to as name and arms clauses and which appear to have followed well-known precedents) name and arms clauses of a somewhat different character. The testator's second Codicil was dated the 4th October, 1952, and is immaterial. The testator died on the 11th August, 1953.
The Will and Codicil were proved on the 1st March, 1953, the Plaintiffs in the action being the executors and trustees. The effect of the strict settlement of the estate was that the first life interest there under was taken by the First Defendant, Richard Patrick Gordon Dill (hereafter referred to as Major Dill) who has been represented before us by Mr Goff and Mr Johnston. In the event of the failure or defeasance of his estate various other interests arise which are represented by the Second Defendant, Joseph Lumley Murray, for whom before us Mr Michael Albery appears.
Before I read the relevant clauses in the first Codicil, there are certain general observations which I should like to make. The first is this: I have read the Summons and the only question (other than a question to which we have notbeen referred, for nothing turned upon it for the purpose of this appeal) which was raised by it. Mr Albery at the end of his argument indicated the possibility of an argument on behalf of the Second Defendant based on what is known as dependant relative revocation: that is to say, he would desire to contend that if the clauses substituted by the first Codicil for clauses 8, 9 and 10 in the Will are held to be invalid, then the revocation of the clauses in the original Will would be ineffective and the original clauses would be, as it were, resurrected. That question was not raised in the Summons, and if it is open to Mr Albery nothing in this Judgment will affect it. Further, at the end of the Judgment in the Court below, according to the shorthand note taken at the time, certain questions were raised by Counsel for the Appellant (who was defeated) as to what he ought to do in order to comply with the terms of the relevant clauses. These questions were also net raised by the Summons and I for my part can see no reason why the learned Judge should have been required to answer them. The discussion as recorded, however, did show, as I read it, that the learned Judge had thought the case one of real difficulty and that he felt substantial doubts, by no means alleviated by the discussion, about the answer.
The second general observation is of a different character. In the course of the argument reference was made to a number of modern decisions on name and arms clauses. These included Re Parrott (1946 Chancery, 183); Re Lewis's Will Trusts (1951, 2 Times Law Reports, 1032); Re Bouverie (1952, 1 Chancery, 400), all decisions of Mr Justice Vaisey; the case of Re Wood (1952, 1 Chancery, 406), a decision of Mr Justice Wynn-Parry; and finally a case of Re Kersey, a decision of Mr Justice Danckwerts briefly reported in 1952 Weekly Notes at page 541. We were indeed told that these cases, or some of them, may have been the reason why the testator made his first Codicil substituting in it for his original name and armsclauses those to be found in the first Codicil. However that may be, the cases, especially the last one, raise some doubt whether even those name and arms clauses which follow substantially precedents of respectable antiquity would now be regarded as valid.
I confess for my part that I would have liked to have taken time to consider the present case before delivering my judgment, not only out of respect to Mr Justice Upjohn, but more particularly if it should be thought necessary or desirable for me to express any view on those modern cases. But the dates which I have already mentioned make it essential that, the Court should give its decision at once, for the time limit for compliance with the conditions in the Codicil expires on the 11th August next.
In the circumstances I have been able to reach my decision on the special (and they are very special) terms of the instrument we have to construe. Though I have reached a different conclusion from that which appealed to Mr Justice Upjohn and have, therefore, done so with no little hesitation, I am comforted by the fact that, as I read his Judgment and the transcript of the note of the discussion which followed it, it seems to me that the learned Judge felt real doubt, as I have already indicated, in his own mind upon this matter. I wish, however, to make it plain that, basing my decision as I do upon the special terms of this first Codicil, I express no opinion one way or the other on the validity of the recent decisions which I have briefly mentioned. I can understand the view that clauses of this character in the year 1954 are something of an anachronism. I can also understand the view which found some expression in the note of Mr Justice Danckwert's Judgment in Re Kersey that the emancipated status of a married woman today has a real bearing on the desirability from the point of view of public policy of clauses which might make her capacity to enjoy herself substantial proprietary interests dependent on thewillingness of her husband to change his name. But Parliament has not legislated upon the subject and many of these clauses are derived from precedents settled very many years ago by skilled and careful conveyances.
In the case of Bromley -v- Tryon in the House of Lords (reported in 1952 Appeal Cases) the Lord Chancellor, Lord Simonds, in the course of his Speech at page 275 uses these words: "If, indeed, on a consideration of the clause, I came to the clear conclusion that the words in question had no precise meaning, I should be bound to give effect to my opinion. A long course of conveyancing practice cannot, I think, even where titles may be founded on it, be given the same effect as a line of judicial authority. But at the lowest I should hesitate long before I concluded that words which had for nearly 100 years passed unchallenged by conveyances, men often profoundly learned in the law of real property and apt to dwell on nice distinctions of language, were after all incapable of sufficiently precise definition". The decision in Bromley -v- Tryon related to a different but analogous kind of clause, namely, an elaborate shifting clause; and in my judgment the language which I have quoted is by no means inapplicable to some at any rate of the types of name and arms clauses not uncommonly met with in practice.
Having made clear, as I hope, this reservation, I return to the particular case before us. Before I read the clause I desire to adopt once more the language of Lord Simonds in the same case of Bromley -v- Iryon which I have just cited. In approaching the construction of the clause in that case the Lord Chancellor said: "I come then to the point which was not argued before Mr Justice Harman, but was chiefly relied on in the Court of Appeal and in this House, viz.: that the clause is altogether void for uncertainty. It is a question which I must approach with this familiar principle in the foreground of my mind: that, where a vested estate is to be defeated by a condition on a contingency that is to happen afterwards,that condition must be such that the court can see from the beginning, precisely and distinctly,...
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