Re Neeld, decd
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE DIPLOCK |
| Judgment Date | 08 March 1962 |
| Judgment citation (vLex) | [1962] EWCA Civ J0308-1 |
| Date | 08 March 1962 |
| Court | Court of Appeal |
[1962] EWCA Civ J0308-1
In The Supreme Court of Judicature
Court of Appeal
From Mr Justice Cross
The Master of Rolls (Lord Evershed)
Lord Justice Upjohn and
Lord Justice Diplock
MR H. E. FRANCIS, Q. C. and MR JOHN BRADBURN (instructed by Messrs Nawby Barrie & Letts, Agents for Messrs Bell, Pope & Bridgwater, Southatt pton) appeared as Counsel for the Appellants in the first appeal, the first and second defendants.
HR R. W. GOFF, Q. C. and HR JOHN KNOX (instructed by Messrs Arthur Taylo & Co., Agents for Messrs Titley, Long & Co., Bath) appeared as Counsel for the Appellants in the second appeal, the third defendant.
MR R. S. LAZARUS, Q. C. and MR T. A. S. BURGESS (instructed by Messrs Arthur Taylor & Co., Agents for Messrs Titley, Long & Co, Bath) appeared as Counsel for the Respondents, the fourth, fifth, sixth and seventh defendants.
MR NIGEL WARREN, Q. C. and MR BRYAN CLAUSON (instructed by Messrs Church, Adams & Tatham, Agents for Messrs Carpenter & Carpenter, Bath) appeared as Counsel for the Respondent, Plaintiff.
THE MASTER Of THS ROLLS: The first two questions presented to us in these appeals are the related questions arising under paragraphs 1(a) and 2(a) of the originating summons. The former question relates to the validity and effect of the name and anas clause introduced from the will of Joseph Neeld, deceased, dated as long ago as 1855 and applied to the beneficiaries of the testators residuary real estate according to clause 14 of the will. The second question relates similarly to the validity and effect of the name and arms clause contained in clause 17 of the testator's will and applicable to the specific devisees under the testator's will-Upon the first question Mr Francis and Mr 3radburm appealing for the first two defendants, have contended that the name and arms clause in the will of Joseph Neeld should be declared void for uncertainty or as bei-ig contrary to public policy. Similarly upon the second question Mr Goff and Mr ICnox have contended for the testator's grandson, the third defendant, that the name and arms clause contained in the testator's will should be declared void for uncertainty. The terms of the devise being in this case limited to male succession (save for the first taker to whom the clause was expressed to be inapplicable) excluded the challenge of public policy. As will later appean there are, in the special language of both the name and arms clauses with which we are concerned, particular arguments upon which Mr Francis and Mr Goff also respectively relied: and to these special provisions I shall return later in the Judgment. But both Mr Francis and Mr Goff put in the forefront of their arguments the submission that name and arms clauses in the forms in which they have been hallowed in the books of precedent for a very long period of time should now and in the light of certain decisions of Judges in the Chancery Division, beginning with the year 1945, be regarded as anachronistic and void on both (or one) of the grounds above indicated. It will be convenient, therefore, that I should refer at once to these decisions. The first was that of In re Frybefore Mr Justice Vaisey, reported in 1945 Chancery, p. 348. There can be no doubt that there were special features in that case which led to the Judge's conclusion adverse to the validity of the clause - in particular, though the obligation was imposed in terms as a "condition" to the talcing of the gift that the person so talcing should take and continue to bear the testator's surname, there was in fact no subsequent provision providing for divesting in the event of failure to comply with the "condition". In the circumstances Mr Justice Vaisey held that the condition was void as being, inter alia, repugnant to the antecedent absolute gift and infringing the rule against perpetuities. But the learned Judge also took the view - the plaintiff in the case being in fact a female - that it was contra bonos mores to require a woman to take a name which would be different from that of her husband.
The next case came before the same learned Judge six years later. It was that of In re Lewis' Will Trust, briefly reported in 1951 Weekly Notes, p. 591. There the name and arms clause appears to have been far more closely in accordance with the established precedents, but again the plaintiff was an unmarried woman and accordingly the learned Judge followed his earlier decision in Re Fry — though he said that he did so "not without hesitation1' - in holding that the clause was void as against public policy. The learned Judge did, however, go on to say that the divesting provision expressed to take effect if the beneficiary should afterwards "disuse" the surname was void for uncertainty. Mr Justice Vaisey thought that" the word "discontinue" might be too uncertain for effectiveness though he expressed no final view thereon; but he did hold that the word "disuse" should be regarded as referable not to some identifiable act but to a continuous process, the beginning of which might be oxtremely difficult to identify, and he quoted as supporting that view the exprossion of Swift "How I reflected — that I had disused family prayers for about five years". In the followingyear there came before the same learned Judge the case of In re Bouvorlo reported in 1952 Chancery, p. 400. Again the operative word in the divesting provision was "disuse" and Mr Justice Vaisey followed his decision of the previous year in holding the clause too vaguo and uncortain for validity. The report of the case in 1952 Chancery is immediately followod by. that of Re Woods will Trusts before Mr Justice Wynn Parry, In the latter case the testator had used the formula:, "discontinue te bear and use such surname" instead of the word "diauso", but Mr Justice Wynn Parry felt that there was no valid distinction between the two formulas and therefore followod Mr Justice Vaisoy in declaring the clause also void. Later in the same year there came before Mr Justice Danckworts, (as he then was) the case of In re Kersey, briefly reported in 1952 Weekly Notes, p. 541. The name and arms clause in that case followed closely the clauses which are found in the established books of procodont, but Mr Justice Danckworts followed the previous decisions in holding the clause void for uncertainty and addod also that, in his view, the attempt to apply obligations of that kind upon women (as was the plaintiff) was in fact "a fatuity out of date and inconsistent with the spirit of the times". The learned Judge, therefore, used considerably stronger language than the adjective "silly" which had fallen from Lord Mansfield in regard to the same subject matter in 1766.
Notwithstanding the decisions to which I have alludod Mr Justice Cross in the present case uphold the validity of both the clauses with which we are concerned and did not accept the view that such clauses were either uncertain for the reasons which had appealed to Mr Justice Vaisoy or contrary to public policy. Finally, Mr Justice Wilborforce in the case of Howard's will Trust reported in 1961, 1 Chancery, p. 507, preferred the view of Mr Justice Cross and uphold the validity of a name and arms clause substantially in what I will call the procodont form, subject only to this, that he felt compelled by the authority of the previousdecisions to hold the clause void (though in this respect soverable in so far as it applied to married women.
In my recital of the cases which, in the language of Mr Justice Wilborf orcop showed a "wind of change of increasing force" against name and arras clauses from 1945 onwards, I have not reforred to the case of Re Murray docoasod which came before this Court in 1955 (see 1955 Chancery, p. 69). In that case my brother Upjohn, sitting as a Judge of first instance, had pronounced in favour of the validity of a name and arms clause but this Court reversed the learned Judge's docision. It is clear, however, that in so doing this Court did not express any view upon the general question of the validity of name and arms clausos appropriately worded but basod its conclusion upon certain special provisions in the clause there before the Court which were thought too uncertain to permit of the validity of the clause. As I stated in my Judgment (see page 75 of the report): "I have been able to reach my decision upon the special (and they are very special) terms of the instrument which we have to consider", and a little later: "I wish, however, to wake 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 upon the validity of the recent decisions which I have mentioned", being the decisions to which I have above adverted. I shall return to some furthor reference to In re Murray when I come to deal with the special problems ralsod by the particular languago of the two clauses in the case before us.
Basing themselves upon these last mentioned cases, it has been Mr Francis's and Mr Goff's first point that any clause following the old established precedents and requiring a bonoficlary to "take and use" a particular name and divesting the gift should the beneficiary thereafter either "discontinue" or "disuse" such name, should now be regarded as too uncertain in effect for validity. Second, Mr Francis contonded that the decisions above mentioned, and particularly that of Mr Justice Danckworts,in Re Kersey, should now be regarded as authoritative so that the Court should necessarily hold to be void as against public policy any clause roquirlng a woman, whether married or single, to take and thereafter use (or, in the case of a married woman, her husband to take and thereafter use) a particular surname Having heard the most careful and instructive arguments of Counsel on these general questions and having regard...
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