Re Petrie; Lloyd's Bank v Royal National Institute for the Blind

: The difficult questions which have been argued in this case arise out of the will of the testatrix, Miss Margaret Meir Petris dated 18th May, 1650. There was a codicil to the will which Is of no materiality for present purposes. Miss Petris died on the 5th January, 1959, and the present proceedings more initiated on the 23rd February of last year. Miss Petris was a domiciled Englishwoman but the language of her will appears to contain echoes of her Scottish origin: though the general sense of her dispositions is not (subject to the substantial point of construction hereafter considered) at all in doubt. By the will Miss Petrie appointed her two brothers, John Meir Petrie and George Ford Petrie and Lloyds Dank Limited to be her trustees and executors. The will then continued as follows: "But these presents are granted in trust always for the ends, uses and purposes following, videlicet: in the first place for payment of all ray just and lawful debts, sickbed and funeral expenses and also the expenses of every kind connected with the execution of the trust hereby created: and In the second place I direct my trustees to pay and make over the whole residue of ray said estate to the said John Moir Petris and George Ford Petrie as their absolute property". … (but) "IF both the said legatees shall predecease THE without leaving lawful issue who shall survive me, I direct my trustees to realise and divide the residue of my said estate as follows: To the Royal Medical Benevolent Fund. … the sum of two hundred pounds: and to the following charitable institutions or societies the remainder of the said residue equally among them, as follows: (first) the Servers of the Blind League. … (second) The British Home and Hospital for Incurables. … (third) The family Welfare Association. … for the relief of distress among all sections of the community in the London area! (fourth) Any National appeal to the public which may exist in the United Kingdom at the tins when the residue of my estate is realised as aforesaid, for contributions for research into the substances, such as cortisons, that are essential to the treatment of rheumatoid arthritis, declaring that should no such national appeal for funds than exist this share is to bo made ever to the said Family Welfare Association and divided equally between the work of family welfare in London and other worthy charitable objects chosen by the Association at its discretion".

Miss Petrie's two brothers in fact both pre-deceased her without leaving any issue so that the final disposition cited is that which has come into operation, and the substantial question raised in the proceedings relates, as may well be imagined, to the final or "fourth" part of the disposition in favour of "any national appeal. … which may exist. … at the time when the residue of my estate is realised as aforesaid".

Before Mr Justice Pennycuick the point was taken by Mr Blanshard Stamp on behalf of the solicitor for the affairs of H.M. Treasury that this final disposition was altogether void since the beneficiary indicated, the "national appeal", might not have to be ascertained until a date after the expiration of twenty-one years from the testatrix's death. On that view it was Mr Stamp's submission that the gift over In favour of the Family Welfare Association was equally void as being dependent upon the happening of too remote an event; so that the fourth share in question would go to Miss Petrie's next of kin. This argument was accepted by the learned Judge.

Mr Stamp's argument depended upon the premise that the phrase "when the residue of ray estate is realised as aforesaid" must be taken to refer to a point of time when the last of the testatrix's estate was in fact converted under the trust for conversion previously contained in the will. Mr Stamp conceded that it was permissible to have regard to the facts in regard to Miss Petrie's estate when she died: and, according to an affidavit which was before us, it is clear that Miss Petrle's property (which amounted in value to over £ 40,000) consisted, in addition to cash find money on deposit with a Building Society, of investment being either Government securities for which there was a regular Stock Exchange quotation; while, on the other hand, her debts amounted to little more than £200, a sum in fact considerably less than the available cash standing to the credit of her estate at the date of the Judgment under appeal. It is also to be noted that there was not in Miss Potrie's will, as there was in the will considered by Lord Justice Danckwerts, when sitting at first instance, in the case of Re Jones, 1950. 2 All England Reports, p. 239 (to which I shall later refer), any power in the executors to postpone conversion. Mr stamp nevertheless contended that, even apart from caprice or doroliction or duty on the part of the executors, some calamity or wholly unpredictable event, such as the of a war or the loss or destruction of some material records, might hold up completion of the realization of the tostabrix's estate for an indefinite period: and that upon well established authority, as illustrated, for , in the case of Re Wood, deceased, 1894, 3 Chancery, p. 265, and re Bowick, 1911, 1 Chancery, p. 116, the Court cannot become involved in any estimate of the probabilities in consideration the application of the so-called rule against perpetuities. Thus, in the latter of the two cases cited, Mr Justice Eve observed at page 119 of the report; "I am not at liberty to about probabilities. … And unless I am satisfied that the mortages must be paid off within the prescribed period I do not see how I can hold the claim to be good".

As Mr Justice Pennycuick thought, the view put forward by Mr stamp as to the application of the rule should be accepted, then in my Judgment the consequences already indicated would follow. Thus, I am unable to accept Mr Hames' connection that the result would or could be affected on the ground that in this case there was a general charitable intention which would make effective the gift over in favour of the Family Welfare Association. At the same time I confess that I share the distance which the learned Judge expressed for having to apply the rule against perpetuities to a case such as the present, particularly having regard to the facts already indicated relating to Miss Petrie's estate.

As I have, however, already observed, the problem of the application, eye or no, of the rule against perpetuities proceeded on the view that the words "when the residue of my estate is realized as aforesaid" must be taken to refer to the point of time when the last of the testatrix's assets was in face turned into cash. Before this court arguments were put before us by Mr Thomas and Mr Bonner for the view that the words quoted ought not to be so constructed but should rather be interpreted us referring either to the end of the so-called executor's year, or, alternatively, to the date when the administration of the estate was completed in the sense that, all debts, etc., having been discharged, the residue was ascertained and available for discribution: in support of these arguments certain cases were cited which were not in fact before Mr Justice Pennycuick.

It is not in doubt that, in considering the application of the rule against perpetuities, the first duty of the Court...