Re Priestley's Will Trusts ; Hambros Bank Executors and Trustee Company Ltd v Rabagliati
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE RUSSELL,LORD JUSTICE CAIRNS,LORD JUSTICE BUCKLEY |
| Judgment Date | 01 March 1971 |
| Judgment citation (vLex) | [1971] EWCA Civ J0301-3 |
| Date | 01 March 1971 |
| Court | Court of Appeal (Civil Division) |
[1971] EWCA Civ J0301-3
In The Supreme Court of Judicature
Court of Appeal
Revised
On Appeal from the Vice-Chancellor.
Lord Justice Russell
Lord Justice Buckley and
Lord Justice Cairns
In the Matter of the Trusts of (a) The Will dated the 20th October 1938 and the Codicil thereto dated the 25th April 1940 of Sir Joseph Child Priestley deceased and (b) the Will dated the 11th February 1942 and the Codicil thereto dated the 4th February 1945 of Dame Annette Maud Warner Priestley
MR G. RINK, Q. C. and MR J. B. MORCOMBE(instructed by Messrs Darley Cumberland & Co.) appeared on behalf of the Appellants (First Defendants)
MR S. W. TEMPLEMAN, Q. C. and MR J. WAITE(instructed by Messrs Collyer Bristow & Co.) appeared on behalf of the Respondents (Second, Third and Fourth Defendants).
MR C. H. HORNE(instructed by Messrs Norton, Rose, Botterell and Roche) appeared on behalf of the Respondent (Plaintiff).
This appeal involves (at least as I see it) a short point of construction of the will of Sir Joseph Priestley K. C. Upon the answer to that point depends, in my view, the exercise or non-exercise by the will of his widow of a general power of appointment given to her by Sir Joseph in respect of the greater part of his residuary estate, in which part she had a life interest. If the power was exercised the broad result is that their granddaughter, a spinster now past the age of childbearing, has a protected life interest in the whole and a general power of appointment by will: if it was not exercised she has the same protected life interest, but the remainder will be to three nephews or nieces of Sir Joseph.
The facts are set out in the report of the case below at 1970 3 Weekly Law Reports, page 1054.
The language of the widow's will, so far as now relevant, was as follows: "I give devise and bequeath all my real and personal estate (including any property over which I may have any general power of appointment exercisable by will) not hereby or by any codicil hereto otherwise specifically disposed of unto my trustees upon trust", for conversion, end so forth.
The power was conferred by Sir Joseph's will in the following way: "… and shall stand possessed of the residue of my wife's share… In trust for such person or persons for such purposes and in such manner in all respects as my wife shall by will or codicil expressly referring to this power as though it were a special power appoint".
The cases of Root. Lane and Waterhouse show that a requirement for the exercise of a general power of appointment that it should be expressly referred to by the appointer waslimited in its scope to the prevention of an implied exercise by force of section 27 of the Wills Act, and did not require a specific reference to the power. But in the present case we have the additional words "as though it were a special power". If the draughtsman or the testator meant anything by these words it seems to me that they must have been intended to introduce a requirement for the exercise of the power additional to that found in the cases to which I have referred. The phrase "as though it were a special power" appears to me to indicate that the express reference required is not merely the opposite of "implied", for there would not be a statutorily implied exercise of a special power, but means a specific reference, which is not found in the widow's will. Any other construction of the testator's will, I think admittedly, gives no operation to the reference to a special power: indeed, any other construction seems to me to equate the phrase to "as though it were a general power", which is absurd. It is, however, said that there are many examples of prolixity and tautology in Sir Joseph's will, so that it is reasonable to treat this as yet another. With the statement I agree, but with the submission I cannot I cannot regard it as permissible to treat as mere prolixity or tautology the introduction into a general power of appointment of a reference to such a very different conception as is a special power Nor can I accept that this phrase was introduced simply as a second method of excluding section 27 of the Wills Act - a belt as well as braces.
I incline to share with the Vice Chancellor and the editor of Jarman on Wills a doubt whether the donors of the power in Root and Lane meant only to exclude section 27. And Waterhouse in this court certainly does not require me to take yet a further step.
I would, on those short grounds, dismiss the appeal. LORD JUSTICE BUCKLEY: I have reached a contrary conclusion.
The testator here has imposed a stipulation as to the manner in which the appointment under the power created by his will, with which we are concerned, should be exercised. The power, therefore, must be exercised in the manner stipulated, and the question which we have to consider is whether the appointment contained in Lady Priestley's will, or the disposition contained in that will, accords with the stipulation relating to the power in Sir Joseph's will. If it does not, then the appointment is bad. On the other hand, if it does the appointment is good.
What, then, is the effect of the stipulation imposed by Sir Joseph? The terms of the power are: "In trust for such person or persons for such purposes and in such manner in ell respects as my wife" Lady Priestley "shell by will or codicil expressly referring to this power (as though it were a special power) appoint".
In order to consider the true effect of those words it is, I think, necessary, first of all, to pay attention to the difference between a general power and a special power as regards execution. Until the year 1837 when the Wills Act was enacted there was no difference between a special power and a general power in this respect. In Farwell on Powers, at page 147, the learned author states the rule that "every circumstance required by the instrument creating the power to accompany the execution of it must be strictly observed", and at page 201, inparagraph 25 of Chapter V of the work, he points out that the rule which is to be found on that page "applies,… to the execution of a general powers by deed, and by will before the Wills Act, and of limited powers, whether by deed or will". So that before the Wills Act it is clear that the same considerations applied to the exercise of a special power and a general power, end the rule stated on that page is in these terms: "The instrument must refer either to the power, or to the property subject to the power; or it must affect to deal with some property in general terms, not defining it, under such circumstances that it cannot have effect except upon the property comprised in the power". A number of authorities are cited, and then the learned author refers to Re Ackerley, where Mr. Justice Sergeant (as he then was) dealt with the subject Mr. Justice Sergeant there said that for himself be preferred to state the rule thus, namely "that in order to exercise a special power there must be a sufficient expression or indication of intention in the will or other instrument alleged to exercise it; and that either a reference to the power, or a reference to the property subject to the power, constitutes, in general, sufficient indication for the purpose". And the rule so stated as I say, prior to 1837 was applicable alike to special and general powers.
But since 1837 general powers have been subject to the provisions of section 27 of the Wills Act, 1837, which provided, stating it quite shortly, that a general gift shall include estates over which the testator has a general power of appointment. So that from the enactment of that Act it became possible to exercise a general testamentary power by a generaldisposition such as a residuary disposition which took effect by statutory implication as an exercise of the power.
The question in the case of a special power is whether there is sufficient expression or indication to be found in the document alleged to exercise it of an intention to exercise it. It need not be a specific reference to the particular power. This, in my judgment, is clear from the decision in this Court in Re Knight (1957 1 Chancery, 441) where what was relied upon as being the appointment was a gift of residue expressly "including any property over which I may have any power of disposition at the date of my death". If the exercise of a special power requires a particular reference to the power, a specific reference to the power, that case would have been decided very shortly on that point and not upon the ground upon which it was decided
An example of a case in which a general reference to powers of disposition was regarded as a sufficient reference to a special power is to be found in Re Teape's Trusts (reported in 16 Equity Reports). I do not overlook the fact that part of the reasoning in that case was doubted in Re Knight in the Court of Appeal, but I do not think that the doubts there cast upon it touch this particular aspect of the decision.
An expression of an intention to exercise all powers enabling the person who is alleged to have exercised the power to make the disposition in question is, in my judgment, a sufficient indication of an intention to exercise a special power which is in fact such a power - that is to say, a power answering the description to be found in the document relied upon as an exercise of it. The mere character of a power asa special power does not require that the instrument exercising it shall contain a particular or specific reference to that power. Nor does a stipulation that the instrument exercising a power shall expressly refer to the power necessitate a particular reference to that power. This, I...
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