Re Rowland, decd
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE HARMAN |
| Judgment Date | 23 May 1962 |
| Judgment citation (vLex) | [1962] EWCA Civ J0523-1 |
| Date | 23 May 1962 |
| Court | Court of Appeal |
[1962] EWCA Civ J0523-1
The Master of The Rolls (Lord Denning)
Lord Justice Harman and
Lord Justice Russell
In The Supreme Court of Judicature
Court of Appeal
From Mr. Justice Buckley
MR K. B. SUENSON-TAYLOR (instructed by Messrs Woodroffes) appeared as Counsel for the appellants, second and third defendants.
MR J. L. KNOX (instructed by Messrs Collyer-Bristow & Co.) appeared as Counsel for the respondent, first defendant.
MR K. RUBIN (instructed by Messrs Collyer-Bristow & Co.) appeared as Counsel for the respondent, plaintiff.
THE KASTER OF THE ROLLS: We ape here concerned with the will of Trevor Ingman Rowland, made on 2nd August, 1956. He was a young doctor then aged 29 and his wife was 26. She had been a nurse. They were both lost at sea in the South Pacific.
Before they left England their home was at Worcester Park in Surrey. On 12th June, 1956, the Colonial Office offered Dr. Rowland an appointment as a Medical Officer in the South Pacific Health Service. He accepted at once and passages were arranged for him and his wife to sail for Fiji in the s. s. "Dominion Monarch" on 18th August, 1956. The period of service was three years and he was liable to be posted anywhere within the territories of Fiji, the British Solomon Islands Protectorate, the Gilbert and Ellice Islands and the New Hebrides. If he looked up these places on the map, or made any enquiries, as it is reasonable to suppose he did, he would have seen that his service was to be in an archipelago, or rather in several archipelagoes of hundreds of islands, where the sea provides the main means of travel. They would have to do most of their travelling by sea in small vessels between the islands.
Before sailing for Fiji they both made their wills. Mrs Rowland made her will on 24th July, 1956. Dr. Rowland made his will on 2nd August, 1956. They do not appear to have had any legal advice. The wills were made on printed forms sold by a company called Barrister Forms Company, Ltd., which said that "The Barrister Will form is strictly protected by copyright". If the use of the word "Barrister" was intended as a recommendation to induce people to make their own wills, this case shows that it would be better ignored. Dr, Rowland had only some £3,000 or £3,000 to dispose of. He left it all to his wife. But then he went on to say: "In the event of the decease of the said Shirley Brownlle Rowland preceding or coinciding with my own decease I give and bequeath" all my estate to Eric Arthur Ingman Rowland (his brother) and Henry Rowland Brink (a baby, his sister's child). Mrs Rowland had only some £20 or £30 to dispose of. She left it all to her husband. And then shewent on to say: "In the event of the decease of the said Trevor Ingman Rowland preceding or coinciding with my own decease I give and bequeath" all my estate to Diana Sybil Russell (her brother's child).
On 18th August, 1956, the young couple sailed for Fiji, taking their wills with them. When they got to Fiji, they left their wills in a bank and went about their duties. On 9th July, 1958, Dr. and Mrs Rowland were passengers on board the R. C3, "Melanesian" She was a small vessel of 130 tons plying between the islands. At 5«30 p. m. on 9th July, 1958, she left Sulufou, which is a village on one of the British Solomon Islands. She had 64 persons on board, of whom seven were Europeans (including Dr. and Mrs Rowland) and 57 were natives of the islands. She was bound for Sikiana, an atoll about 120 miles away. She was expected to arrive there at 1.00 p. m. on the next day. At 9.00 a. m. she gave her position on the radio as 25 miles off her destination, Sikiana. Nothing has been heard of her since. Days went past without trace: but then one body was found and some wreckage, 300 pieces in all, in particular a life raft and a life boat and some life buoys.
In September 1958 a Commission of Inquiry was held. From the condition of the wreckage, they believed that both the life raft and the life boat had gone down with the ship: for they had been subjected to pressure by a steady crushing force such as would be felt at any considerable depth of water. The only body that was recovered had died, not from drowning but from some other cause, such as death through loss of blood from being eaten by fish. Death in these waters does not normally occur from cold or exposure, but from being eaten by fish. The conclusion of the Commission was that the ship sank suddenly. This is how they put it: "If the ship sank suddenly that would account for the fact that the life raft tanks had been subjected to pressure, that the life boat tanks had been subjected to pressure, that the cork In one of the lifebuoys had been compressed into a solid mass, and that only one body was picked up.It would also account for the fact that out of all the wreckage found so far only one piece has come from below decks. We consider that these facts could fit a sudden sinking of the ship due to her filling up with water, but we must reiterate that there is, in fact, no direct evidence to show what caused her to fill up with water" It appears, therefore, that there was no time to get out the lifeboats or the life raft or even the lifebuoys. The vessel went down suddenly with all hands, carrying everything and everyone down with it.
It was a long time before the wills of Dr. and Mrs Rowland were found. It was thought at first they had died intestate. So Dr. Rowland's mother obtained letters of administration on his estate. And on that footing it is plain that Dr. Rowland's estate would have gone to his relatives: and Mrs Rowland's estate to hers, see Section 1(4) of the Intestates Estates Act, 1952. But in August 1960 the bank in Fiji discovered the wills. So the grant to Dr. Rowland's mother was revoked. The two estates have now to be administered according to the wills.
The question now Is: what is to happen to the estate of Dr. Rowland? It has been sworn at £2,798. 2s.6d. Is it to go to his brother and his nephew? Or is it to go to his wife's niece? This all depends on whether her death "coincided with" his death. If it did, then under his will his property goes to his own relatives. If her death did not "coincide with" his, then under Section 184 of the Law of Property Act, 1925, she, being younger than her husband, is deemed to have survived him: and his property would go under his will to his wife, and thence under her will to her niece. So the critical question la: What does the word "coincide" mean in this will? And this seems to me to raise a point of some importance in the interpretation of wills.
One way of approach, which was much favoured in the 19th century, is to ask yourself simply: what is the ordinaryand grammatical meaning of the word "coincide" as used in the English language? On that approach, the answer, it is said, is plain: it means "coincident in point of time". And that means, so it is said, the same as "simultaneous" or "at the same point of time". So, instead of interpreting the word "coincide" you turn to interpreting the word "simultaneous". And at that point you come upon a difficulty because, strictly speaking, no two people ever die at exactly the same point of time. Or, at any rate, no one can ever prove that they do. Lord Simonds himself said in Hickman v. Peacey, 1945 Appeal Cases, at p. 345, that "proof of simultaneous death is impossible". If you give the word "coincide", therefore, its ordinary and grammatical meaning, it would lead you to an absurdity. For it would mean that the testator was providing in his will for an impossible event. In order to avoid that absurdity, you must do, it is said, the same as Mr Justice Cohen did in Re Pringle, 1946 Chancery at p. 131; you must interpret the word "coincide" so as to mean death in such circumstances that the ordinary man would infer that death was simultaneous. So the argument proceeds to ask: When would an ordinary man say death was simultaneous? And it answers! He would say so when two people are both blown to pieces at the same moment, such as by a bomb falling on the room in which they are sitting, or by an aircraft in which they are travelling exploding in mid-air. In short, where there is instantaneous death at the same instant of time. Thus a little latitude is allowed to the word "coincide". But no further. It covers deaths so close together that there is no measurable period of time between them. But, according to this argument, if the deaths are separated by any measurable interval, even by so much as a few seconds, they do not "coincide". For instance, Mr Knox even said that the deaths in Wing v. Angrave (1860) 8 House of Lords Cases, p. 183, did not coincide. In that case, if I may remind you, a husband and his wife and two boys were standing together on a sinking ship. They were clasped together, the boys had hold of the mother and the fatherhad his arms round whom all. The sea came and swept them all off. all at once and they disappeared under the waves. Seeing that Mr Knox said the deaths of those four were not simultaneous, I asked him whether deaths are simultaneous when an airoraft crashes on a mountainside and all its occupants are killed. He said they were not, because one might have died a little while after the others. To be simultaneous there would have to be proof that they died instantaneously at the same instant, and such proof would rarely be available. I must confess that, if ever there were an absurdity, I should have thought we have one here. It Is said that when an aircraft explodes in mid-air, the deaths of the occupants coincide; but when It crashes into a mountainside they do not; The supporters of this argument invoke as their authority "the ordinary man". He would, I suggest,...
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