Re Strafford (Earl of) deceased
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE BUCKLEY,LORD JUSTICE LAWTON,LORD JUSTICE GOFF |
| Judgment Date | 20 July 1978 |
| Judgment citation (vLex) | [1978] EWCA Civ J0720-7 |
| Docket Number | 1976 S No. 2325 |
| Court | Court of Appeal (Civil Division) |
| Date | 20 July 1978 |
[1978] EWCA Civ J0720-7
In The Supreme Court of Judicature
Court of Appeal
(Civil Division)
On Appeal from the High Court of Justice
Chancery Division
Group B
(The Vice-Chancellor)
Lord Justice Buckley
Lord Justice Lawton and
Lord Justice Goff
In the Matter of the Estate of the Right Honourable Edmund Henry Sixth Earl of Strafford deceased, and
In the Matter of the Trusts of the Will and two Codicils of the Sixth Earl of Strafford deceased, and
In the Matter of the Trusts of an Arrangement varying the Trusts of the said Will and Codicils approved by an Order made in "In re: Strafford's Will Trusts, Byng v. Naylor 1967 S. 5600" and
In the Matter of "the Colebrooke Chattels"
MR. E.G. NUGEE Q.C. and MR. D. LOWE (instructed by Messrs. Boodle, Hatfield & do., Solicitors, London WIT 2BL) appeared on behalf of the first and second defendants (Appellants).
MR. P.M.F. HORSFIELD Q.C. (instructed by Messrs. Farrer & Co., Solicitors, London W.C.2) appeared on behalf of the Plaintiffs (Respondents).
MR. R. WALKER (instructed by Messrs. Charles Russell & Co., and Messrs. Frere Cholmeley & Co., Solicitors, London) appeared on behalf of the third, fourth, fifth and sixth defendants.
The seventh, eighth and ninth defendants were not represented by counsel.
The Sixth Earl of Strafford died on 24th December 1951t rather less than two months after his wife, who died on 2nd October 1931. The third and fourth defendants in these proceedings, Lady Elizabeth Byng and Lady Mary Naylor, are his two daughters. They are the legal personal representatives of their mother, the Countess, and under her will they are absolutely entitled to her estate in equal shares. The plaintiff, The Royal Bank of Scotland Ltd, is the sole executor and trustee of the will of the Earl. By that will, by clause 3, be devised his mansion house, Wroth am Park in the County of Middlesex, and his house in St. James's Square, upon trusts under which the Countess, if she had survived him, would have taken a life interest, with remainder upon trust to secure a jointure for each of his daughters, and subject thereto upon trusts under which Lady Elizabeth Byng took a first life interest, and subject thereto 'Lady Mary Naylor took a life interest, subject to which the first defendant, Mr. Julian Byng, who is the son of Lady Elizabeth, took a life interest; after which Mr. Christopher Naylor, who is a son of Lady Mary, took a life interest; after which Mr. Edmund Naylor, her other son, took a life interest; after which, in the events which have happened, the present Earl took a life interest - he is a collateral relation of the other parties, being a descendant, I think, of the Fifth Earl; after which his son, Viscount Enfield took a life interest - they are the seventh and eighth defendants; after which Lord Enfield's son, the ninth defendant, took an entailed estate.
By clause 5 of the will the testator bequeathed all his chattels, subject to certain exceptions which I need not refer to, upon trust that they should devolve with the settled land. Therewas a considerable number of works of art and other valuable chattels in and about the houses of the Earl and Countess, some of which were considered to belong to him and some to her, and after both the Earl and the Countess had died Lady Elizabeth and Lady Mary arrived at decisions as to which of these chattels belonged to the estate of their mother and which belonged to the estate of their father, and the allocations which they then made of these chattels to the two estates were acted upon, they taking under their mother's will those chattels which were allocated to her estate as their own absolute property.
Since that time it appears that evidence has been found which at any rate suggests that some of the chattels so allocated to the Countess's estate were in fact the property of the Earl; it is said that some of these chattels, notwithstanding that they came from sources connected with the Countess's family - that is to say, the Colebrooke family - had nevertheless been bought by the Earl, either from the late Lord Colebrooke or on the market, so that those chattels were in truth his property and not the property of the. Countess; and so a dispute has arisen as to a considerable number of articles of value as to whether they form part of one estate or part of the other. We are told that the value of the disputed chattels is upwards of £170,000 in the aggregate.
In 1968 an order was made under the Variation of Trusts Act, varying the trusts of the will of the Earl; under that scheme of arrangement all the property which passed under the will of the Earl has become the property of the second defendant, Wroth am Park Settled Estates, which is an incorporated company; but there is a doubt as to whether that scheme of arrangement extends to, and has any effect upon, the disputed chattels so far as they belonged to the estate of the Earl.
In these circumstances the plaintiff trustee took out an originating summons in March 1976, asking for directions as to whether it should institute proceedings against the third and fourth defendants and any other and what persons, to recover the disputed chattels. In those proceedings all the persons having interests under the original will trusts affecting the settled estate were made defendants, including the third and fourth defendants, Lady Elizabeth and Lady Mary. When that summons came before the learned judge the third and fourth defendants, although parties to the proceedings, were excluded from any contentious discussion of the matter and the Vice-Chancellor, before whom the matter came, indicated at that stage that he considered that a sufficient case had been shown to justify the bringing of proceedings against the third and fourth defendants.
At the time of that hearing the advisers of the third and fourth defendants had been permitted to see the uncontroversial evidence filed in support of the summons, but not the bulk of the evidence, which dealt with the position in relation to the dispute. Counsel for the two ladies, the third and fourth defendants, asked to be allowed to see that evidence on the ground that this was a family dispute and should be dealt with in that way; the trustee supported that application but the learned judge, having seen and studied the evidence, decided that he would not accede to that application and he then indicated that he thought that proceedings should be instituted, but he granted an adjournment to allow counsel for the third and fourth defendants to obtain instructions, particularly in relation to the question of whether those proceedings should be taken by way of originating summons or whether the matter should be litigated in an action commenced by writ with thefull panoply of pleadings.
The matter came back before the Vice-Chancellor on 7th and 14th November, when counsel for the third and fourth defendants, who was also appearing for the fifth and sixth defendants, indicated that his clients would not consent to the proceedings being by way of originating summons said urged that the proceedings should be by way of a full-scale action Commenced by writ. The Vice- Chancellor then varied his directions with regard to access to the evidence which had been filed on the summons, and directed that counsel for the third, fourth, fifth and sixth defendants should be allowed to see the controversial evidence in the case and he directed that the proceedings to be taken by the plaintiff against the third and fourth defendants should be by way of originating summons upon which an inquiry might be directed as to which of the disputed chattels constituted part; of the estate of the Earl. No appeal was taken from that decision of the Vice-Chancellor, and accordingly that is the way in which the matter would have proceeded; but that course of proceeding was overtaken by events, because on 27th February 1978 the solicitors for the third, fourth, fifth and sixth defendants wrote a letter to the plaintiff trustee putting forward proposed terms of compromise of the dispute relating to the ownership of the chattels; that letter is to be found at page 91 of our bundle of documents.
The nature of the proposal wee stated by the learned Vice- Chancellor in the course of his judgment on page 2 of the transcript as follows: "Broadly, the terms are, first, that the Bank should abandon the claim as regards those chattels which the third and fourth defendants have either sold or given away. Second, that subject to the third defendant retaining her life interest incertain items, and subject to enough of the other chattels being sold to pay the cost of these proceedings, the remaining chattels should be divided as to one-fifth to the third and fourth defendants absolutely, and as to the remaining four-fifths to the Bank to hold on the trusts of the testator's will, with the important qualification that neither the third nor fourth defendants (nor the fourth defendant's sons) would claim any interest under those trusts. There would thus in effect be a surrender by the third and fourth defendants of their respective life interests in the remaining four-fifths, with the consequent acceleration of the first defendant's life interest in them from third place to first".
The letter in question gave...
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