Re Tuck's Settlement Trusts
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD RUSSELL,LORD JUSTICE EVELEIGH |
| Judgment Date | 01 November 1977 |
| Judgment citation (vLex) | [1977] EWCA Civ J1101-4 |
| Docket Number | 1970 T. No. 868 |
| Court | Court of Appeal (Civil Division) |
| Date | 01 November 1977 |
[1977] EWCA Civ J1101-4
In The Supreme Court of Judicature
Court of Appeal
On Appeal from the High Court of Justice
Chancery Division (Group B)
(Mr. Justice Whitford)
The Master of the Rolls (Lord Denning)
Lord Russell of Killowen (not present) and
Lord Justice Eveleigh
In the Matter of the Trusts of a Settlement dated the 23rd October 1912 and made between (1) Sir Adolph Tuck and (2) the Public Trustee
In the Matter of the Trusts of a Settlement dated the 12th December 1917 also made between (1) Sir Adolph Tuck and (2) the Public Trustee
In the Matter of the Estate of the said Sir Adolph Tuck deceased
In the Matter of the Trusts of the Will dated the 28th October 1912 and a Codocil thereto dated the 14th March 1922 of the said Sir Adolph Tuck deceased
MR. G.B.H. DILLON,.Q.C. and MR. T. DEWHURST (instructed by Messrs. Cameron Kemm Nordon, Solicitors) appeared on behalf of the Seventh Defendants (Appellants).
MR. G. GODFREY, Q.C. and MR. T.R.F. JENNINGS (instructed by Messrs. Nabarro Nathanson and Messrs. E.P. Rugg & Co., Solicitors) appeared on behalf of the First, Second, Third, Fourth and Ninth Defendants (Respondents).
MR. N. MICKLEM (instructed by Messrs. Trower Still ft Keeling, Solicitors) appeared on behalf of the Plaintiffs (respondents).
In 1910 Sir Adolph Tuck was made a baronet. He was rightly proud of this dignity. It was hereditary and on his death would pass to his successors in the male line of descent. Being a Jew himself, he was anxious to ensure that his successors to the title should all be of Jewish blood and Jewish faith. To do this he wanted his son to marry a wife who was Jewish; and his grandson likewise to marry a Jewish wife: and so on. So in 1912 he made a settlement by which he sought to ensure that each baronet in succession should marry an "approved wife". He put money in trust for "the Baronet for the time being if and when and so long as he shall be of the Jewish faith and be married to an approved wife". In the settlement, this was the definition of "an approved wife": "An approved wife ' means a wife of Jewish blood by one or both of her parents and who has been brought up in and has never departed from and at the date of her marriage continues to worship according to the Jewish faith". Then he added this significant clause: "as to which facts in case of dispute or doubt, the decision of the Chief Rabbi in London of either the Portuguese or Anglo-German Community (known respectively as the Sephardim and the Ashkenazim Communities) shall be conclusive".
Sir Adolph himself died on 3rd July, 1926, leaving two sons and three daughters. He was succeeded by his eldest son, Sir William Tuck. He married an approved wife and had a son and daughter. Sir William died on 12th May, 1954, and was succeeded by his son, Sir Bruce Tuck. Sir Bruce married first an approved wife and had two sons. But in 1964 there was a divorce. In 1963 he married a lady who was not an a proved wife.
Now question arises whether the settlement is valid or not. If it is valid, the fund will go to Sir Bruce Tuck and his twosons. If it is invalid, it will go to Sir Adolph's estate.
Mr. Dillon, Q.C. submitted that the definition of "approved wife" was so uncertain as to be void for uncertainty: that this uncertainty could not be cured by referring the matter to the Chief Rabbi: and that in consequence all the provisions in the settlement referring to an "approved wife" must be disregarded.
If this argument is correct, it means that the intentions of the settlor, Sir Adolph, have been completely defeated by the ingenuity of the lawyers: first, in discovering the uncertainty: and, secondly, in refusing to allow it to be cured by reference to the Chief Rabbi. I will deal with these two points in order.
THE ISSUE OF UNCERTAINTY
In making his submissions, Mr. Dillon, Q.C. used two phrases which have begun to fascinate Chancery lawyers. They are "conceptual uncertainty" and "evidential uncertainty". After a little probing, I began to understand a little, about them. "Conceptual uncertainty" arises where a testator or settlor makes a bequest or gift upon a condition in which he has not expressed himself clearly enough. He has used words which are too vague and indistinct for a court to apply. They are not sufficiently precise. So the court discards the condition as meaningless. It makes it of no effect, at any rate when it is a condition subsequent.
"Evidential uncertainty" arises where the testator or settlor, in making the condition, has expressed himself clearly enough. The words are sufficiently precise. But the court has difficulty in applying them in any given situation because of the uncertainty of the facts. It has to resort to extrinsic evidence to discover the facts, for instance to ascertain those whom the testator orsettlor intended to benefit and those whom ho did not. Evidential uncertainty never renders the condition meaningless. The Court never discards it on that account. It applies the condition as best it can on the evidence available.
This dichotomy between "conceptual" and 'evidential" uncertainty was adumbrated by Jenkins J. in Re Coxen (1949) Chancery at pages 76½. It is implicit in Lord Upjohn's speech in Re Gulbenkian (1970) Appeal Caches at page 525 and accepted by Lord Wilberforce in re Baden's. Deed Trusts (1971) Appeal Cases page 457. I must confess that I find the dichotomy moot unfortunate. It has led the courts to discordant decisions, I will give none relevant instances. On the one hand, a condition that a person shall "not be of Jewish parentage" has been held by the House of Lords to be void for conceptual uncertainty, at any rate in a condition subsequent, see Clayton v. Ramsden (1943) Appeal Cases 320: and a condition that a person shall be "of the Jewish race" was hold by Mr. Justice Dankwerts to be void for conceptual uncertainty, even in a condition precedent see Re Tarnoolsk (1958) 1 Weekly Law Reports 1157. The reason in each case being that the testator had given no information or clue as to what percentage or proportion of Jewish blood would satisfy the requirement. Is it to be 100 per cent, or will 75 per cent, or 50 per cent be sufficient? The words do not enable any definite answer to he given.
On this reasoning the condition in the Tuck settlement that an "approved wife" should be "of Jewish blood" would seen to be afflicted with conceptual uncertainty.
On the other hand, a condition that a person shall be "of the Jewish faith" has produced diverse views. Four out of five Law lords thought that it was void for conceptual uncertainty, at anyrate in a condition subsequent see Clayton v. Ramsden (1943) Appeal Cases at pages 392,334/5: but Lord Wright thought it was sufficiently clear and distinct to be able to be applied - see Clayton v. Ramsden (1943) Appeal Cases at page 331. Lord Cross of Chelsea afterwards agreed with him, see Blathwayt v. Baron Cowley (1976) Appeal Cases at page 429. So also did Mr. Justice Buckley, at any rate in a condition precedent - see Re Selby's Will Trusts (1966) 1 Weekly Law Reports 43. I should range myself with Lord Wright. His view is supported by reference to the cases or, other religions. Thus a condition that a person should be or not be "of the Roman Catholic faith" is not open to objection on the ground of uncertainty, either in a condition precedent or a condition subsequent - see Blathwayt v. Baron Cawley (1976) Appeal Cases 397 at pages 424/5 by Lord Wilberforce: nor a condition that he shall or shall not be an "adherent of the doctrine of the Church of England", at any rate in a condition precedent, see Re Allen (-.953) Chancery 821: nor a condition that he shall be "of the Lutheran religion", see Patton v. Toronto (1930) Appeal Cases 629. The reason being in each case that evidence can be given of the tenets of that religion or faith so as to see if the person is or is not an adherent of it.
On this reasoning the condition in the Tuck settlement about "Jewish faith" would sees to be valid and not avoided for conceptual uncertainty.
In addition to these troubles, there is another distinction to be found in the cases. It is; between condition precedent and condition subsequent. Conceptual uncertainty may avoid a condition subsequent, but not a condition precedent. I fail to ace the logic of this distinction. Treating the problem as one of construction of words, there in no sense in it. If the words are conceptually uncertain - so as to avoid a condition subsequent - they are justas conceptually uncertain in a condition precedent - and should avoid it also. But it is a distinction authorised by this court in re Allen (1953) Chancery 810, and acknowledged by Lord Wilberforce in Blathwayt v. Baron Cawley (1976) Appeal Cases at pages 424/5.
I deplore both these dichotomies, for a simple reason and a good reason. They serve in avery case to defeat the intention of the testator or settlor. The courts say: "We are not going to give effect to his intentions - because he has not expressed himself with sufficient distinctness or clearness". That assertion gives rise to argument without end as to whether his words were sufficiently clear and distinct: and whether the condition in which they occur was a condition precedent or a condition subsequent.
THE CHIEF RABBI's CLAUSE
How is any testator or settlor...
To continue reading
Request your trial
-
Alfred George Creasey and Another v June Sole and Others
...of those definitions. In the course of argument, I drew attention to what had been said about those cases by Lord Denning MR in In re Tuck's Settlement Trusts [1978] Ch 49 at 60-61. Mr Wallington invited me to hold that the authority of the earlier decisions was not affected by those remark......
-
Proprietors of Wakatu v ATTORNEY-GENERAL
...NZHC 1461 at [246]; and Proprietors of Wakatu v Attorney-General [2014] NZCA 628, [2015] 2 NZLR 298 at [161]. Re Tuck’s Settlement Trusts [1978] Ch 49 (CA) at Re Beckbessinger [1993] 2 NZLR 362 (HC) at 370. McPhail v Doulton [1971] AC 424 (HL). Proprietors of Wakatu Inc v The Attorney-Gener......
-
Mandla (Sewa Singh) v Dowell Lee
...can be found in our law books, especially from the cases of Clayton v. Ramsden (1942) Chancery 1 and (1943) Appeal Cases 320 and Re Tuck's Settlement Trust (1978) Chancery 49. If a man desires that his daughter should only marry "a Jew" and cuts her out of his will if she should marry a m......
- Mandla (Sewa Singh) v Dowell Lee