Re Whitrick, deceased ; Sutcliffe v Sutcliffe

JurisdictionEngland & Wales
CourtCourt of Appeal
JudgeLORD JUSTICE JENKINS,LORD JUSTICE ROMER
Judgment Date17 May 1957
Judgment citation (vLex)[1957] EWCA Civ J0517-3

[1957] EWCA Civ J0517-3

In The Supreme Court of Judicature

Court of Appeal

Before:-

Lord Justice Jenkins

Lord Justice Romer

Lord Justice Sellers

In the Matter of the Estate of Amanda Whitrick Deceased. And

In the Matter of the Trusts of the Will (Dated the 9Th August, 1935) of the Said Amanda Whitrick.

Beatrice Sutcliffe
(Married Woman)
and
William Sutcliffe Mary Precious
(Married Woman)
and
Elsie Jowitt
(Married Woman)
and
Gladys Stockdale
(Married Woman)
and
Arnold Ross

MR. W.S. WIGGLESWORTH, instructed by Messrs. J. Eaton & Co. appeared for the Appellant (Plaintiff)

The Defendants did not appear and were not represented by Counsel.

LORD JUSTICE JENKINS
1

: tHis is an appeal from an Order of Mr. Justice Hermen dated the 7th February,1957. The appellant, the plaintiff in the proceedings, is the adinistratrix, with will annexed, ofthe estate of the testatrix Amanda Whitrick. The testtrix made a will which, in the events which happened, necessaritly resulted in an intestacy as to one-third of her residuary estated owing to the death in her lifetime of one of three named residuary legaree. The matter in dispute is whetherthe testatix died intestate as to the whole of her eatate and not merely as to one-third of it, onthe ground that in the events which happened she made no effective disposition of her estste.

2

The first defendent is one of the residuary legatees under the will of the testatrix, and his interest would be to present argumrent limiting the intestacy to one-third. The remaining four defendants (there are five ina all)are representative of the next of the testtrix, and their interestwould be to argue for a total intestacy.

3

The proceedings have had an unfortunate history. The plaintiff, Beatrice Sutcliffe, as administratrive naturally wanted.this question determined. The summons was accordingly issued with the parties I have mentioned as defendants as being proper parties to argue either side of the question on which a decision was required Most unfortunately from the cout'spoint of view, none of the defendants have thought fit to taake any part in these proceedings. I understand that they did not enter appearance to the summons, and were not represented at the hearing and they have not been represented at the hearing before us. The notice of appeal has been filed in the offices of the court, and the parties have been notified of the appeal by registered letter; and one can thus say that everything that need or or ought to have been done has been done to secure their attendance, without result. The court, therefore finds itself in the soeewhat embarrassing position of having to determine the question in the presence of erne side only, Mr. wiggleswrth for the plaintiff has presented a most fair and balanced argument as one would expect and has given us all the assistance which he possibly could. That, however, is not a satisfactory substitute for having the matter argued in the presence of all parties interested.

4

The circumstances which give rise to the question are these. The testatrix made a will dated, the 9th August,1935, and it wase as far as material, in these terms. She revoked all former wills, and provided as follows: (2) Subject to the payment of all ray just debts funeral and testamentary expenses I give devise and bequeath the whole of my real and personal estate whateoever and wheresoever the same shall be at my decease unto ay husband the said Thomas whitrick absolutely and I appoint my said husband to be the sole executor of this my will. (3) In the event of w husband the said Thomas Whitrick and myself both dying at the same time and in that case the following provisions shall apply namely. (4)I appoint W sister Beatrice gatcliffe (hereinafter called 'my trustee,') to be the sole executrix amd trustee of this isf will (5) I give devise and bequeath the whole of my real and personal estate whatsoever and wheresoever the same shall fes at Ef decease upon my trustee upon trust to sell collect call in and convert into taoney the same or such part or parts thereof as shall not consist of money". with the usual directions as to payment of debts and so forth; and the clause them continues: upon further trust to pay asd divide the residue of such proceeds and of my ready money unto and equally between my sister the said Beatrice Satcliffe and clara scott and my nephew William Satcliffe for their ownuseand benefit absolutely". Clara Scott was the nased residnary legatee who, as I have said, died in the lifetime of the testatrix, and on account of her death there must in any event be an intestacy as to one-third of the residuary estate.

5

The question as to total intestacy arises in this way. It will have been observed that the will begine with an absoluts gift to the testatrix's husband. It then goes on in express terms to provide for the event of both the testatrix and her husband dying at the same time. I will read clauses again: " In the event of my husband the said Thomas Whitrick and myself both dying at the same time then and in that case the following provisions shall apply, namely". I think it is plain beyond argument that everything in the will which follows clause 3 is governed by clause 3. and consequently, according to the literal meaning of the language. there is only a disposition there in the avent of both dying at the same time

6

The testatrix's husband made a will of the same date in favour of the testatrix in similar form, so s clauses 1, 2 and 3 are concerned's to the will of the testatrix herself; that is to say, there is a gift to the testatrix absolutely followed is clause 3 by the provision: "In the event of my wife the said Amanda whitrick and myself both dying at the same time then and in that case the following provisions shall apply, namely". The provisions which follow that clause ia the husband's willare different from those ia the wife's will, but i t is unnecessary to go into the details of that.

7

The husband died oa the 20th October,1948. leaving the testatrix him surviving. Consequently, so far as his will was concerned.the gift ia favour of the testatrix took effect. The testatrix proved his will on the 16th December,1940.

8

The testatrix died on the 26th March, 1954, and, as she had survived her husband, the testator, the primary gift in his favour ia clause 2 of the will did not take effect. The testatrix having died on the 26th March, letters of administration of her estate were granted to the present applant.

9

The question which we are asked to deside is whether there should be read into this will by necessary implication provision for the constimgency of the husband dying in the testatrix's lifetime so that the provisions of clauses 4 aad 5 of the will take effect, or whether the court is constrained to confined Itself to the actual language used in the will, in which oase the provisions of clauses 4 and 5 cannot take effect, as on that view they are only limited to takeffect in the event of both the testatrix and her husband dying at the same time, which event did not happen.

10

The reading of words into a will as a matter of necessary implication ie a measure which any court of construction should apply with the greatest caution. Many wills contain slips and omissions and fail to provide for oontlngencies which to anyone reading the will, mlight appear contingencies for which any testator would obviously wish to provide. The court cannot re-write the testamentary...

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