Re Wright. Blizard v Lockhart
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE DENNING,LORD JUSTICE ROMER |
| Judgment Date | 13 April 1954 |
| Judgment citation (vLex) | [1954] EWCA Civ J0413-5 |
| Date | 13 April 1954 |
| Court | Court of Appeal |
[1954] EWCA Civ J0413-5
(Considered Judgment).
In the Supreme Court of Judicature.
Court of Appeal.
Lord Justice Denning and
Lord Justice Romer.
re Wright deceased.
MR G.B.H. DILLON (instructed by Messrs Deale & Co.) appeared on behalf of the Appellants (the first and second Defendants).
MR HUBERT ROSE (instructed by Messrs Frank Taylor Nightingale & Baker) appeared on behalf of the Respondents (Plaintiffs).
THE HON. DENYS BUCKLEY (instructed by the Treasury Solicitor) appeared on behalf of the Respondent (Her Majesty's Attorney-General).
I will ask Lord Justice Romer to deliver the first Judgment.
This is an appeal from an Order of Mr Justice Roxburgh dated the 19th February, 1954, under which the learned Judge made two declarations and gave further directions whichwere consequential thereon. By the first declaration he declared that the Defendant Her Majesty's Attorney-General is not stopped by the doctrine of res judicata by implication from contending that the date of the death of the Testatrix, Alice Marion Wright, is the proper date at which to ascertain the practicability of a certain charitable trust which she sought to establish by her Will. By the second declaration he declared that the date of the Testatrix's death was in fact the proper date at which to ascertain the practicability of the said trust. The Defendants to these proceedings who represent the Testatrix's next of kin appeal against both of these declarations.
By her Will dated the 2nd December, 1932, the Testatrix, after appointing executors and trustees and giving certain legacies, devised and bequeathed her residuary real and personal estate upon the usual trusts for sale and conversion and for investment of the proceeds and (by clause 7) directed that her trustees should stand possessed of the residuary trust fund "Upon trust therewith to found and maintain a Convalescent Home to be called "The Alice Marion Wright Convalescent Home'" for the purposes and in the manner which she thereupon proceeded, with a wealth of detail, to prescribe. It is unnecessary to set forth these purposes with any particularity; it is sufficient to say that her general object was to provide a place in which impecunious gentlewomen who are recovering from illness should be permitted to sway free of expense to them curing convalescence in order to recuperate their health.
After the Testatrix's death, which occurred on the 15th March, 1933, a probate action was commenced but was settled upon certain terms, of which the only material one, for present purposes, was that a lady named Mrs Webb was to take a life interest in the Testatrix's residuary estate. These terms were duly filed and made a Rule of Court.
The net estate of the Testatrix was sworn for purposes of probate at about £37,750.
Mrs Webb died on the 15th February, 1942, and the Testatrix's residuary trust fund accordingly fell to be dealt with in accordance with clause 7 of her Will. It was, however, insufficient, in the view of the trustees, to enable them to carry out the wishes of the Testatrix in the manner which she had expressed and so, being uncertain as to what they ought to do with regard to the charitable trust, they issued an Originating Summons in the Chancery Division on the 23rd June, 1943, asking for the directions of the Court. The questions which the trustees asked by this Summons were as follows: "(1) Whether on the true construction of the said Will and in the events which have happened the gift therein contained of the proceeds of sale of the Testatrix's residuary real and personal estate upon trust there out to found and maintain a Convalescent Home to be called 'the Alice Marion Wright Convalescent Home' for the purposes and in manner therein particularly mentioned constitutes a good and effective gift. (2) If the answer to Question (1) shall be in the affirmative, that a scheme may be directed for the purpose of carrying the said trust into effect or that otherwise directions may be given as to how the Plaintiffs, as the present trustees of the said Will, ought to apply or deal with the subject matter of the said gift. (3) If the answer to Question (1) shall be in the negative whether on the true construction of the said Will and in the events which have happened the Testatrix has died intestate in respect of the subject matter of the said gift. (4) If necessary an enquiry whether it is now or will at any future time be possible to carry into execution the trusts declared by the said Will for the establishment in the manner thereby directed of a convalescent home to be called 'the Alice Marion Wright Convalescent Home'". Then (5) asks for an enquiry as to next of kin; (6) for a representation Order; (7) for administration, and (8) for provision as to costs.
This Summons first came before Mr Justice Vaisey on the 2nd February, 1944, and, having regard to the difficulties ofwar time, he directed it to stand over for three years, namely, to the 3rd February, 1947, and ordered that the Plaintiffs (the trustees) should restore the application to the list for hearing, with liberty to the parties to apply to restore it in the meantime if they should be so advised. The Summons was restored for hearing and came on before Mr Justice Wynn-Parry who, by Order dated the 27th January, 1948, directed an inquiry in the form indicated by paragraph 4 of the Summons, namely, "An inquiry whether it is now or will at any future time be possible to carry into execution the trusts declared by the Will…for the establishment in the manner thereby directed of a convalescent home to be called 'The Alice Marion Wright Convalescent Home'". The Order also directed an inquiry as to next of kin and further directed that the rest of the Originating Summons should stand over. The Attorney-General was represented by Counsel on the adjourned hearing before Mr Justice Wynn-Parry (as also were the other parties) and it was, of course, open to him to contend that the inquiry as to the practicability of the Convalescent Name was proceeding upon a wrong basis and that the real question to which an inquiry should be directed was whether it was possible at the death of the Testatrix to carry her charitable intentions into effect. He did not, however, so contend but was content to accept the inquiry in the form directed by the Order.
This inquiry was accordingly taken in Chambers and on the 4th July, 1952, the Master certified as follows: "It is not now possible to carry into execution the trusts declared by the Will of the above named Testatrix Alice Marion Wright for the establishment in the manner thereby directed of a convalescent home to be called 'the Alice Marion Wright Convalescent Home'. From the evidence adduced I am unable to certify whether it will at any future time be possible to carry into execution the said trusts and the question is left for the consideration of the Court." The Master further stated in his Certificate that it appeared from an affidavit of Sir Henry Tidy (the Chairman of theConvalescent Homes Committee of the King' Edward's Hospital Fund for London) that in his opinion the residuary trust fund was insufficient and that the smallest sum which would be sufficient would be approximately £25,000 with an additional sum of £5,000 per annum for maintenance.
No application was made to discharge or vary the Master's Certificate.
On the 11th September, 1953, the Plaintiffs, pursuant to leave given by the Master, amended the Originating Summons by introducing, between Questions 2 and 3 of the Summons, as originally framed, the following further question: "Alternatively, whether on the true construction of the said Will the Testatrix has shown therein a general charitable intention and the subject matter of the said gist ought to be applied cy press."
The , an so amended, came on for further hearing before in justice Roxburgh and he made the order of the 19th February, from which this appeal has been brought. Mr Buckley, who was now appearing on behalf of the Attorney-General, sought to argue before the learned that the relevant date for Inquiring whether the Testatrix's charitable intentions were being carried into effect was not the date of the Order mane by Mr Justice Wynn-Parry, or at any time thereafter, but was the date upon which the Testatrix died. Mr Dillon, for the next of kin, submitted, that, having regard to the previous Orders and proceedings, it was not now open to the Attorney-General so to contend he argued that the Attorney-General was estopped by res judicata by implication from raising this point.
Mr Justice Roxburgh, with some hesitation, decided in favour of the Attorney-General upon this question. He said that the principles of law applicable had been concisely stated in In re Koenigsberg (1949 Chancery, page 348) and cited the following passages from the Judgment of Lord Justice Somervell in that case: "If the Order as made by the Court necessarilyinvolves a finding (whether there was argument or not) on the point which is later sought to be litigated, the cases lay down that that point cannot be raised…I agree that the word 'traversable'" (the word used by Lord Shaw in delivering the Judgment of the Privy Council in Hoystead v. Commissioners of Taxation, 1926 Appeal Cases, page 155, at page 166) "contemplates pleadings rather than an Originating Summons. But when a trustee or anyone takes out an Originating...
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