Talbot v Talbot
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE HARMAN,LORD JUSTICE DAVIES,LORD JUSTICE RUSSELL |
| Judgment Date | 16 March 1967 |
| Judgment citation (vLex) | [1967] EWCA Civ J0316-1 |
| Date | 16 March 1967 |
| Court | Court of Appeal (Civil Division) |
In the Matter of The Estate of Peter Talbot deceased:
[1967] EWCA Civ J0316-1
Lord Justice Harman
Lord Justice Davies and
Lord Justice Russell
In The Supreme Court of Judicature
The Court of Appeal
(Civil Division)
(From: Vice-Chancellor Burgess - Palatine Court of Lancaster)
Mr. P.A. FERNS (instructed by Messrs. Gregory Rowcliffe & Co., Agents for Messrs. Edward L. Alker & Ball, Wigan) appeared on behalf of the Appellants (Third, Fourth, Fifth and Sixth Defendants).
Mr. D.B. MALLARD (instructed by Messrs. Hamlins, Grammar & Hamlin, Agents for Messrs. Thomas R. Dootson & Co., Leigh) appeared on behalf of the Respondent-Plaintiffs.
Mr. B.C. MADDOCKS (instructed by Messrs. Sharpe, Pritchard & Co., Agents for Messrs. Ackerley, Heaton & Pigot, wigan) appeared on behalf of the Respondents the First and Second Defendants.
This is an appeal from a decision of Vice-Chancellor Burgess given on the 19th July of last year at the Palatine Court at Liverpool it concerns the will of one Peter Talbot who died in May of 1964 and whose will was proved in January, 1965 by the two petitioners (as they were in the Court below), one of those being a brother and the other being a daughter. All the respondents to the petition were similarly children of the testator. He singled out two of them, John and Joseph, primarily as the object to of his bounty, in this sense, that each of those two was resident in a house that belonged to him, paying a rent and farming some land that went with it, and it was apparently the testator's wish that the two boys who lived in these two farms should have the first refusal, enabling them to live there, but that they should pay the proper price so that they could not get any further advantage, the price falling into residue and being split among all the children equally.
Now there has arisen an unfortunate family dispute over this matter. It probably arises from the fact that this is land potentially of very much rising value and it may well be that if John and Joseph or either of them can exercise the option given by the testator's will he might get a great profit to the dis-advantage of his brothers and sisters, and of course that immediately arouses family jealousy and one can see the difficulty.
However that may be, nothing very much has been done. There have been, we are told, family discussions - family disputes - and they have all come to nothing because no price can be agreed upon for these two holdings. Consequently the executors - whose interests themselves are conflicting, one of them being interested to see the option exercised, the other the other way — have quite properly been advised that they should put the matter into the hands of the Court, and they, in the manner still current in the Palatine Court, petitioned the Court for an answer to the disputed question, which, as set out in the petition, was: Whether, upon the true construction of the will,the options to purchase thereby granted are valid and, if as, on what basis and by whom the properties comprised therein ought to be valued? The Vice-chancellor has decided that by saying that the options are valid and that, as there is no agreement about the method of ascertaining the value at which the options are to be exercised, the Court will take the matter into its hands and he has directed a special enquiry as to the proper value to be put upon each of these two holdings for the purposes of the options.
Now against that the children other than John and Joseph appeal. Principally they say (and I think really this is the pith and marrow of their plea) that this is a contract too vague to be entertained or specifically enforced by the Court. I say "contract" because a testamentary option is something which potentially can become a contract on its exercise at any time by the person holding the option, and as the principles of contract seem to me to apply to it, because the person getting a property under a testamentary option gets it by exercising the option and entering into a contract in that behalf with the executors. That was decided (if there is need for authority) by this Court the other day in the case of re Harmsworth - now on the way to the House of Lords.
The will was not in a very ordinary form, and I think I must recite some of it. The testator made provision for his wife (who, however, predeceased him), and gave his executors £10 each. He then went on "….on the death of my wife I direct that my son John….shall have the option of purchasing Thorn Bush Farm and approximately 11 acres at a reasonable valuation, providing he allows my brother James….to reside at Thorn Bush farm for the remainder of his life" (James is one of the executors) "and I direct that my eon Joseph….shall have the option of purchasing Porch Farm and approximately 6 acres at a reasonable valuation should Joseph refuse the option then it shall be offered to my son John should he refuse then it shall be offered to my eon Ralph should he refuse then it shall beoffered to my eon Geoffrey…. so much for Porch farm. "Should John refuse the option on Thorn Bush farm and the options on Porch Farm be refused then I, direct that the rejected Farm or Farms along with the field approximately three and a half acres situate on the north-west side of Slag Lane with the remainder of my effects whatsoever shall be sold and the proceeds divided in equal shares between my children"; and then they are named.
There is no difficulty about the subject-matter of the two options: I need not go into that. Everybody agrees what "Porch Farm" and "Thorn Bush Farm" and the other "three and a half acres" refer to when the testator mentions them. The words which arouse the controversy are, of course, "at a reasonable valuation", and the question is whether that is sufficient direction to induce the Court specifically to perform any agreement which might arise out of it.
Of course a contract for the sale of land must state a sufficient description of the land and it must state either the price or the agreed method of arriving at the price, and that, in my judgment, is enough. You will find that stated, I think, in all the text books. I take first Sugden, and I quote from the Fourteenth Edition - the author being still Lord St. Leonards, as he had then become. He says this in paragraph 32 on page 287; "If an agreement be made to sell at a fair valuation, the Court will execute it although the value is not fixed". Now that is a perfectly categorical, plain statement; and the learned author - himself no mean authority - supports it by a note which refers to the case of Milnes v. Gery. in 14 Vesey, to which the Vice-Chancellor referred. That went off on a different point but it is a judgment of Sir William Grant, himself a very great authority. He said this at page 407; "The case of an agreement to sell at a fair valuation is essentially different. In that case no particular means of ascertaining the value are pointed out; there is nothing, therefore, precluding the Court from adopting any means, adapted to that purpose".
In Milnes v. Gery the exact means had been pointed out by the testator that is to say there were to be two arbitrators and an umpire. Those means broke down, and the Master of the Rolls came to the conclusion that the Court, where the means pointed out by the testator had broken down, would not create others as that would be something which the Court had no jurisdiction to do, but that, where the matter has left open, as Sir William Grant says, and no machinery was provided,...
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