Later decisions that cite Hancock v Watson
Lorp Davey. My Lords, in this case Richard Hancock, by his will dated June 17, 1850, gave the residue of his property to trustees upon trust to permit his wife (who died in November, 1876) to receive the income during her life for her separate use, and after her death upon trust to be divided into five equal portions, which he allotted in the manner following: To Susan Drake he gave two of such portions, to his brother William one such portion, to his brother Charles one such portion, and to the sons of his late brother Sampson the remaining one such portion. The will then proceeds as follows: '' But it is my will and mind that the two-fifth portions allotted to the said Susan Drake shall remain in trust, and that she be entitled to take only the interest and annual proceeds of the shares so bequeathed to her during her natural life, and for her sole and separate use independent of her present or any future husband, but without power of anticipation, and from and after her decease in trust for the benefit of any child or children born unto her the said Susan Drake by her present or any future husband upon his or their attaining the age of twenty-five years, if a son or sons, or if a daughter or daughters upon her or their attaining the age of twenty-one years, or upon her or their marriage, whichever of these events may first happen; but in default of any such issue, then and in that case the said two-fifths of my residuary estate and any accumulation of interest thereon shall go and be divided subject to the appointment of my wife among the children of my brother Charles ; but if there be no such appoint- ment, then to be equally divided among such children, payable - if a son or sons upon their attaining the age of twenty-five years, and if a daughter or daughters upon her or their attaining (1) (1868) L. BR. 3 H. L. 160. BOG: AND PRIVY COUNCIL. the age of twenty-one years, or upon her or their marriage, whichever event may first happen." The testator's widow made no appointment of the two-fifths allotted to Susan Drake. Susan Drake died on June 26, 1899, without ever having had any issue. The two-fifths of the testator's residuary estate allotted to her are now represented by a sum of 12,3997. 10s. Reduced 8 per cent. Annuities. The appellants are the children of the testator's brother Charles, and in the events which have happened they claim to be entitled to Susan Drake's two-fifths of the residuary estate under the gift over stated above. They are also next of kin of the testator ; and if they fail on their first point they contend that the share in question is undisposed of. Your Lordships will observe that the disposition under which the appellants claim is an executory limitation, to take effect in default of such issue as mentioned of Susan Drake, i.e., her children, whether born before or after the testator's death, who shall attain the age of twenty-five years in the case of sons, and twenty-one years or be married in the case of daughters. This event may, of course, happen beyond the limits allowed by law. An executory devise is an infringement on the rules of the common law, and the conditions for its validity are well settled. So far back as the year 1787 Lord Kenyon, then Master of the Rolls, thus expresses himself in Jee v. Audley (1): "The general principles which apply to this case are not disputed ; the limitations of personal estate are void unless they neces- sarily vest, if at all, within a life or lives in being, and twenty- one years or nine or ten months afterwards. This has been sanctioned by the opinion of judges of all times, from the time of the Duke of Norfolk's case to the present; it is grown reverend by age, and is not now to be broken in upon." And in advising this House in Dungannon v. Smith (2), a case to which I shall refer again, Cresswell J. stated the rule thus: '" It is a general rule, too firmly established to be controverted, that an executory devise to be valid must vest, if at all, within a life or lives in being and twenty-one years after; it is not (1) (1787) 1 Cox,324; 1R.R.46. (2) (1846) 12 Cl. & F. 546, at p. 563. A. C. 1902. 8 C | 17 H. L. (E.) 1901 a Hancock Vv Watson. Lord Davey. 18 BH, L. (&.) 1901 oom Hancock v. WATSON. Lord Davey. HOUSE OF LORDS [1902] sufficient that it may vest within that period; it must be good in its creation, and unless it is created in such terms that it cannot vest after the expiration of a life or lives in being, and twenty-one years and the period allowed for gestation, it is not valid, and subsequent events cannot make it so." All this is not disputed by the appellants ; and it would there- fore seem that the gift over to the children of Charles in the will before your Lordships must prima facie be held void. But the appellants contend that they are entitled to look at the events which happened, and to construe the event on which the gift over is to take effect as if it were two events. They say that the meaning of the testator's words rightly construed is: "if Susan Drake shall have no issue, or if her children die without having fulfilled the prescribed conditions for the vesting of the property in them." In the first case they say the gift is good, and in the second only is it void. My Lords, the first observation that occurs to one is that this is not the language of the will. The learned counsel for the respondent pointed out grammatical difficulties in reading the words in that way. If one were at liberty to alter the language of the will in the manner suggested, I really do not see why one should not split the event into as many con- tingencies as can be pointed out in which the gift over would take effect within the allowed limits. For instance, why not divide the event in the present case into at least three: (1.) If Susan has no children; (2.) if her children all die under twenty-one; or (8.) if they die under twenty-five? And there may be other contingencies into which the event could be broken up. In that case, what becomes of the rule that you are not to look at the event which actually happens for deter- mining the validity of the gift? I again quote Lord Kenyon. 'Another thing pressed upon me," he says, "is to decide on the events which have happened; but I cannot-do this with- out overturning very many cases. The single question before me is, not whether the limitation is good in the events which have happened, but whether it was good in its creation ; and if it were not I cannot make it so." But, my Lords, the same argument which has been pressed SS ASC: AND PRIVY COUNCIL. 19 upon your Lordships was addressed to the Court of Common H.L.(&) Pleas more than a hundred years ago and overruled. In the 1901 case of Proctor v. Bishop of Bath and Wells (1), decided in //t.xcoox the year 1794, an advowson was devised to the first or othe son of Thomas Proctor that should be bred a clergyman, an be in holy orders, but in case Proctor should have no such son, to one Moore in fee. There being no particular estate to support the devise as a contingent remainder, it could take effect only as an executory devise. Proctor died without having had a son, and Moore thereupon claimed to present. It was argued that the limitations in the will were alternate: if Proctor should have a son in holy orders Moore was excluded, and if he had no son he could take. It was replied that in truth there was but one contingency on which the devise to Moore was limited, and the case was distinguished from a case of Longhead v. Phelps (2), where two contingencies were expressed in the disjunctive, the first of which was good. The Court of Common Pleas was very clearly of opinion that the first devise to the son of Thomas Proctor was void from the uncertainty when such a son, if he had any, might take orders, and that the devise over to Moore, as it depended on the same event, was also void, for the words of the will would not admit of the contingency being divided. Again, in Dungannon v. Smith (8) a testator bequeathed leaseholds for years to trustees on trust for B. for life, and after his death to permit such person, who for the time being would take by descent as heir male of the body of B., to take the profits thereof until some such person should attain the age of twenty-one years, and then to convey the same to such person. so attaining that age. Your Lordships will observe ' that there was no gift of the corpus of the estate except in the direction to convey, and the event upon which that was to take place might exceed the limits allowed by law. At the death of B. his son and heir had attained twenty-one. It was argued on his behalf that you might split the gift into two parts, and construe it as a direction to convey to the first heir v. WATSON. Lord Davey. (1) 2H. Bl. 358; 3B. R. 417. (2) (10 Geo. 8) 2 W. BI. 703. (3) 12 Cl. & F. 546. 8 C 2 29 HOUSE OF LORDS [1902] H.L.(E.) male on his attaining twenty-one, which would be good, and 1901 in default of his doing so to the successive heirs male. This Ha e00x argument was in principle and substance precisely that put forward by the appellants in the present case. I will quote only the opinion of Maule J., one of the learned judges who advised the House. He says (1): "' With respect to this argument it may be observed that the words of the testator are clear and unambiguous. There is no difficulty in dealing with them as they stand in the will unless it be sought to evade the rule against perpetuity. There is no such rule . of construction as that any words which point out the same course of devolution" (I pause to add "'or describe the same events"') 'as those used by the testator may in construing a will be substituted for those which he has used, a proposition which seems to be assumed in the argument in question. Such a rule would be manifestly inconsistent with the estab- lished law that a gift to take effect on an event which may happen or may not happen within the legal limit is too remote, such a gift being always capable (consistently with the same order of devolution) of being divided into two gifts, one necessarily to take effect, if at all, within the legal time, and the other afterwards." I will not delay your Lordships by quoting what was said by the noble and learned Lords to the same effect in giving judgment, because I do not find the point more clearly put than it was by Maule J. The appellants, however, rely on another case in this House of Hvers v. Challis. (2) On a superficial view of this case it appears to lend some support to their argument; but on a careful examination it will be found to have been decided on a totally different point, which has no application to the present case. The will in Hvers v. Challis (2) contained a very complicated series of devises of a freehold estate. It is sufficient for the present purpose to say that there was a devise to the testator's daughter Ann for life with remainder to her children, if sons, living to attain twenty-three, and if daughters, living to attain twenty-one, with a gift over under (1) 12 Cl. & F. at p. 579. (2) UH. L. 53H Q. WATSON. Lord Davey. A.C. AND PRIVY COUNCIL. which the appellant claimed, Ann having died childless. As an executory devise the gift over was admittedly too remote, but it was argued that it took effect immediately on Ann's death as a contingent remainder. It is a familiar principle of English real property law that if a devise can take effect as a remainder it shall do so, and it was accordingly held in this House that the gift over, in the event which had happened, operated and took effect as a contingent remainder, and the question of remoteness, therefore, did not affect it. That this was the point decided is clear from the opinion of the judges who were called in to assist this House, delivered by Wight- man J., as well as from the judgments delivered by the noble and learned Lords who heard the case. Wightman J. said: ""No case or authority has been cited to shew that where a devise over includes two contingencies which are in their nature divisible, and one of which can operate as a remainder, they may not be divided though included in one expression, and our opinion does not at all conflict with the authority of the cases of Proctor v. Bishop of Bath and Wells (1) and Jee v. Audley (2), in neither of which cases was it possible for the limitation over to operate as a remainder."' Lord Cranworth said: "I think that the gift to the children of John and Sarah on the death of Ann without issue in 1847 took effect as a contingent remainder and not as an executory devise, and so was good because when the particular estate determined the contingency on which the remainder was to take effect had happened." And he supports his opinion by reference to a case of Gulliver v. Wickett (8), which he discusses at some length. Lord Brougham said: "As to the cases, of which there are several, I need not go into them. One of them is Proctor v. Bishop of Bath and Wells. (1) In that case there was no particular estate to support the contingent remainder, and it was clearly an executory devise." On these grounds this House reversed the decision of the Exchequer Chamber and restored that of the Queen's Bench. (1) 2H. Bl. 358; 3 RB. R. 417. (2) 1 Cox, 324; 1R. R. 46. (3) (1745) 1 Wils. 105. 21 H. L. (B.) 1901 —~ Hancock OF Watson. Lord Davey. 22 H. L. (&.) 1901 —~ Hancock %. Watson. Lord Davey. HOUSE OF LORDS [1902) It is apparent that the authority of Proctor v. Bishop of Bath and Wells (1) is untouched by anything decided or said in Evers v. Challis. (2) I am, therefore, of opinion that the appellants fail on their first point. Some minds may be disposed to sympathise with Sir William Grant when he says (8): '' Perhaps it might have been as well if the Courts had originally held an executory devise transgressing the allowed limits to be void only for the excess where that excess could, as in this case it can, be clearly ascertained.'' But the law is what it is. The appellants' second point is that the two-fifths allotted to Susan Drake on failure of the gift over goes to the next of kin of the testator, and not to Susan's representatives as declared by the Court of Appeal. I confess to some surprise at hearing this point treated as arguable. For, in my opinion, it is settled law that if you find an absolute gift to a legatee in the first instance, and trusts are engrafted or imposed on that absolute interest which fail, either from lapse or invalidity or any other reason, then the absolute gift takes effect so far as the trusts have failed to the exclusion of the residuary legatee or next of kin as the case may be. Of course, as Lord Cottenham pointed out in Lassence v. Tierney (4), if the terms of the gift are ambiguous, you may seek assistance in construing it—in saying whether it is expressed as an absolute gift or not—from the other parts of the will, including the language of the engrafted trusts. But when the Court has once determined that the first gift is in terms absolute, then if it is a share of residue (as in the present case) the next of kin are excluded in any event. In the present case I cannot feel any doubt that the original gift of two-fifths of the residuary estate to Susan Drake was in terms an absolute gift to her. The testator uses the words '"'T give," and speaks of the shares subsequently as "' allotted" to her. Mr. Levett contended that there are words in the will which confine her interest in the allotted portions to her life. But that is not what the testator has said: he has directed that (1) 2 H. Bl. 358; 3 R. R. 417. (3) (1817) Leake v. Robinson, 2 (2) 7H. L. C. 531. Mer. 362, 389; 16 R. R. 168. (4) (1849) 1 Mac. & G. 551. A. C. AND PRIVY COUNCIL. during her life she shall have only the income of her share for her separate use without power of anticipation. But that is quite consistent with a power to dispose of the capital after her death so far as it should not be exhausted by the trusts declared of it and with the right of her representatives to claim it. In other words, as between herself and the estate there is a complete severance and disposition of her share so as to exclude an intestacy, though as between her and the parties taking under the engrafted trusts she takes for life only. Iam of opinion the appeal should be dismissed with costs, and I move your Lordships accordingly. . Lorp SHAnD. My Lords, I have had an opportunity of fully considering in print the opinion of my noble and learned friend Lord Davey, and I concur in the judgment and in all that his Lordship has said. I shall only add that, on the points raised in the appellants' argument, the authorities to which my noble and learned friend has referred seem to me to be conclusive against the appellants' argument in all its bearings. Lorp Brampton. My Lords, I entirely concur. Lorp Ropertson. My Lords, I concur. Hart oF Harspury L.C. My Lords, I concur, and I have only to say that I think that on both points the matters argued before your Lordships are so fully covered by the authorities that I do not think it necessary to add anything to what my noble and learned friend Lord Davey has said. Order appealed from affirmed and appeal dismissed with costs. Lords' Journals, December 16, 1901.