Langstone v Hayes

 

Langstone v Hayes

FAMILY; Ancillary Finance and Property, Other Family: SUCCESSION; Administration of Estates

COURT OF APPEAL

SCOTT, MACKINNON AND TUCKER LJJ

26 OCTOBER, 14 NOVEMBER 1945

Husband and Wife – Separation deed – Covenant by husband to pay annuity to wife – Term during which annuity payable not stated – Death of husband –

Whether husband’s estate liable for payments – Law of Property Act, 1925 (c 20), s 80(1).

By a separation deed which recited that the parties had agreed to live separately and apart, the husband covenanted to pay the wife “for her separate use and

for the maintenance and support of herself a clear annuity of £104 payable by weekly payments of £2 each until determined as provided by cl 3(ii) hereof.” Cl

3(ii) provided that the annuity should cease to be payable if the husband and wife resumed cohabitation or if the wife did not remain chaste. The husband and

wife covenanted not to molest each other and the wife covenanted to support and maintain herself and to keep the husband indemnified against all debts and

liabilities incurred by her; if she failed to do so, the husband was entitled to deduct out of subsequent payments of the annuity whatever amounts he had paid

by reason of her breach. On the husband’s death, his executor discontinued the weekly payments. The wife brought an action against the executor and

contended that under the Law of Property Act, 1925, s 80(1), the covenant by the husband to pay the annuity bound his estate. On behalf of the executor, it

was contended that sect 80(1) did not apply because there was a contrary intention expressed in the deed and the subsection did not in itself have the effect of

binding a covenantor’s estate by an obligation which was intended to cease on his death:—

Held – (i) Upon the true construction of the deed, the covenant to pay the annuity was not intended to continue after the husband’s death.

(ii) since there was a contrary intention expressed in the deed, the Law of Property Act, 1925, s 80(1) did not apply. The effect of that subsection was not

to create a liability on the personal estate of a covenantor but to extend a pre-existing liability of that estate to the real estate.

Kirk v Eustace distinguished.

(iii) there was no general rule of law that a covenant in a separation deed was intended to bind the estate of the covenantor; whether such an obligation

was intended depended on the terms of the particular contract. In the present case, the obligation to pay the annuity did not pass to the executor, since the

husband’s covenant could not be construed as intended to continue after his death.

Notes

There is no general rule that the covenants in a separation deed ar to be construed as binding the estate of the covenantor. It is a question of construing the

provisions of each deed, and even the inclusion of such a phrase as “during the life” of the wife is not conclusive, as is shown by Kirk v Eustace. Here the

provisions of the deed appear to assume that the husband is still alive, and there, is therefore, a contrary intention within the Law of Property Act, 1925, s 80.

􀂭 114􀀉

As to Duration of Annuities under Separation Deeds, see Halsbury, Hailsham Edn, vol 16, pp 723, 724, para 1178, and Supplement; and for Cases, see

Digest, Vol 27, pp 231–233, Nos 2028–2043, and Supplement.

Cases referred to in judgment

Kirk v Eustace [1937] 2 All ER 715, [1937] AC 491, Digest Supp, 106 LJKB 617, 157 LT 171, revsg [1936] 3 All ER 520.

Nicol v Nicol (1886), 31 ChD 524, 27 Digest 245, 2158, 55 LJCh 437, 54 LT 470.

Appeal

Appeal by the plaintiff from a decision of His Honour Judge Dale given at Birmingham County Court, on 25 June 1945, in which he held that, upon a proper

construction of a separation deed made between Cecil Joseph Langstone and his wife, Bertha Langstone, an annuity of £104 payable by the husband to the

wife ceased to be payable on the husband’s death. The action by the wife against the husband’s executor for payment of the annuity was commenced by

specially indorsed writ in the district registry and remitted for trial to the county court. The facts are fully set out in the judgment of the Court of Appeal

delivered by Scott LJ.

H D Baskerville for the appellant.

G L Dawson for the respondent.

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Cur adv vult

14 November 1945. The following judgment was delivered.

SCOTT LJ [delivering the judgment of the court]. This appeal from His Honour Judge Dale in a remitted action depends entirely on the question whether his

interpretation of a deed of separation dated 10 June 1926, was correct. The claim in the action was by the plaintiff (to whom we will refer as the wife) for

£106 for arrears of an annuity of £104 a year payable weekly, alleged to be due to the plaintiff from the defendant, as executor of the will of Cecil Joseph

Langstone deceased, her late husband. Of this sum £14 had already accrued due at the date of the death, being the amount due for seven weeks, in respect of

seven weekly payments of £2 each for the period which had elapsed from the time of the last previous payment by the husband to the date of his death, which

occurred on 2 April 1944. This sum was paid into court with the admission of liability. The dispute was as to the liability for the balance of weekly payments

claimed to have fallen due from the executor after the death. The main issue tried by the county court judge was whether, on its true construction, the

covenant by the husband bound his personal representatives, or was limited to the joint lives of the spouses. There was in the county court also a separate

question about income tax, but that was not raised before us.

Counsel for the wife, both below and before us, relied upon the decision of the House of Lords in Kirk v Eustace; or alternatively, if that decision did not

conclude the appeal in his favour, he submitted that his contention gave the proper meaning to the covenant and he further relied upon certain observations of

Lord Atkin, and possibly of Lord Russell of Killowen, in that case. In our view, neither argument avails the wife. Unless the deed or written contract under

consideration is a matter of common form—at least, in respect of the particular provision which falls to be considered—it is dangerous to seek to apply to it

the judicial interpretation of another document unless that other document is so similar in its terms as to be almost identical: a principle applied to a separation

deed by Bowen LJ (31 ChD 524, at p 529), in Nicol v Nicol. In Kirk v Eustace the deed of separation said expressly that the husband’s obligation to pay was

to endure “during the life” of the wife. The majority of the Court of Appeal in that case (of which I was one, Eve J differing) thought that even that clear

expression of intention ought to give way to other indications in the deed of an intention that it was only to operate during the joint lives of the spouses. The

instant deed, as the county court judge has pointed out, differs in an important respect from the deed in Kirk v Eustace: viz, by the complete omission from the

deed of the phrase “during the life of the wife.” There were apparently no children of the marriage.

The following provisions are contained in the deed:

‘1 (i) … the wife may at all future times live apart from the husband and free from his control … (iii) [to be read with the proviso to cl. 3 (ii)] …

the husband will pay to the wife … for her separate use and for the maintenance and support 􀂭 115􀀉 of herself a clear annuity of £104 … payable by

equal weekly payments of £2 each … until determined as provided by cl. 3 (ii) hereof … (3) (ii) If at any future time the spouses shall with their

mutual consent again cohabit as man and wife or the wife shall not remain chaste the annuity (or allowance) shall thereupon determine … and [the

deed] shall become void …’

I can see nothing in these provisions to extend the husband’s covenant beyond the term of their joint lives: everything presumes the continuance of his life

during performance of the covenant to pay. This view of the agreement is supported by other terms in the deed. Cl 1(iv) is the covenant by the husband not to

molest, and so on; it is obviously limited to his life. Cl 2 contains the wife’s covenants. By cl 2(i) she promises to support and maintain herself—a

meaningless term if addressed to the time when his death will have deprived her of her common law right to be maintained by him. Cl 2(ii) is her covenant not

to molest “at any future time“—obviously she could not do so after he is dead. The same applies to cl 2(iii), to keep the husband indemnified against liabilities

put on him by her contrary to the deed: to this there is a proviso, in cl 3(1), that, if she breaks her promises in cl 2(i) (or (iii)), the husband may deduct the

amount of the liability so imposed by her on him in breach of the deed and may repay himself out of subsequent payments of the annuity. By cl 2(iv) the wife

covenants not to take legal proceedings against him for misconduct committed before the date of the deed. Every one of these provisions seems to us in terms

to assume that the husband is still alive and, therefore, to apply only to the period of their joint lives; thus distinguishing this deed of separation, on a radical

point of its terms, from Kirk v Eustace.

The respondent before us, however, relied on two other grounds to support his contrary submission. The first was in answer to a contention that the Law

of Property Act, 1925, s 80 (i), in terms imposed such an obligation on the husband. That subsection says:

‘A covenant … under seal made after Dec. 31, 1881 [when the Conveyancing Act, 1881, s. 59, which it superseded, came into operation] binds the

real estate as well as the personal estate of the person making the same if and so far as a contrary intention is not expressed in the covenant … ’

The answer to that contention is two-fold: (i) that a contrary intention is expressed in this deed; (ii)—and this we add subject to what is said below in regard to

the language of the noble Lords in Kirk v Eustace—that the effect of that section is not to create a liability on the personal estate, but to extend a pre-existing

liability of that estate to the real estate. That this is the meaning of the subsection is borne out, we think, by the terms of the Conveyancing Act, 1881, s 59, the

object of which was to extend to heirs an obligation not previously binding on them, but only on the personal estate.

The last argument for the respondent was that, even if the decision in Kirk v Eustace did not help him, there were expressions of opinion by one, if not

two, of the noble Lords which, though not necessary to the decision and therefore not actually binding on this court, gave support to his interpretation of the

deed in the present case and ought, in due respect to the House of Lords, to be followed by us. Lord Atkin said ([1937] 2 All ER 715, at pp 717, 718):

‘… while it is true that the covenant was not expressly made by the covenantor for his executors and administrators, [he then quoted the Law of

Property Act, 1925, s. 80(1), and continued:] therefore, this contract, which is under seal, is to be read as if it were made by the husband for his

executors and administrators, unless the contrary intention is found expressed in the covenant. So far, the matter seems to me to be beyond question,

and the wife has the right expressed in the deed.’

Later, Lord Atkin repeated ([1937] 2 All ER 715, at p 719):

‘… the statute quite plainly imposes an obligation which binds his estate, unless the contrary intention is expressed. I find no contrary intention

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expressed in the deed. If I had to consider the intention of the parties at all, I should have come to the conclusion that the intention was that the

obligation was to last after the death of the husband; but it is unnecessary to decide that.’

Lord Russell of Killowen (as well as the other noble Lords) based his decision we think, on the words of that deed “during the life” of the wife; and we cannot

see in his decision any reference to any other ground of decision.

We are not sure whether it was suggested in argument that in a deed of 􀂭 116􀀉 separation there is a rule of law that covenants are to be construed as

intended to bind the estate of the covenantor, but, if it was, we know of no such general rule. There is no question here of the scope or limitation of the maxim

actio personalis moritur cum persona. There was no cause of action (except for the £14) which had arisen before the death: the only question is whether the

promise to pay continued in force after the death so as to give rise at the end of each week to a new cause of action against the executor if he did not recognise

the covenant as binding on him. The question whether such a contractual obligation passes to the executor must, in our view, depend on the terms of the

contract which is supposed to pass it on. In the case of a promise of an essentially personal kind, such as to paint a picture, obviously it does not pass: but the

reason it does not pass is because the contract, truly interpreted, did not intend it to pass. In other words, the passing or lapsing of the promise on the death of

the promisor must depend on the terms and nature of the contract, construed, like every other contract, in the light of the surrounding circumstances. In the

present case, we can see no reason for construing the husband’s covenant as intended to continue after his death.

The appeal must be dismissed with costs.

Appeal dismissed with costs.

Solicitors: Ward, Bowie & Co agents for Duggan, Elton & James, Birmingham (for the appellant); Caporn & Campbell agents for A C Hayes & Sheppard,

Birmingham (for the respondent).

C StJ Nicholson Esq Barrister.

[1946] 1 All ER 117