Re Cooper’s Estate, Bendall v Cooper and Others

 

Re Cooper’s Estate, Bendall v Cooper and Others

SUCCESSION; Gifts, Wills

CHANCERY DIVISION

COHEN J

30 OCTOBER, 9 NOVEMBER 1945

Wills – Construction – Gift of testator’s residuary estate to his sons in the event of testator and his wife dying “during the present war” – Substitutionary

dispositions if sons should also die “during the present war” – “The present war” – Strict legal meaning displaced by context.

On 17 October 1941, the testator made a codicil to his will. By cl 1, he declared that the provisions therein should be substituted for those in his will in the

event of his wife dying before having obtained beneficial ownership of the estate bequeathed to her by his will, and provided that both he and his wife should

die “during the present war.” Then, after giving certain pecuniary legacies, he gave the whole of his residuary estate to his two sons, ARC, and FSC, or the

survivor of them, absolutely. By cl 2, the testator directed that the provisions therein should be substituted for those in his will and in cl 1 of the codicil in the

event of the death of both his sons, his wife and himself “during the present war.” After making the substitutionary dispositions, the testator continued:

“Finally I declare that the provisions of this codicil to my will are to be operative only during the present war and are intended to cover the eventuality of my

wife and myself or my wife myself and both sons (as the case may be) dying during the continuance of the war.” The testator and his wife both died on 22

July 1943, but the two sons (who were both in the Royal Air Force) were still alive. The court was asked to determine the meaning of the words “during the

present war.” It was contended by the beneficiaries other than the sons that “the present war” would continue until a treaty of peace had been signed because

international law, while recognising the existence of a state of war and a state of peace, knew nothing of an intermediate state which was neither peace nor

war:—

Held – (i) If the words were construed in their strict legal sense, “the present war” would continue until a treaty of peace had been signed; but, in construing a

will, where words could have more than one meaning, regard must be had to the context in which the words were used, rather than to their strict legal

meaning.

Perrin v Morgan applied.

(ii) upon the true construction of the will, the testator’s intention was to provide (by cl 2 of the codicil) for the possibility of the extinction of his whole

family by enemy action, but he wished his sons to have absolute possession of his residuary estate when the risk of their death by enemy action ceased; and

that risk had ceased with the end of hostilities by the final and unconditional surrender of Germany and Japan. The words “during the present war,” as used by

the testator, meant “during the continuance of hostilities,” and “the present war” had come to an end with the effective end of hostilities.

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All ER 1946 Volume 1

Preamble

Notes

In strict legal theory the war which commenced in 1939 has not yet ended, since no Treaty of Peace has been signed, and no statutory provision relating to the

end of the war similar to the Termination of the Present War (Definition) Act, 1918, has been made. Even under that Act, however, it was necessary to

consider the context of the document under construction in order to decide whether the statutory date for the end of the war was applicable, and the court here

similarly has regard to the whole purpose of the codicil in construing the phrase “during the present war.” As that purpose is fulfilled at the termination of

hostilities the phrase is so construed.

As to General Principles of Construction, see Halsbury, Hailsham Edn, Vol 34, pp 187–197, paras 204–251; and for Cases, see Digest, Vol 44, pp

530–532, Nos 3472–3488, and pp 536–539, Nos 3528–3560.]

As to a Legal State of War, see Halsbury, Hailsham Edn, Vol 6, pp 523–525, paras 648–650; and for Cases, see Digest, Vol 11, pp 544, 545, Nos

480–488, and Supplement.

Cases referred to in judgment

Janson v Driefontein Consolidated Mines Ltd [1902] AC 484, 11 Digest 544, 485, 71 LJKB 857, 87 LT 372.

Kotzias v Tyser [1920] 2 KB 69, Digest Supp, 89 LJKB 529, 122 LT 795.

Perrin v Morgan [1943] 1 All ER 187, [1943] AC 399, 112 LJCh 81, 168 LT 177.

Adjourned Summons

Adjourned Summons to determine the meaning of the words “during the present war” as used by the testator in the second codicil to his will. The facts and

the relevant provisions of the will are fully set out in the judgment.

A C Nesbitt and B A Bicknell for the plaintiff.

John Pennycuick for the testator’s two sons.

Sir Norman Touche and W F Waite for the defendants other than the testator’s two sons.

Cur adv vult

9 November 1945. The following judgment was delivered.

COHEN J. This summons raises a question as to the disposition of the residuary estate of Arthur Stewart Cooper, who died on 22 July 1943. He made a will

and two codicils, but the only portions of his testamentary dispositions which are material to the question before me are those to be found in the second codicil

dated 17 October 1941. By cl 1 thereof he directed that, in the event of his death and the death of his wife before she should have obtained beneficial

ownership of such of his estate as was bequeathed to her absolutely by his said will, or should have received the first of the quarterly payments directed to be

paid to her by para 4(2)(a) of his said will, or any part thereof, and provided that both such therein mentioned deaths should occur “during the present war,”

the following provisions should have effect in substitution for those contained in his said will. Then he bequeathed certain legacies including legacies of

£1,000 each to the defendant Ethel May Flatt (in the codicil called Ethel Flatt) and the defendant Stephanie Mary Rathbone, and a legacy of £500 to Florence

Jessie Fowler. Then he gave, divised and bequeathed all the residue of his real and personal estate unto and equally between his two sons, Alan Richard

Cooper and Frank Stewart Cooper, or the survivor of them, absolutely. By cl 2 of the codicil he directed that in the event of the death of both of his said sons,

his wife and himself “during the present war“—I stress those words—the following provisions should have effect in substitution for those contained in his said

will and thereinbefore contained. The testator then bequeathed the following pecuniary legacies, viz, to the defendant Stephanie Mary Rathbone, £5,000; to

the defendant Florence Jessie Fowler, £3,000; to the Royal Air Force Benevolent Fund, of which Lord Riverdale, a defendant in this action, is the chairman of

the council, £2,000; to the defendants Florence Driver and Emily Clarke (subject as therein mentioned) £250 each, and to the plaintiff £100. He gave his

furniture and personal effects to be equally divided between the defendant Stephanie Mary Rathbone and the defendant Ethel Flatt. He gave the whole of the

residue of his estate to the defendant Ethel Flatt absolutely. Then the testator continued as follows:

‘Finally, I declare that the provisions of this second codicil to my will are to be operative only during the present war and are intended to cover the

eventuality of my wife and myself or my wife myself and both sons (as the case may be) dying during the continuance of the war And in all other

respects I confirm my said will dated June 11, 1937, and my first codicil thereto dated Feb. 10, 1941.’

The testator died on 22 July 1943, and his wife died about 1 1/2 hours after the 􀂭 29􀀉 testator. The two sons were both in the Royal Air Force, but both

are, happily, still alive.

The dispositions that I have read give rise to obvious difficulties, and on 8 November 1943, a summons was issued raising the following, among other,

questions:

‘1. Whether upon the true construction of the said will and codicils the executors of the testator ought (a) to treat the dispositions made by cl. 1 of

the second codicil as final and effectual dispositions under which the beneficiaries therein named have now acquired indefeasibly vested interests or (b)

to treat the said dispositions as liable to be displaced or superseded by virtue of cl. 2 of the said second codicil in some and what event and if so that the

meaning of the expression “during the present war” may, if necessary, be determined and further directions given. 2. If it be determined that the

dispositions made by the said cl. 1 of the second codicil are liable to be so displaced or superseded whether the executors ought nevertheless (a) to pay

the pecuniary legacies bequeathed by the said cl. 1 to the several pecuniary legatees therein named and in particular the legacy of £50 bequeathed to the

plaintiff and (b) to pay the rents profits and income as from the death of the testator of the residuary estate of the testator to the defendants Alan Richard

Cooper and Frank Stewart Cooper in equal shares until such dispositions are displaced or how otherwise should they deal with the estate.’

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Preamble

On 16 February 1944, Simonds J made the following order:

‘This court doth declare that upon the true construction of the testator’s will and codicils the executors ought to treat the dispositions made by cl. 1

of the second codicil as liable to be displaced or superseded by virtue of cl, 2 of the said second codicil. And the question of the meaning of the

expression “during the present war” is to stand over with liberty to apply. And this court doth declare that the executors ought to pay the pecuniary

legacies bequeathed by the said cl. 1 to the several pecuniary legatees therein named and in particular the legacy of £50 bequeathed to the plaintiff and

to pay the rents profits and income as from the death of the testator of the residuary estate of the testator to the defendants Alan Richard Cooper and

Frank Stewart Cooper in equal shares until such dispositions are displaced.’

From this order there was an appeal to the Court of Appeal, but, as it was thought that the matters at issue might be more readily disposed of when “the present

war,” whatever that expression might mean, was ended, the appeal stood over.

Hostilities between this country and her Allies, on the one hand, and Germany and her Allies, including Japan, on the other, being now at an end, the

summons was restored before me in order to determine the question which Simonds J directed to stand over, viz, the meaning of the expression “during the

present war.” In deciding this point, I have no statutory guidance, for the Validation of War-time Leases Act, 1944, s 2(2), applies only to tenancy

agreements, and there has been no legislation corresponding to the Termination of the Present War (Definition) Act, 1918. I should add that such legislation

would probably not carry the matter further, as under the 1918 Act it was still necessary to look at the context of the particular instrument to see whether the

date fixed by Proclamation under the statute was applicable thereto.

Counsel for the defendants other than the sons says that I am bound by principle to hold that “the present war” is still continuing. His argument may be

summarised as follows: the law recognises the existence of a state of war, but “it knows nothing of an intermediate state which is neither the one thing nor the

other—neither peace, nor war”: see Janson v Driefontein Consolidated Mines Ltd, per Lord MacNaghten ([1902] AC 484, at p 497). This country must,

therefore, be at peace or at war. It is not at peace, for “the general rule of international law is that as between civilised Powers who have been at war, peace is

not concluded until a treaty of peace is finally binding upon the belligerents,” and that such is not reached “until ratifications of the treaty of peace have been

exchanged between them”: see Kotzias v Tyser, per Roche J ([1920] 2 KB 69, at p 77). It is admitted that no treaty of peace has been signed, much less

concluded, in the present war; accordingly, “the present war” still continues.

I agree that, if I construed the words “the present war” in their strict legal sense, I should be forced to the conclusion to which counsel for the defendants

other than the sons seeks to drive me. But the court is not bound, in construing a will, to give to each word its strict legal meaning. The principles to be

applied are conveniently stated in a passage from the speech of Viscount Simon LC, when considering the meaning of the word “money” in Perrin 􀂭 30􀀉 v

Morgan. Viscount Simon LC said ([1943] 1 All ER 187, at p 193):

‘Notwithstanding this long tradition I would urge the House to reject the view that, in construing a will, the court must start with a presumption in

favour of a particular narrower meaning of the word “money” (though not indeed its narrowest meaning) and that in the absence of contradictory context

the court is bound to apply this narrower meaning, even though the inference is that this is not what the testator really meant by the term. As I have

already said, the word “money” has more than one meaning, and it is in my opinion a mistake to pick out one interpretation of the word and to call it the

“legal” meaning or the “strict legal” meaning, as though it had some superior right to prevail over another equally usual and not illegitimate meaning.

The context in which the word is used is, of course, a main guide to its interpretation, but it is one thing to say that the word must be treated as having

one particular meaning unless the context overrules that interpretation in favour of another; it is another thing to say that “money” since it is a word of

several possible meanings must be construed in a will in accordance with what appears to be its meaning in that document, without any presumption that

it bears one meaning rather than another.’

Those observations, in my view, apply to the words “the present war” in Mr Cooper’s will. When a person refers to “the end of the present war,” he may

mean the date on which, in accordance with strict legal principles, the war is brought to an end by ratification of a treaty of peace; but the ordinary man would,

I think, be much more likely to have in mind the effective end of hostilities.

I am, of course, not dealing with words used in casual conversation, but with words in a will which appears to have been drafted under competent legal

advice. None the less, I think that, having regard to the objects of the provisions under consideration and to the surrounding circumstances, the testator had in

mind not the conclusion of a treaty of peace but the effective end of hostilities between the United Kingdom and her Allies, on the one hand, and Germany and

her Allies on the other. What was the object of cl 2 of the second codicil? Plainly, as I read the codicil, to provide for the possibility of the extinction of his

family from enemy action, and to give directions as to the distribution of his property if that event occurred. This seems to me to be plain from the concluding

words of cl 2 where the testator says:

‘Finally I declare that the provisions of this second codicil to my will are to be operative only during the present war and are intended to cover the

eventuality of my wife and myself or my wife myself and both sons (as the case may be) dying during the continuance of the war.’

The risk of this event occurring ceases with the end of hostilities, not, of course, by mere armistice, but by final and unconditional surrender. It seems to me

equally plain that the testator desired his sons to become absolute masters of his residue when the risk of their extinction by enemy action ceased. The last

thing he intended was that, on their return to civil life, their enjoyment of the property should be indefinitely postponed; yet it is clear that this may well

happen if I attribute to the words “during the present war” their strict legal meaning. But it may be said that the testator would not necessarily have realised

this possibility when he made his will. It is true that in Oct 1941, the United States of America and Japan were still neutral, but the war had already reached

such dimensions and was raging over so vast an area that I think the possibility of prolonged negotiations after the permanent conclusion of hostilities before a

peace treaty could be ratified must have been present to the mind of any reasonable man.

On the whole I think, applying the principle laid down by Viscount Simon LC, in Perrin v Morgan that I must come to the conclusion that “during the

present war” in this will means “during the continuance of hostilities,” and that “the present war” had come to an end with the effective end of hostilities.

Some argument was addressed to me on the question of whether “the present war” meant only the war with Germany and such other Powers as were enemies

of the United Kingdom at the date of the testator’s will, or whether it embraced the war with Japan. Having reached the conclusion that the material factor is

the effective end of hostilities, I am spared a decision on this further point, since there can, to my mind, be no doubt that unconditional surrender, unlike an

armistice, puts a final end to hostilities, and both Germany and Japan have signed documents of unconditional surrender.

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Preamble

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Accordingly, I propose to declare that the residuary estate is now divisible between the first two defendants.

Declaration accordingly.

Solicitors: Preston, Lane-Claypon & O’Kelly agents for Evershed & Tomkinson, Birmingham (for the plaintiff and the first five defendants); Charles Russell

&Co (for the sixth defendant).

F Guttman Esq Barrister.

[1946] 1 All ER 32