Re Foster, Coomber v Governors and Guardians of the Hospital for the Maintenance and Education of Exposed and Deserted Young Children and Others

Re Foster, Coomber v Governors and Guardians of the Hospital for the Maintenance and Education of Exposed and Deserted Young Children and Others

SUCCESSION; Wills

CHANCERY DIVISION

ROMER J

23 NOVEMBER, 21 DECEMBER 1945

Wills – Construction – “The residue of my estate to be divided equally” between testator’s brother and sisters “during their lifetime” – “After their death to

be evenly distributed” between testator’s nephews and nieces – Implied gift to survivors or survivor of first takers – Second takers to take per capita on death

of last survivor of first takers.

By his will, the testator, after making certain pecuniary and specific bequests, gave: “The residue of my estate to be divided equally between my brother and

my four sisters during their lifetime but after their death to be evenly distributed between my nephews and nieces.” The testator died a widower without

parent or issue. The brother and the four sisters mentioned in the will were his only brother and sisters. They were all five living at his death, but the brother

had died subsequently. There were seven nephews and nieces. The question was whether, on the brother’s death, the one-fifth share of income which he had

enjoyed during his life passed to the sisters or to the nephews and nieces. It was contended on behalf of the nephews and nieces that, by reason of the rule

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applied in Re Hutchinson’s Trusts, the brother’s share passed to the nephews and nieces immediately on his death:—

Held – (i) Upon the true construction of the will, the testator intended his residuary estate to pass as an entirety, and not in successive shares, to the nephews

and nieces per capita, after the brother and all the sisters had died.

(ii) the application of the rule in Re Hutchinson’s Trusts was not imperative where, on the true construction of the will in question, the gift to the second

takers was per capita and not per stirpes. The rule could, moreover, be displaced by a sufficiently clear indication in the will of the testator’s intention that the

estate or fund in question, when passing to the second takers, was to pass to them as one entirety or mass. The rule, therefore, did not imperatively apply to

the gift in question.

(iii) the income of the testator’s residuary estate was divisible equally between the testator’s four sisters, and the survivors or survivor of them for the

time being. On the death of the last survivor, the whole capital of the estate would be distributable amongst the testator’s nephews and nieces.

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Notes

The court in this case refuses to apply the rule adopted in Re Hutchinson’s Trusts, where a gift over to children after the death of their parents “share and share

alike” was construed as a gift after the respective deaths of the parents to the respective children. This involves reading in the word “respective” twice, and it

is held that where the words of the will permit, such a gift is to be read as a gift to the children per capita and not per stirpes after the death of the last survivor

of the parents.

As to Implication of Gift to Survivors, see Halsbury, Hailsham Edn, Vol 44, pp 431, 432, para 478; and for Cases, see Digest, Vol 44, pp 1212–1215, Nos

10480–10506.

Cases referred to in judgment

Abrey v Newman (1853), 16 Beav 431, 44 Digest 995, 8533, 22 LJCh 627.

Re Hutchinson’s Trusts (1882), 21 ChD 811, 44 Digest 1003, 8602, 51 LJCh 924, 47 LT 573.

Re Browne’s Will Trusts, Landon v Brown [1915] 1 Ch 690, 44 Digest 1215, 10506, 84 LJCh 623, 113 LT 39.

Re Errington, Gibbs v Lassam [1927] 1 Ch 421, 44 Digest 997, 8544, 96 LJCh 345, 136 LT 764.

Re Telfair, Garrioch v Barclay (1902), 86 LT 496, 44 Digest 1215, 10503.

Re Ragdale, Public Trustee v Tuffill [1934] Ch 352, Digest Supp, 103 LJCh 181, 150 LT 459.

Re Riall, Westminster Bank Ltd v Harrison [1939] 3 All ER 657, Digest Supp.

Adjourned Summons

Adjourned Summons to determine a question arising under the will of Thomas Oliphant Foster. The facts and the relevant clause of the will are fully set out in

the judgment.

G D Johnston for the trustee.

P J Sykes for the testator’s sisters.

C W Turner for the nephews and nieces (children of the testator’s sisters) and the personal representative of a deceased nephew.

C A J Bonner for the daughter of the deceased brother.

Cur adv vult

21 December 1945. The following judgment was delivered.

ROMER J. By his will dated 14 October 1936, the testator, Thomas Oliphant Foster, devised and bequeathed all his real and personal estate to his executors

therein named, subject to the payment of his funeral and testamentary expenses and debts. After making certain pecuniary and specific bequests, the testator

expressed himself as follows:

‘The residue of my estate to be divided equally between my brother and my four sisters during their lifetime but after their death to be evenly

distributed between my nephews and nieces.’

The testator died on 12 March 1942. He was a widower without parent or issue and he left him surviving one brother and four sisters. The originating

summons which is now before me was taken out on 9 September 1942, and raised certain questions of construction, most of which were decided in December

1942, by Simonds J, as he then was. Question 1(c) of the summons, which is the question which I have now to decide, is in the following terms:

‘Whether the income of the residuary estate is divisible equally between the testator’s brother and four sisters and the survivors and survivor of them

for the time being and on the death of the last survivor the whole capital is distributable amongst the testator’s nephews and nieces or whether as and

when each brother and sister of the testator dies the capital producing his or her share of the income becomes distributable amongst his or her children or

alternatively amongst all the testator’s nephews and nieces or whether on such death the income previously payable to such deceased brother or sister

becomes undisposed of until the death of the last survivor of the brother and sisters or how otherwise the plaintiff ought to deal with the income and

capital of the said residuary estate.’

At the time when the matter was before Lord Simonds, the testator’s brother and four sisters were all alive and the order which he made was confined, so

far as the above question is concerned, to a declaration that the income of the residuary estate of the testator was divisible equally between the testator’s

brother and four sisters during their joint lives. The rest of the question was directed to stand over, with liberty to apply. Since this order was made, the

testator’s brother, Frederick Boswall Foster, has died, his death occurring on 17 July 1943. The summons was accordingly restored for argument and decision

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on question 1(c). The testator had seven nephews and nieces who were represented before me, as also were the testator’s next of kin and other interested

parties.

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Unaided by authority, I should come to the conclusion that, on the true construction of the testator’s residuary disposition which I have read, the gift to

the nephews and nieces was not intended to take effect until the death of the survivor of the testator’s brother and four sisters, and that, until that event

occurred, the brother and sisters for the time being alive would share the income equally between them and that the survivor would take the whole income for

the remainder of his or her life. The reasons that would lead me to this conclusion are as follows. It is clear, in the first place, that, as each brother and sister

dies, his or her interest in the estate ceases. It is equally clear that the interest of all of them does not cease with the death of one. Accordingly, I read “during

their lifetime” as meaning “during their respective lives.” Having created these interests, the testator then turns his attention to the passing of a particular

subject-matter at a particular point of time. What, then, is the subject-matter and what is the point of time? The subject-matter would appear to be that which

the testator has already described at the beginning of the disposition, viz, “the residue of my estate.” That is an expression which, if taken by itself, can mean

only one thing, viz, the estate as a whole. Then what is the point of time at which the estate as a whole is to go to the nephews and nieces? It is expressed to

be after the death of the brother and sisters. I should have thought that it would be difficult to say that that point of time had been reached while one or more

of the brother and sisters were still alive, and that it could not be said to have arrived until all of them were dead. It is suggested, however, that the prima facie

conclusions which I have indicated, both as to the subject-matter of the ultimate gift and as to the time when it was to take effect, are erroneous having regard

to the authorities relating to this kind of disposition which are to be found in the reports. These authorities it is argued, demonstrate that, as each brother and

sister dies, the aliquot share of income set free by his or her death becomes payable thenceforth to the nephews and nieces who, but for the still subsisting

income interests of such of the other first takers as survive, would immediately become entitled to payment of an aliquot share of capital. In other words, it is

said that the gift to the nephews and nieces which follows the disposition in favour of the brother and sisters should read in some such sense as “but after their

respective deaths their respective shares of or interests in the residue of my estate are to be evenly distributed between my nephews and nieces.”

I will refer now to the authorities, some of which are not easily reconcilable. Abrey v Newman was a decision of Sir John Romilly MR. In that case:

‘The testator, after having given certain personal estate to his wife for life, proceeded as follows: “All the above-named property to be equally

divided between Benjamin James and his wife Ann James, and Charles Abrey and his wife, for the period of their natural lives, after which, to be

equally divided between their children; that is to say, the children of Benjamin James and Charles Abrey above-mentioned.“’

Sir John Romilly’s decision involved the view that the words “after which” meant “after their respective deaths.” Benjamin James and Ann his wife had both

died, leaving children; the wife of Charles Abrey was also dead leaving children surviving her by Charles Abrey, who was still alive. The judge, after

observing, first, that the share given to Benjamin and Ann was given, in the first instance, to the parent and the gift afterwards was to take effect on the death

of that parent, and, secondly, that it was not possible to read “their children” as “their respective children” because of the subsequent words “that is to say, the

children of Benjamin James and Charles Abrey,” held that upon the death of Benjamin James and his wife their share was divisible per capita amongst the

children of Benjamin James and of Charles Abrey.

Re Hutchinson’s Trusts was a decision of Kay J. In that case:

‘A testatrix bequeathed personalty in trust for A.B. for life, and after his decease for his issue, and on failure of his issue to F.H.S. and R.S. share and

share alike, “and after the decease of the said F.H.S. and R.S. to their children share and share alike, and to their heirs for ever.” F.H.S. died without

having had issue, R.S. survived him and died leaving children, and A.B., who survived them both, died without issue.’

The judge found himself constrained by the authorities, and contrary to the inclination of his own mind, to construe the bequest as “a gift after the respective

deaths of FHS and RS to their respective children,” with the result that, as there had been:

􀂭 335􀀉

‘… an absolute gift to each of them in the first instance only cut down in favour of his children, in the events which happened the fund was divisible

in moieties between the representatives of F.H.S., and the children of R.S.’

Kay J after reviewing the relevant cases which had been decided down to that time, expressed himself as follows, (21 Ch D 811, at p 816):

‘The balance of authority seems to me, therefore, to show that there has been laid down what I must consider rather an artificial rule, a rule which I

suppose has considerable advantages, if both the tenants for life, or the persons to whom the interest was first given have children; but in this case one of

them has died before the other without issue; and the question is, under those circumstances, how the gift is to be construed. I think I am bound by

authority to say that the words “after the decease of the said [F.H.S.] and his brother [H.S.],” mean after their respective deaths, or after the decease of

each of them, and that there is a disposition of the share of each which was an absolute interest in the first instance upon his death. Now what is the

disposition? It is to their children. Well, following the decisions, and considerably assisted, I must say, by an argument which Mr. Hastings used, and

which I adopt, that in that place this must mean their respective children, because there could not possibly be any child who could say I am the child of

both, I am bound to read “after the death” as meaning “after the death of each,” and “to their children” as “to their respective children.” I admit the

force of Mr. Hastings’s argument on that part of the gift; and I think these authorities have laid down a rule of construction which I am bound to follow;

therefore, I so decide.’

The judge arrived at this decision notwithstanding that, as he pointed out (21 Ch D 811, at p 814), it involved “the addition at least of the word ‘respective,’

once, if not more than once,” to the language which the testatrix had actually used.

In Re Browne’s Will Trusts Sargant J had to consider a disposition by a testator of an estate to trustees:

‘… “upon trust to pay the income thereof to each of such of my said six nieces as shall be living … at the time of” the death of “the survivor of my

said wife and son, for and during the respective lives of my said nieces, and, from and after the decease of my said six nieces, to stand possessed of my

said trust estate and the income thereof,” upon trust for such children of the testator’s son as should be living at the son’s death. Three only of the six

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nieces survived the testator’s widow and son, and these three were all living. The son left one child him surviving: Held, that as each niece died, her

share of the income did not belong to her legal personal representative until the death of the last surviving niece, and did not go over to the surviving

nieces or niece, and that there was not an intestacy as to such share of income until the death of the last surviving niece; but that, as each niece died, her

share of income went immediately to the remainderman, the son’s child.’

Sargant J, after pointing out that four possible constructions had been argued before him, said that the real difficulty lay between two of them, viz, whether the

income went equally between the survivors or survivor of the nieces for the time being or whether on the death of each niece the ultimate gift to the

remainderman took effect in respect of her share. The judge, after referring to certain authorities, including Re Hutchinson’s Trusts, came to the conclusion

that the latter of these two constructions was the right one. He read the words “from and after the decease of my said six nieces” as meaning “from and after

the decease of my said six nieces respectively” or “from and after the deceases of my said six nieces.” He was assisted to this interpretation by the precision of

the preceding words “during the respective lives of my said nieces” and by the rule of construction ([1915] 1 Ch 690, at p 695):

‘… that such words as “from and after the decease” are proper words of remainder and are often merely equivalent to “subject to” or “on the cesser

of” the preceding interests.’

It is to be observed that in this case the donee in remainder was not the child of any of the tenants for life who took preceding interests in income.

In Re Errington:

‘The testator gave the income of the one-third part of his residuary estate to his daughter E. for her own absolute use and benefit, and from and after

her decease such one-third part was to be divisible between his daughters J.G. and S.L., or “if dead between their issue share and share alike.” J.G. died

in the lifetime of E., leaving issue; Held, that on the death of E. the issue of J.G. took a moiety of the one-third part of the testator’s residuary estate in

equal shares per capita.’

􀂭 336􀀉

In the course of his judgment, Romer J said ([1927] 1 Ch 421, at pp 425, 426):

‘There is a rule of construction referred to by KAY, J., in Re Hutchinson’s Trusts which is so binding that KAY, J., felt, in the case before him,

compelled to give effect to it, although but for the authorities laying down that rule of construction he would have decided differently. The rule, stated

in its simplest way, is this: Where a testator gives the income of his estate to two people, A. and B., for their lives and follows that gift by a direction

that at their death, or at their deaths, or at or after the death or deaths of A. and B. the property is to go to their issue, the court does not construe the gift

as a gift only to take effect on the death of both in favour of the issue of both, but construes it as a gift, to take effect on the death of each, of the share to

the income of which the deceased was entitled, to the issue of the deceased. So that in the simple cases to which I refer, on the death of A. leaving issue,

the issue of A. would take one-half notwithstanding the fact that B. still was living. On the death of B., B.’s issue in the same way would take the share

in which B. had a life interest. Now, it is true that the cases in which that rule has been applied were cases of original gifts. But I see no reason at all

why the rule should not equally apply to cases of substitutional gifts. The rule admittedly applies, as was laid down by KAY, J., where there is a gift to

A. and B., not expressly for life, but a gift to A. and B., followed by an original gift in favour of the issue of A. and B. expressed to take effect in the

event of the deaths or on the deaths of A. and B. In such a case KAY, J., held that on the death of one his issue took his share. I myself see no

difference between that case and a gift to A. and B. with a substitutional gift in favour of their issue to take effect in the event of their deaths. I think in

such a case the court ought to construe the gift as a gift to A. and B., with a substitutional gift to A.’s share in favour of his issue, and B.’s share in

favour of his issue. It is a rule which appears to me to be one that has this supreme merit, a merit that not all rules of construction possess, that in the

vast majority of cases it gives effect to the intention of the testator.’

I must now refer to three cases in which a different view was taken as to the effect of gifts of a similar character to those which were before the court in

the cases I have cited. The first is Re Telfair, a decision of Farwell J. There a testator gave the income of his residuary estate to E W G and H H G “in equal

parts—that is to say, that they shall each receive the half amount of the interest during their natural lives.” After “their deaths” the income was given to one of

his wife’s nieces for life and after her death to another of his wife’s nieces for life; and after the death of the latter niece the corpus was given to a charitable

institution. E W G died leaving the testator’s widow her surviving. The widow then died and the question for the court was whether H H G was entitled

during her life to the whole of the income of the residuary estate. Farwell J decided that she was. In his view, different generations were provided for by the

will in due order and he found that the whole estate was to go over on the death of both E W G and H H G. There was an implied gift to the survivor of them,

he said, and the wife’s nieces took only subject to their interests. The judge thought that the testator intended that the survivor of E W G and H H G should

take the whole income for her life and that the entire interest was given after the deaths of both.

In Re Ragdale:

‘A testator devised and bequeathed the residue of his estate to the Public Trustee upon trust for sale and conversion and to pay one-half of the net

income arising from the fund so created to R. and the other half to T., and “from and after their decease” to pay the principal as well as the income to a

[hospital fund]. R. predeceased the testator. The question arose whether there was an intestacy as regards R.’s share, and if not, whether it was payable,

both capital and income, to the charity or whether R.’s share of income was payable to T. for her life.’

Re Telfair and Re Browne’s Will Trusts were cited to Farwell J before whom the case came, but not, apparently, Re Hutchinson’s Trusts nor Re Errington.

Farwell J after observing that he had to construe the will on the language used and ascertain the intention from that language, expressed himself as follows

([1934] 1 Ch 352, at p 355):

‘I think I can find in the language of the will two possible alternatives: one in favour of the hospital fund to take immediately, the other that the

survivor of the ladies takes the disputed half-share of the income for her life. On the one side if I prefer the hospital fund I have to read “after their

decease” as “after their respective deaths”; on the other I have to read into the will that which is not in the will. In my opinion, on the true interpretation

of the will, the testator did not intend that the hospital fund should take till both ladies were dead, and so I cannot read “after their decease” as “after

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their respective decease.“’

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Looking to all the terms of the will, Farwell J came to the conclusion that the hospital did not take until the death of T, and that T was entitled to the disputed

half-share of the income for her life.

The last case to which I need refer is Re Riall. In that case:

‘The testatrix directed her trustees, after payment of certain legacies, to divide the balance of her residuary estate into two equal parts and to pay the

income from one moiety to one of her two sisters for life, and, after her death, to pay the income of that moiety to that sister’s husband (who, however,

predeceased the testatrix). The income of the other moiety was given to her other sister for life. On the death of the last survivor of the life tenants, the

residuary estate was to be divided among a number of charitable institutions. The trusts of the first moiety having determined on the death of the first

sister, the question arose whether cross-remainders could be implied so as to entitle the surviving life tenant during the remainder of her life to the

income to which the deceased life tenant had been entitled, or whether during this period such income passed to the charitable institutions or passed as

on an intestacy.’

The case was heard by Simonds J and amongst the cases cited to him were Re Telfair and Re Ragdale, but not, apparently, Re Hutchinson’s Trusts, Re

Browne’s Will Trusts, nor Re Errington. In the view of Simonds J the position was governed by the decision of Farwell J, in Re Ragdale. He came to the

conclusion that the testatrix’s intention was that the tenants for life should receive the whole income from the residuary estate until the death of the last

survivor of them and that only then should the charitable institutions mentioned in the will become entitled to their shares in the capital of the residue. He

accordingly held that the released income ought to be paid to the surviving life tenant during the remainder of her life.

In the present case, the first takers are the only brother and sisters that the testator had and it accordingly follows that the second takers, the testator’s

nephews and nieces, are necessarily the issue of the first. Certain admissions were rightly made before me during the course of the argument. In the first

place, it was admitted that there was no intestacy arising by reason of the death of the testator’s brother, whatever else might be the true destination of the

income which he had enjoyed or of the share of the estate which produced it. Secondly, it was conceded that whatever benefits the nephews and nieces take

they take as a class per capita, and not under a stirpital distribution; and, thirdly, it was admitted that the nephews and nieces must, in any event, await the

deaths of all the testator’s sisters before becoming entitled to a payment of capital. Accordingly, the alternative constructions between which I must choose

are, on the one hand, that the testator’s sisters take between them the one-fifth share of income which their brother enjoyed during his lifetime and, on the

other hand, that such share of income passed on the brother’s death immediately to the nephews and nieces. As I have indicated earlier, my inclination is in

favour of the former construction unless I am compelled, by reason of what I may call the rule in Re Hutchinson’s Trusts, to adopt the latter.

Upon a consideration of the cases to which I have referred, I have come to the following conclusions as to the proper application of this rule: (i) it applies

in general where the gift to the second takers, being issue of the first takers, can fairly be construed as a gift to them per stirpes; (ii) its application is not

imperative where the second takers are either not issue of the first takers at all or, being such issue, the gift in their favour is, on construction, a gift to them per

capita; and (iii) the rule may be displaced by a sufficiently clear indication of intention on the part of the testator, to be gathered from the will as a whole, that

the estate or fund in question, when passing to the second takers, is to pass to them as one entirety or mass. I am aware that there may be some inconsistency

between the second and third qualifications to the rule which I have mentioned and the decisions in such cases as Abrey v Newman and Re Browne’s Will

Trusts. Nevertheless, such qualifications appear to me to be compatible, on the one hand, with the statement of the general rule by Romer J in Re Errington,

and, on the other hand, with the decisions in Re Telfair, Re Ragadale and Re Riall, in none of which was the rule applied. Moreover, a too rigid application of

the rule would in many cases destroy what Romer J recognised as its general merit, viz, that it gives effect to the probable intention of testators. I have earlier

indicated that my own view of the will now before me is that the testator intended his residuary 􀂭 338􀀉 estate to go over as an entirety, and not in successive

shares, to the nephews and nieces at a given time; and it is, moreover, clear that they take per capita and not per stirpes.

In my judgment, accordingly, the case is not one to which the rule imperatively applies and I am free to decide, as I do decide, that the income of the

testator’s residuary estate is divisible equally between the testator’s four sisters, and the survivors or survivor of them for the time being, and on the death of

the last survivor the whole capital of the estate will be distributable amongst the testator’s nephews and nieces; and I will make a declaration accordingly.

Declaration accordingly. Costs as between solicitor and client to be paid out of the estate.

Solicitors: Wetherfield, Baines & Baines (for all parties excepting the personal representative of the deceased nephew); Radcliffes & Co (for the personal

representative of the deceased nephew).

B Ashkenazi Esq Barrister.

[1946] 1 All ER 339