Re Jackson, Day v Atkin

 

Re Jackson, Day v Atkin

SUCCESSION; Gifts, Wills

CHANCERY DIVISION

VAISEY J

24 JANUARY 1946

Wills – Construction – Gift of £50 a year – “This sum to be applied” for donee’s “maintenance and schooling until she attains the age of 21” – “To be

derived from interest of my shares in War Loan 1917” – Duration of annuity.

By his will, the testator gave to his adopted daughter, E “a sum of £50 sterling per annum this sum to be applied for her maintenance and schooling until she

attains the age of 21 years and to be derived from interest of my shares in (War Loan 1917).” He then gave the remainder of his personal estate, including his

shares in “War Loan 1917” and other shares, to A B and directed her, out of the proceeds of those shares, to pay 10s weekly to his mother “for the rest of my

mother’s life.” From the testator’s death until E attained the age of 21, £50 a year had been applied for her maintenance and schooling, but, since she became

21, no payment had been made in respect of the annual sum. It was contended by the personal representatives of A B that, on the true construction of the will,

the annual sum ceased to be payable after E attained the age of 21. On behalf of E, it was contended that, since the testator had stated that the sum was to be

derived from the interest of his shares in “War Loan 1917,” the gift of £50 a year must be regarded as a gift of the income of a portion of that fund, and it was,

therefore, a perpetual annuity:—

Held – (i) Upon the true construction of the will, the gift to E of £50 a year was an absolute gift in the first instance and the words that followed, “to be applied

for her maintenance and schooling until she attains the age of 21” were merely a direction as to how the money should be applied during E’s minority.

(ii) the fact that the testator had stated that the sum should be derived from the interest of his shares in “War Loan 1917” could not be regarded as an

indication that the testator had intended to make a gift of the income of a portion of that fund. The gift could not, therefore, be construed as a perpetual

annuity.

(iii) E was entitled to the sum of £50 per annum during her life.

Notes

Annuities are frequently given for maintenance and education, and these may, on a true construction of the will, cease when the annuitant reaches majority. In

this case, however, it is held, in view of all the circumstances, that the testator did not intend to leave the annuitant unprovided for, and it is accordingly

construed as a gift for life.

As to Duration of Annuity, see Halsbury, Hailsham Edn, Vol 28, pp 195–199, paras 358–364; and for Cases, see Digest, Vol 39, pp 135–139, Nos

292–336, and pp 140, 141, Nos 345–352.

Cases referred to in judgment

Bent v Cullen (1871), 6 Ch App 235, 39 Digest 137, 308, 40 LJCh 250.

Re Morgan, Morgan v Morgan [1893] 3 Ch 222, 39 Digest 137, 310, 62 LJCh 789, 69 LT 407.

Adjourned Summons

Adjourned Summons to determine a question arising under the will of Alfred Reed Jackson. The facts and the relevant provisions of the will are fully set out

in the judgment.

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J V Nesbitt for the executor.

J F Bowyer for Mrs Atkin.

Hon Denys B Buckley for the Midland Bank Ltd the personal representative of Mrs Bagley.

24 January 1946. The following judgment was delivered.

VAISEY J. In this case I have to decide what is, according to the true construction of the will of Alfred Reed Jackson, the quality of an annuity of £50, or, to

speak with greater precision, the quality of a bequest of a sum of £50 sterling per annum. The testator was not a draftsman but a master mariner and I have

before me the original will which he signed on 9 September 1917. It consists partly of print and partly of manuscript in the testator’s own handwriting. He

first revokes all previous wills and appoints one Day, and inspector of police, and Mrs Bagley, whom he describes as one who was known as his wife, to be

executors of the will. Then he proceeds to add what all testators do who make use of printed forms; he directs that his debts, funeral and testamentary

expenses shall be paid.

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There then follows in print these six words: “I give devise and bequeath unto.” At that point the testator resumes his pen and he inserts these words:

‘… my adopted daughter Eveline Mary Bemross to be hereafter known as Eveline Mary Jackson a sum of £50 sterling per annum this sum to be

applied for her maintenance and schooling until she attains the age of 21 years and to be derived from interest of my shares in (War Loan 1917) to

Annie Mary Bagley the remainder of my money namely, cash in bank (L.C. & Midland, Hull) shares in War Loan 1917, shares in Selfridges & Co.,

shares in General Electric Light Company and shares in Eagle Oil Transport Company. Out of the proceeds of these shares Annie Mary Bagley must

pay to my mother Hannah Jackson the sum of 10s. weekly for the rest of my mother’s life.’

Then he gives £500 to his brother on the death of Mrs Bagley. Then he appoints Mrs Bagley to be the guardian of his adopted daughter and says that the child

is to reside with her:

‘… except under exceptional circumstances arising that may render this course derogatory to the child.’

Finally he gives his household furniture to Mrs Bagley. There is a proper attestation clause and two witnesses, and the will, which, as I have said, is dated 9

September 1917, six weeks or so before the testator’s death on 31 October 1917, was apparently admitted to probate on 29 May 1918.

The testator, apart from his very proper wish to provide for his mother and to give some substantial bequest to his brother, and evidently two persons in

the world for whom he entertained a feeling of affection. One was, if I may so describe her, his adopted wife, and the other his adopted daughter. I can draw

no sort of conclusion as to which of those two ladies stood first in his regard or as to whether he wished to benefit one to the prejudice of the other, and I have

simply to look at the words which he has used. It may be said that when he wished to limit the gift to a person for life he knew how to do it because there was

the direction that Mrs Bagley should pay to the testator’s mother 10s weekly for the rest of her life. That, I think, is an indication that he did know how to

create a life interest, and it stands against other considerations in favour of the view, which has been submitted to me by Mrs Bagley’s personal representative,

that this annual sum of £50 ceased to be payable when this young lady, who is now Mrs Atkin, attained the age of 21 years, on 29 August 1938. It is not

disputed that the £50 a year was applied for her maintenance and schooling as from the testator’s death until that date; but, since the attainment by Mrs Atkin

of her majority, nothing has been paid in respect of the annual sum. The question now arises whether that sum continued thereafter or whether it ceased

altogether on the attainment by Mrs Atkin of her majority.

Now it is to be observed that this is a gift, devise and bequest to Mrs Atkin of £50 sterling per annum, and at that point there is either a full stop, or, at any

rate, some kind of a period mark, which prohibits me from omitting to make some pause at that particular juncture. Then he says:

‘… this sum to be applied for her maintenance and schooling until she attains the age of 21 years and to be derived from [etc.]’

If this had been a gift of £50 sterling per annum to be applied for her maintenance and schooling until she attained the age of 21 years, I think I should

have come to the conclusion that, after she attained the age of 21 years, there was nothing more in the gift, that the gift would have been satisfied by the

payment being made down to, but not beyond, that date. But here I find an absolute gift to the lady of £50 sterling per annum; and the separated direction that

the sum is “to be applied for her maintenance and schooling until she attains the age of 21” is, in my judgment, merely a direction to the executors of Mrs

Bagley that, while the lady is under the disadvantage of minority and therefore unable to give a receipt for that which is given to her, the £50 is not to be

accumulated or held up or paid to her notwithstanding infancy, but is to be applied for her maintenance and schooling until she attains the age of 21 and so

becomes entitled to give a receipt for that which she has been given.

In my opinion, the view that this was a gift until 21 and not beyond is a view which the words of the will do not warrant. I pay very little attention to

questions of possible caprice or anything of that kind. At the same time, I do not think one ought altogether to overlook the fact that the testator must 􀂭 328􀀉

be assumed to have taken the view that he had towards the adopted daughter some, if not all, of the obligations of parenthood. I venture to think it is more

likely that he would have wished to make some provision for her for life rather than that he should have contemplated that, as soon as she attained her

majority, she should be, so far as he was concerned, absolutely without resources.

It was argued by counsel for Mrs Atkin that this was not merely a life annuity, but an annuity which was perpetual. On that he cited Bent v Cullen, and

Re Morgan, Morgan v Morgan. He invited me to regard this as a case in which the reference to the “War Loan 1917” must be treated as a definite gift of the

income of a part of the fund, and not merely as an income charged upon the fund. I am not quite certain, however, that it is either of those things. I incline to

the view that the words “to be derived from interest of my shares in War Loan” are nothing more than a direction to his executors as to a good way, or possibly

the best way (or, it may be, in the testator’s opinion the most appropriate way) of providing for this £50. I think the principle is very well settled that, if this

had been a gift of the income of part of a fund, it would have been perpetual: if it was a gift of an annuity charged on a fund, it would, prima facie, be for life:

I am not quite sure, however, how far that principle is applicable to the present case.

I base my judgment upon the fact that he has given £50 sterling a year to his adopted daughter and has superadded to that absolute gift a mere direction

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that, until she was in a position to give a receipt for this annual sum, it should be utilised for her benefit in the way of maintenance and eduction. In the result,

therefore, I come to the conclusion, and will declare, that, upon the true construction of the will, the sum of £50 per annum thereby bequeathed to the

defendant Mrs Atkin continues to be payable to her during her life and that the arrears from the time when she attained her majority must be raised and paid.

The costs of all parties as between solicitor and client will be paid out of the fund in the trustees’ hands.

Declaration accordingly.

Solicitors: Pritchard, Sons, Partington & Holland (for all parties other than the Midland Bank Ltd); Bell, Brodrick & Gray (for the Midland Bank Ltd).

B Ashkenazi Esq Barrister.

[1946] 1 All ER 329