Re Parrott’s Will Trusts, Cox v Parrott

 

Re Parrott’s Will Trusts, Cox v Parrott

SUCCESSION; Gifts, Wills

CHANCERY DIVISION

VAISEY J

18 JANUARY 1946

Wills – Construction – Conditions – Validity – Gift on condition that donee should “by deed poll assume” a different Christian name – Gift over if condition

not fulfilled – Condition void for impossibility – Donee absolutely entitled to gift.

By his will the testator gave his residuary estate, subject to the life interest of his wife, to C, on condition that C should “by deed poll assume” a certain name,

which would involve C changing not merely his surname but his Christian name. There was a gift over in the event of C not complying with this condition:—

Held – (i) The condition was impossible to fulfil, because a Christian name could not be altered by deed poll.

(ii) the condition also failed for uncertainty, because there was no indication as to what the testator meant by “assume.”

(iii) C was absolutely entitled in reversion expectant on the death of the testator’s widow, and was under no obligation to assume any name.

All England Law Reports 1936 - books on screen™

All ER 1946 Volume 1

Preamble

Notes

There is little authority on the point, but it appears to be well established that a Christian name cannot be changed by deed poll. Whether this consists of one

word or several there is strictly only one Christian name, and the name which may now be added on adoption is in a somewhat anomalous position. The

Christian name being given at baptism, and being a matter primarily relating to the church membership of the holder, it can, on the authority of Lord Coke, be

changed at confirmation if the bishop finds good and sufficient reason. The only other method of change is, presumably, by Act of Parliament.

As to Change of Christian Name, see Halsbury, Hailsham Edn, Vol 23, pp 555, 556, para 811; and for Cases, see Digest, Vol 35, p 703, No 30 and p 704,

No 32.

Case referred to in judgment

Re Fry, Reynolds v Denne [1945] 2 All ER 205, [1945] Ch 348, 173 LT 282.

Adjourned Summons

Adjourned Summons to determine certain questions arising under the will of Walter Parrott. The facts and the relevant clauses of the will are fully set out in

the judgment.

E J Heckscher for the plaintiff.

C G A Cowan for the trustee.

E J T Bagshawe for the defendant Mrs Foreman.

R C H Horne for the testator’s daughter.

18 January 1946. The following judgment was delivered.

VAISEY J. I have in this case to ascertain the meaning and effect (if any) of certain conditions imposed, or sought to be imposed, by the will of the testator

Walter Parrott upon the reversionary residuary bequest therein contained in favour of the plaintiff, Tim Harington Spencer Cox.

The will is dated 16 June 1934. By cl 1, the testator appointed General Sir Charles Harington and his (the testator’s) wife, the defendant Mary Louisa

Cotton Parrott, executors and trustees. By cl 2, he made a disposition of certain chattels in favour (in the events which happened) of the plaintiff, whom he

throughout the will describes as “Tim Spencer Cox.” Under cl 8, his residuary estate was to be held in trust (a) to pay out of the income thereof £150 per

annum for the plaintiff’s maintenance, education and benefit during his minority, and (b) subject to such payment, to pay such income “free of duty”

(whatever that may mean) to the testator’s wife during her life.

Cl 9 of the will is as follows:

‘Subject to the life interest of my said wife in the income of my residuary estate and to the payment of the £150 per annum hereinbefore mentioned I

direct my trustees to stand possessed of the capital and income of my residuary estate in trust for the said Tim Spencer Cox if and when he shall attain

the age of 21 years and provided he shall within 6 months from the date of my death or his attaining the age of 21 years by deed poll assume the name of

Walter Tim Spencer Parrott and provided he shall assume take or otherwise use my family crest and coat of arms interspersed with the crest and coat of

arms of the Burgoyne family the baronetage of which was created in 1641 and which became extinct on the death of the tenth and last baronet Sir John

Montagu Burgoyne in 1921.’

The final clause of the will is cl 10, which is in these terms:

‘In the event of the said Tim Spencer Cox not attaining the age of 21 years and (sic) not complying with the conditions of cl. 9 hereof then I direct

my executors and trustees 􀂭 321􀀉 to stand possessed of both the capital and income of my residuary estate in trust for such of the daughters of my

brother G.L. Parrott as shall be living at the death of the said Tim Spencer Cox in equal shares.’

On 19 July 1934, the testator made a condicil to his will which is not material to the questions which now arise. He died on 21 June 1938, and his will

and codicil were on 5 August 1938, duly proved by the widow, the other executor having renounced probate. The plaintiff attained the age of 21 years on 9

August 1945, down to which date the £150 was duly applied for his maintenance, education and benefit.

The first question is whether the plaintiff, in order to establish his title to the testator’s residuary estate, must within six months from his attaining the age

of 21 years, ie, on or before 9 February 1946 “by deed poll assume the name of Walter Tim Spencer Parrott.” What do those words mean? In my judgment,

they express the testator’s intention that the plaintiff should take the name of Walter Tim Spencer Parrott in lieu of and substitution for his present name of

Tim Harington Spencer Cox in a two-fold sense, ie, first that his compound baptismal name of Tim Harington Spencer was to be abandoned in favour of and

replaced by the new compound name of Walter Tim Spencer, and secondly that his surname Cox was to be altered to the surname Parrott. There would be no

difficulty about the second part of the change, but I hold that the first part is impossible. Nobody can alter or part with a Christian name by deed poll. It

would not, in my judgment, be right to attribute to the testator so fantastic and absurd an intention as that the plaintiff should assume the name of Walter Tim

Spencer Parrott as a compound surname either in lieu of or in addition to his patronymic Cox, nor would the court hold that his doing so would comply with

the provision in the will. That is not what the testator meant him to do.

The law in this matter is, I think, accurately summed up in Davidson’s Precedents and Forms in Conveyancing, 3rd Edn, Vol III, Pt I, where dealing with

the subject of provisions requiring a legatee to take the name of a testator, it is said, in the footnote on pp 361, 362:

‘When the legatee is of a different Christian name from the testator, he cannot, of course, part with his own Christian name, nor can he take that of

the testator, except as part of a compound surname consisting of the Christian name and surname of the testator.’

Apart from the impossibility of fulfilling the condition as I interpret it, there are other points of uncertainty about it. What is meant by the word

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All ER 1946 Volume 1

Preamble

“assume”? Nothing is said as to any subsequent user of the assumed name, or as to the duration of any such user, and it may well be that the condition fails on

the ground of uncertainty in addition to its being, as I hold, impossible.

There are only two, or at most three, ways in which a Christian name may be legally changed: (i) it must be assumed by the omnicompetence of an Act

of Parliament, as, eg, the Baines Name Act, 1907; (ii) at confirmation, as explained in Phillimore’s Ecclesiastical Law, 2nd Edn, Vol I, p 517, where the

following passage from Coke’s Institutions I, p 3, is cited:

‘If a man be baptised by the name of Thomas, and after, at his confirmation by the bishop, he is named John, he may purchase by the name of his

confirmation. And this was the case of Sir Francis Gawdie, Chief Justice of the Court of Common Pleas, whose name by baptism was Thomas, and his

name of confirmation Francis; and that name of Francis, by the advice of all the judges, in anno 36 Hen. VIII, he did bear, and after used in all his

purchases and grants.’

In Burn’s Ecclesiastical Law, 9th Edn, Vol II, p 10, the accuracy of the view that this is still the law is questioned, on the ground that:

‘… upon review of the liturgy at King Charles the Second’s restoration, the office of confirmation is altered as to this point, for now the bishop doth

not pronounce the name of the person confirmed, and, therefore, cannot alter it.’

This, however, was a mistake, as is pointed out in Phillimore’s Ecclesiastical Law, Vol I, p 517, where it is said:

‘But LORD COKE’S authority cannot be set aside in this way. He had before him at the time when he thus laid down the law the confirmation

services of Edward and Elizabeth, which are not, as might be inferred from the remark of DR. BURN, different in this respect from that of Charles the

Second. There seems to be no reason to impugn the authority of the precedent cited by LORD COKE.’

􀂭 322􀀉

Cases in which the precedent has been followed are mentioned in Phillimore’s Ecclesiastical Law, and there are records of others in Notes and Queries, 4th

Series, Vol VI, p 17, and 7th Series, Vol II, p 77; besides which I know that bishops have in recent years, on quite a number of occasions, exercised this

power, and there is a recognition of their right to do so in the directions given with reference to the Adoption of Children (High Court) Rules, 1926, printed in

the Yearly Practice of the Supreme Court, 1940, p 2345, in which it is said:

‘The names set out in the certificate of baptism cannot be altered except if the child be confirmed.’

The bishop’s power is discretionary, and is only exercised for what he regards as a good and sufficient reason. It is said to have originated in the need for

getting rid of lasciva nomina, ie, names possessing some improper connotation which had been given in baptism incautiously, or had subsequently acquired

such a connotation. A third method by which a Christian name may in a sense be altered is under the power to add a name when a child is adopted: [see

Yearly Practice of the Supreme Court, 1940, p 2345]. But the precise quality of such an added name is, I think, open to some doubt, for no one can in

strictness possess more than one Christian name, whether it consists of one word or of several, and this method may perhaps be regarded as anomalous.

[Vaisey J then dealt with the second of the two provisoes in cl 9, holding that the time limit of six months did not apply to it, and that it was void for

uncertainty in that the operation of “interspersing” one crest and coat of arms with another crest and coat of arms is unknown in heraldry and incapable of

performance, and proceeded:]

There is further uncertainty in cl 10 of the will. To make any sense of it at all, I should have to change the word “and” into the word “or,” and I think that

some words must have been left out by mistake. The will is in many respects very carelessly drawn, and, while I need not in this case rest my decision upon

any ground of public policy, as in Re Fry, I cannot think that the court would wish to assist so inartistic an attempt to interfere with a man’s name, the one

thing which inalienably belongs to him and is the label which indicates his identity. I will declare that the plaintiff is now absolutely entitled in reversion

expectant on the death of the testator’s widow, that he is under no obligation to assume any name or to assume take or otherwise use any crest or coat of arms,

and that cl 10 of the will, in the events which have happened, is no longer capable of having any operation. The costs of all parties as between solicitor and

client will come out of the trust estate.

Declaration accordingly.

Solicitors: Summerhays & Co (for the plaintiff); Golding, Hargrove & Palmer (for the defendants other than the testator’s daughter); M T Turner & Co (for

the testator’s daughter).

B Ashkenazi Esq Barrister.

[1946] 1 All ER 323