Bromley and Ors v Tryon and Ors

[1952] A.C. 265

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Between: Bromley and Ors - Appellants
And: Tryon and Ors - Respondents

Court:

Judges: Lord Simonds LC
Viscount Jowitt
Lord Normand
Lord Morton of Henryton
Lord Tucker

Subject References:
WILL
SETTLEMENT
Shifting clause
Whether void for uncertainty

Hearing date: 9-10 October
Judgment date: 29 November 1951

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ORDER

Appeal dismissed.

Background

A shifting clause in a will was expressed to operate should any of the issue of B become entitled to a specified settled estate "or the bulk thereof." The estate might be altered substantially in size, character and value before the opening of any particular succession and might be composite of land and money.

Held,

(1)

that in the reference to "the bulk" value and not area or size was intended;

(2)

that the expression meant anything over half, and

(3)

that accordingly the clause was not void for uncertainty.

Decision of the Court of Appeal (sub nom. In re Wilson's Will Trusts, Tryon v. Bromley-Wilson) [1950] W.N. 507 affirmed.

APPEAL from the Court of Appeal (Evershed M.R., Asquith and Jenkins L.JJ.).

This was an appeal from an order of the Court of Appeal dated October 20, 1950, discharging an order dated May 5, 1950, of Harman J., so far as it declared that on the true construction of the will of Gertrude Sophie Wilson, the testatrix, the limitations therein in favour of the appellant, Sir Arthur Bromley, and his issue in the Dallam Tower Estate had not, up to the date of the order, been determined under any of the provisions of the will.

The question at issue in this appeal was whether or not the limitations of the Dallam Tower Estate in the will in favour of Sir Arthur Bromley and his issue had been determined under the provisions of a shifting clause. This involved the following questions:

(1)

Whether the clause in question was valid and effective or was void for uncertainty.

(2)

If it was valid, whether Sir Arthur Bromley ever became entitled to the possession or receipt of the rents and profits of the Stoke Hall Estate, "or the bulk thereof," within the meaning of the clause.

(3)

In any case whether the clause could have any operation until Sir Arthur Bromley or one of his issue became entitled in possession to the Dallam Tower Estate.

When the testatrix died in 1892 Sir Maurice Bromley-Wilson (the elder brother of Sir Arthur Bromley) became first tenant for life of the Dallam Tower Estate under her will. Subsequently the trustees of the estate, for the purposes of the Settled Land Act, 1925, became Sir Arthur Bromley, Charles Edward Tryon and Harry Bordley Greenwood. In 1950, for reasons connected with the proper administration of the estate, it became urgently necessary to determine who, in the event of the death of Sir Maurice Bromley-Wilson without issue, would become entitled to the estate. The choice lay between Sir Arthur Bromley and his issue, if the shifting clause had not operated, and the issue of Mrs. Esther Tryon, his sister, if it had operated.

A summons having been taken out in the Chancery Division, Harman J. held that the limitation in the will of the testatrix in favour of Sir Arthur Bromley and his issue in the Dallam Tower Estate had not determined since, on its true construction, the shifting clause could only operate when both estates vested or were about to vest in the same person. The Court of Appeal having reversed this decision, Sir Arthur Bromley and his children and grandchildren appealed to the House of Lords. The respondents were children and grandchildren of Mrs. Esther Tryon, Sir Maurice Bromley-Wilson and Harry Bordley Greenwood.

The facts are fully stated in the opinion of Lord Simonds L.C.

Christie K.C. and Maurice Berkeley for the appellants.

E. Milner Holland K.C. and Wilfrid Hunt for the respondents.

The arguments sufficiently appear from the opinions.

Their Lordships took time for consideration.