Bromley and Ors v Tryon and Ors

[1952] A.C. 265

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(Decision by: Lord Simonds LC)

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

Court:

Judges:
Lord Simonds LCViscount 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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Decision by:
Lord Simonds LC

My Lords, this appeal raises a question as to the validity and effect of a clause, familiarly known to conveyancers as a "shifting clause," contained in the will dated July 4, 1890, of Gertrude Sophie Wilson, who died on January 23, 1892.

At the date of her will the testatrix was, subject to certain prior interests, including a life interest in her sister Emily, entitled in fee to an estate known as the Dallam Tower Estate situate in the counties of Westmorland and Lancaster. She was a connexion of one Sir Henry Bromley, 4th Baronet, who was at the date of her will tenant for life in possession of an estate known as the Stoke Hall Estate situate in the county of Nottingham, and she was minded, as plainly appears from her will, to settle the Dallam Tower Estate on his grandchildren and remoter issue in such a manner as to ensure that, if any such grandchild or his issue became entitled to the Stoke Hall Estate, then such grandchild or issue should lose whatever interest they took under her will in the Dallam Tower Estate. The substantial question is whether the clause in her will by which she has sought to carry out her intention is wanting in the precision which is a condition of the validity of a condition subsequent.

It will be convenient if, before I come to the relevant clause, I remind your Lordships of the few material facts including the devolution of title to the Stoke Hall Estate.

As I have already said, at the date of the will of the testatrix, Sir Henry Bromley, 4th Baronet, was tenant for life in possession of the Stoke Hall Estate and subject thereto the estate stood limited to his son, also named Henry, who afterwards became 5th Baronet, for life with remainder to Robert Bromley, the eldest son of the 5th Baronet, who later became the 6th Baronet, in tail male with remainders over. As will presently appear the estate was after the death of the testatrix resettled by the 5th Baronet (who had by the death of his father in 1895 succeeded to the title) as tenant for life in possession and his eldest son Robert as tenant in tail.

The pedigree of the Bromley family so far as is necessary for understanding the resettlement and the will of the testatrix and the questions which arise thereout is as follows:-

(i)

The 5th Baronet had four sons and one daughter, all of whom were born in the lifetime of the testatrix.

(ii)

His eldest son, Robert Bromley, the 6th Baronet, died on May 13, 1906, and had no male issue.

(iii)

His second son, the respondent Sir Maurice Bromley-Wilson (hereinafter called "Sir Maurice"), the 7th and present Baronet, is 76 years of age. He has been married twice but has never had any issue; his present wife is over 70 years of age.

(iv)

The third son is the appellant Sir Arthur Bromley (hereinafter called "Admiral Bromley"). He has had issue one son only, the appellant Rupert Howe Bromley, who is married and has had issue two children only, the infant appellants Rupert Charles Bromley and Maurice David Bromley. Admiral Bromley has had issue four daughters, of whom the eldest is the appellant Marion Victoria Bromley and the next daughter is the appellant Anne Lloyd, who is married and has issue. None of the children of Admiral Bromley was born in the lifetime of the testatrix.

(v)

The fourth son of the 5th Baronet was Herbert Assheton Bromley, who died on April 24, 1915, a bachelor.

(vi)

The only daughter of the 5th Baronet is Esther, who has been married once only, namely, to Charles Robert Tryon. She has had issue four sons of whom the eldest, Henry Robert Tryon, died in early infancy on August 21, 1913. Her second son is the respondent Charles Edward Tryon, and he has had issue two children only, both daughters, of whom the elder is the infant respondent Cicely Susan Esther Tryon and the younger died in early infancy.

(vii)

The respondents John Tryon and Thomas Charles Tryon are the younger sons of Mrs. Tryon, and the respondent David John Tryon is the only son of the respondent John Tryon.

The Stoke Hall Estate was, as I have said, resettled after the death of the testatrix. This was effected by a resettlement dated February 26, 1897, following on the usual disentailing deed. The material limitations of the resettlement are as follows:-

(i)

The 5th Baronet for his life.

(ii)

Remainder to his said eldest son Robert for his life.

(iii)

Remainder to the sons of such eldest son Robert successively according to seniority in tail male.

(iv)

Remainder to Sir Maurice for his life and then to his sons successively according to seniority in tail male.

(v)

Remainder to Admiral Bromley for his life and then to his sons successively according to seniority in tail male.

(vi)

Remainder to Herbert Assheton Bromley for his life and then to his sons successively according to seniority in tail male.

(vii)

Remainder to Rupert Fitzroy Bromley (a nephew of the 5th Baronet) for life and then to his sons successively according to seniority in tail male.

(viii)

Remainder to the use that each of the persons (other than Rupert Fitzroy Bromley) to whom estates in tail male had been limited should take successively and in the same order estates in tail general.

(ix)

Remainder to Mrs. Tryon for her life and then to her sons successively according to seniority in tail male and then to her daughters successively in tail general with other remainders over.

I must now return to the will of the testatrix, which I can state shortly. She thereby devised the freehold part of the Dallam Tower Estate on the following limitations:-

(i)

To the use of her mother (who died in the year 1892) during her life.

(ii)

To the use that her cousin Frances Carlton (who died in the year 1919) should receive for her life a yearly rent charge of £400.

(iii)

Subject as aforesaid to the use of Sir Maurice (the second son of the 5th Baronet) during his life with remainder to his sons successively according to seniority in tail male with remainder to such sons successively according to seniority in tail general with remainder to his daughters successively according to seniority in tail general.

(iv)

With remainder to the use of Admiral Bromley during his life with similar remainders to his sons and then to his daughters all successively in tail as aforesaid.

(v)

With remainder to the use of Herbert Assheton Bromley during his life with similar remainders to his sons and then to his daughters all successively in tail as aforesaid, but these limitations failed as he died a bachelor.

(vi)

With remainder to the use of the fifth and every other son of the 5th Baronet thereafter to be born successively in tail, but this limitation also failed as there was no such son.

(vii)

With remainder in the words following:

"To the use of the first and every other daughter of the said Henry Bromley" (referring to the 5th Baronet) "hereafter to be born successively according to seniority in tail general."

(viii)

With remainders over to various members of the Hulton family.

These limitations were followed by a proviso, which in certain events reduced estates in tail to estates for life, and then by the shifting clause, which I must state verbatim. It was in these terms:

"Provided Always and I hereby Declare that if any son daughter or other issue of the said Henry Bromley within the scope of the limitations hereinbefore contained shall by any means whatsoever become actually entitled to the possession or the receipt of the rents and profits of the family estate of Sir Henry Bromley the father of the said Henry Bromley meaning thereby the Stoke Hall Estate near Newark in the County of Nottingham or the bulk thereof whether consisting of the same premises as that estate now consists of or in any manner altered in the way of addition substitution diminution or otherwise and so that this proviso shall not be rendered inoperative by reason of such estate or any part or parts thereof being subjected to any charges or incumbrances whatsoever then and so often as the same shall happen and thereupon every estate hereinbefore limited for life or in tail male or in tail to the son or daughter of the said Henry Bromley who or any of whose issue shall so become entitled and (as to any such son or daughter to whom an estate for life is hereinbefore limited) to the first and other sons and the first and other daughters successively of such son or daughter shall absolutely determine and the said premises hereinbefore devised shall go and remain to the uses upon the trusts and with and subject to the powers provisoes and declarations to upon with and subject to which the same premises would have stood limited and settled by virtue of this my will if such son or daughter had died and there had been a general failure of his or her issue.

But nevertheless without prejudice as to any son or daughter of the said Henry Bromley to whom an estate for life is hereinbefore limited to any jointure yearly rentcharge or portions which may have been charged by such son or daughter under the respective powers for those purposes hereinafter contained before such son or daughter shall have become entitled in possession to the said Stoke Hall Estate as aforesaid and without prejudice to any powers remedies or terms of years for securing or raising any such jointure or portions respectively."

I need mention only one other provision of this will and I do so because counsel for the appellants suggested that it had some bearing on the question that your Lordships have to decide. I refer to the power thereby conferred on every person made tenant for life of the Dallam Tower Estate either before or after he should become entitled in possession to charge the estate with a jointure or portions, with a proviso that such jointure or portions should not be chargeable on the estate or be payable or carry interest unless and until such person or some issue of his or hers should, or if of full age would, have become entitled to the provision or receipt of the rents and profits of the estate.

The testatrix also devised all her other freehold estates, subject to certain limitations which need not be stated, on the same limitations and subject to the same provisions as the Dallam Tower Estate, and she gave to her trustees all her copyhold and leasehold hereditaments on trusts corresponding with the same limitations and bequeathed certain chattels to devolve as heirlooms with the estate. The sister of the testatrix, who had a life interest in the estate, survived her by a few weeks only, and thereupon Sir Maurice became tenant for life in possession of the Dallam Tower Estate and of the properties and heirlooms settled therewith, and so he has remained to this day.

On May 13, 1906, upon the death without issue of the sixth Baronet, Sir Maurice was next entitled to a life estate in possession in the Stoke Hall Estate under the resettlement of 1897, but, apprehending that the result of his entering into possession of that estate would be to bring into operation the shifting clause in the will of the testatrix and so to forfeit his interest in the Dallam Tower Estate, on July 9, 1906, by a deed poll of that date, he disclaimed the life estate limited to him by the resettlement. The validity of this disclaimer was challenged by certain members of the family, but in proceedings commenced in the year 1911 in the Chancery Division it was declared by Neville J. that Sir Maurice was entitled to an estate for life in the Dallam Tower Estate. It has been urged on your Lordships that the effect of this judgment is that the question now raised as to the validity of the shifting clause is res judicata. I do not think it necessary to determine this question, but it is clear that it cannot be true of one at least of the present appellants who was neither a party, nor privy in estate to a party, to the proceedings in 1911.

The disclaimer of Sir Maurice being thus effective, Admiral Bromley became and was from July 9, 1906, beneficially entitled under the resettlement of 1897 to a life estate in the Stoke Hall Estate or the bulk thereof within the meaning of the clause. It is important now to notice just what is the question that is to be determined, and I am for the time being ignoring a point upon which Harman J. decided in favour of the appellants. Counsel for the appellants sought at an early stage in his argument to raise this question:

"Assume,"

he said,

"that the shifting clause is not void for uncertainty, yet upon the facts Admiral Bromley did not come within it he did not become actually entitled to the possession of the Stoke Hall Estate or the bulk thereof within the meaning of the clause."

Your Lordships were, however, unanimously of opinion that this argument was not open to him. The unchallenged evidence on which the case proceeded before Harman J. and the Court of Appeal was that Admiral Bromley had since the death of the sixth Baronet in 1906 been in possession of the Stoke Hall Estate. I cite only the following passages.

"He,"

said Harman J. (meaning Sir Maurice),

"retained the Dallam Tower Estate which he had, and Stoke Hall Estate went over to Admiral Sir Arthur Bromley in 1906, and he has been in possession of it ever since."

So also Jenkins L.J.: ^[F1]

"The result, however, of that disclaimer was that Sir Arthur did become actually entitled to possession or receipt of the rents and profits of the Stoke Hall property, his interest being accelerated by Sir Maurice's disclaimer and being no doubt defeasible in the event of the birth of issue to Sir Maurice. It was, no doubt, defeasible in the event of the birth of issue to Sir Maurice, but nevertheless was unquestionably an interest under which he became actually entitled to possession or to receipt of the rents and profits."

In these circumstances it was not open to the appellants to argue that Admiral Bromley's interest did not become subject to the operation of the shifting clause if it was a valid clause, though the actual or hypothetical facts of his case could be used to illustrate its uncertainty.

For reasons connected with the proper administration of the Dallam Tower Estate, in the year 1950 it became urgently necessary to determine who in the event of the death of Sir Maurice without issue would become beneficially entitled to that estate. The choice lay between Admiral Bromley and his issue if the shifting clause had not operated, and Mrs. Tryon and her issue if it had, and this question, which was raised by an originating summons in the Chancery Division, has been decided by Harman J. in favour of Admiral Bromley, but by the Court of Appeal in favour of the issue of Mrs. Tryon who had herself disclaimed any interest.

My Lords, I have so far not mentioned the point on which Harman J. found it possible to decide this case in favour of the appellants. I can do so very shortly, for I am entirely satisfied with the way in which the Court of Appeal disposed of it. If I understand his judgment, the judge proceeded on the footing that on the reading of the will as a whole the testatrix intended to give and gave an election to the person who being in possession of either estate then became entitled to the other, and that, inasmuch as such an election became in certain events impossible on the literal meaning of the clause, it must be so read as only to operate at a moment when a person became entitled to both estates in possession. But I agree with Jenkins L.J. that this view proceeds on a false hypothesis. The language of the shifting clause is too clear to admit of it: there is not even an ambiguity. No other contention is possible than that, Admiral Bromley having become actually entitled to the possession or receipt of the rents and profits of the Stoke Hall Estate, thereupon every estate for life or in tail in the Dallam Tower Estate limited to him or his issue was absolutely determined. Nor can I find anything in the jointure and portions clause, to which I have referred, that in any way leads to a different conclusion.

I come then to the point which was not argued before Harman J. but was chiefly relied on in the Court of Appeal and in this House, viz.: that the clause is altogether void for uncertainty. It is a question which I must approach with this familiar principle in the foreground of my mind: that, where a vested estate is to be defeated by a condition on a contingency that is to happen afterwards, that condition must be such that the court can see from the beginning, precisely and distinctly, on the happening of what event it was that the preceding vested estate was to determine: see Clavering v. Ellison. ^[F2]

The attack upon the language of the shifting clause was based mainly, if not entirely, on the four simple words "or the bulk thereof." These words, it was said, were so vague and uncertain that a beneficiary might not be able to know, nor a court to determine, whether that to which he succeeds for a life or other interest was the Stoke Hall Estate "or the bulk thereof." It was said, and I think rightly said, that it was immaterial that in many, perhaps the great majority of cases, there could be no doubt whether he had done so. It would be sufficient if from the vagueness of the very words the court cannot determine what is the condition on which defeasance takes effect. No better example of this can be found than in the latest case that came before this House, Clayton v. Ramsden, ^[F3] where the condition of defeasance was marriage to a person "not of Jewish parentage and of the Jewish faith." It was irrelevant that of multitudes it might be predicated with certainty that they did or did not satisfy the condition: it was sufficient to hold both limbs of it void for uncertainty that the words themselves were incapable of precise definition. So also in Sifton v. Sifton, ^[F4] where the condition, which was regarded as a condition subsequent, was that payment was to be made to a daughter of the testator only so long as she should continue to reside in Canada, it was held that the term "reside" was too vague to enable the court and the parties concerned to see precisely and distinctly upon what events the payments to the daughter were to cease. The question then is whether the words that I have cited "or the bulk thereof" are of this nature.

My Lords, the shifting clause, as it appears in the will before us, is of respectable antiquity. It appears to have been the invention of the late Mr. Davidson, one of the great masters of the art of conveyancing, and to have been printed for the first time in the second edition of his Precedents and Forms in Conveyancing, Vol. IV, p. 516, which appeared (so far as this volume was concerned) in 1864. It was adopted by Key and Elphinstone in their second edition of Precedents in Conveyancing, Vol. II, p. 566, which appeared in 1883, and is to be found in the numerous subsequent editions up to 1920. Its validity has never, so far as counsel on either side have been able to find out, been questioned. In In re Hinckes, ^[F5] which came first before Astbury J. and then the Court of Appeal, this very clause was under consideration and, though its invalidity would have solved the difficulties of one at least of the parties, it did not occur to the distinguished counsel concerned to raise the question. In how many settlements the clause may have found a place, in how many instances estates may have been forfeited on the footing of its validity, no one can say. If indeed, on a consideration of the clause, I came to the clear conclusion that the words in question had no precise meaning, I should be bound to give effect to my opinion. A long course of conveyancing practice cannot, I think, even where titles may be founded on it, be given the same effect as a line of judicial authority. But at the lowest I should hesitate long before I concluded that words which had for nearly 100 years passed unchallenged by conveyancers, men often profoundly learned in the law of real property and apt to dwell on nice distinctions of language, were after all incapable of sufficiently precise definition.

What then am I to say of the words "the bulk thereof" in the clause and the context in which I find them? It is worth while, I think, to examine the context a little further. The words "the Stoke Hall Estate ... or the bulk thereof" are followed by words which clearly show that the testatrix had in mind that the Stoke Hall Estate might be altered substantially in size, character and value before the opening of any particular succession; and, though it be altered by addition, substitution, diminution or otherwise, and be subjected to any charges or incumbrances whatsoever, it is still for the purpose of this clause "the Stoke Hall Estate." The question then is whether in the context the words "the bulk thereof" have no clear meaning. It was urged that the first and insoluble difficulty lay in this, that it was impossible to determine whether bulk referred to size or value; and in this connexion reference was made to the fact that in In re Hinckes ^[F6] Lord Sterndale M.R. and Younger L.J. refrained from expressing an opinion as to its meaning. I should regret it, my Lords, if, whenever a judge does not express an opinion upon a point which for the purpose of the case it is unnecessary for him to determine, it should be thought to follow that the point was incapable of determination. For myself I should have no doubt that in such a clause and context as this, where it is clear that the settled property may consist of land or capital moneys liable to be invested in land, the choice between size and value is easily made. Just as when I say, by no means colloquially but in formal language, that a man has left the bulk of his fortune or of his estate to X, I refer to value not to area or size, so when a testatrix refers to the bulk of a settled estate which may be composite of land and money, it is value not area or size that is intended.

Then it was said that even so the words are uncertain in content. for it is purely a question of degree what constitutes the "bulk." I cannot accept this contention. I think that according to the ordinary use of language the bulk means the greater part, which may according to the subject-matter refer to area, number or value. And that I may not be thought guilty of a solution which is equally obscure, I will add that "greater part" means anything over one-half. I am of opinion that the words "the bulk thereof" are not subject to the same vice as were the words "of the Jewish faith" and "reside" in the cases that I have cited and as the expression "relation by blood" was thought to be by the Privy Council in Sifton v. Sifton, ^[F7] though Russell J. had determined otherwise in In re Lanyon. ^[F8]

In deference to the argument of learned counsel who sought to illustrate the alleged obscurity of the relevant words by reference to the facts of the present case, I will only add this. It does not follow because the words of a defeasance clause are sufficiently clear to give the clause validity that there may not be cases in which its application is difficult, and I apprehend that, if there is a real doubt, the court will show the same favour to a vested estate in applying the clause as it does in construing it. But in the present case I do not find in the facts as proved, whether as illustrative of the difficulty of construction or of application, anything which would lead me to a conclusion favourable to the appellants.

I have said that the main argument on invalidity was directed to the words "or the bulk thereof." Some reference was also made to the expressions "within the scope of the limitations hereinbefore contained" and "shall by any means whatsoever become actually entitled." But I am wholly unable to see any sort of ambiguity in those words, though the result of them may be capricious.

This appeal should, in my opinion, be dismissed.