Bromley and Ors v Tryon and Ors

[1952] A.C. 265

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(Judgment by: Lord Morton of Henryton)

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

Court:

Judges: Lord Simonds LC
Viscount Jowitt
Lord Normand

Lord Morton of HenrytonLord 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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Judgment by:
Lord Morton of Henryton

My Lords, this appeal must clearly be determined on the footing that in the year 1906 the first appellant, Admiral Bromley, became tenant for life in possession of the Stoke Hall Estate mentioned in the will of the testatrix Miss Wilson. The only affidavit filed in this case so states, and this fact was admitted before Harman J. and in the Court of Appeal.

Two questions remain for decision by your Lordships' House. First, whether the "shifting clause" in the testatrix's will is valid, or is void for uncertainty, and, secondly, if that clause is valid, whether on the true construction of the will it has already operated to exclude Admiral Bromley and his issue from ever succeeding to the Dallam Tower Estate.

The shifting clause has already been read, and I shall not read it again. The attack upon its validity is based principally on the words "or the bulk thereof." It is said on behalf of the appellants that "bulk" is a vague and indefinite word, which introduces uncertainty into the clause. If this is so, the appeal must succeed. As Lord Cranworth said in Clavering v. Ellison: ^[F9]

"From the earliest times, one of the cardinal rules on the subject has been this: 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, upon the happening of what event it was that the preceding vested estate was to determine."

The same rule was expressed by Parker J. in In re Sandbrook ^[F10] in the following terms:

"... conditions subsequent, in order to defeat vested estates, or cause a forfeiture, must be such that from the moment of their creation the court can say with reasonable certainty in what events the forfeiture will occur."

There is no doubt that the shifting clause now under consideration is a condition subsequent; it is therefore necessary to consider the question whether, from the moment of the testatrix's death, the court has been able to say, with reasonable certainty, in what events a forfeiture of the Dallam Tower Estate will occur. If this question is answered in the negative, the shifting clause is void, and the interests of Admiral Bromley and his issue in the Dallam Tower Estate are in no way affected by the fact that in 1906 Admiral Bromley succeeded to the whole of the Stoke Hall Estate.

A convenient method of answering this question is to set out the steps which must be taken, if it is alleged, at any time after the testatrix's death, that a particular individual, whom I shall call XY, has incurred a forfeiture under the shifting clause, and to consider what doubts, if any, arise as to each step.

The first step is to establish that XY is "a son, daughter or other issue of the said Henry Bromley within the scope of the limitations hereinbefore contained." Harman J. construed the words "within the scope of the limitations hereinbefore contained" as meaning "entitled in possession under the limitations hereinbefore contained." He remarked that this was "perhaps not a very easy construction of the words," but he adopted it in order to give effect to what he thought must be the testatrix's intention, and he placed some reliance on the use of the word "determine."

My Lords, this point was fully dealt with by Jenkins L.J. in a passage with which his brethren agreed. He thought ^[F11] that the phrase in question meant simply "to whom the property is limited under the limitations hereinbefore contained" and was unambiguous. I agree with his conclusion and with each step in his reasoning.

Next it must be established that XY has "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." The words "by any means whatsoever" are, to my mind, capable of only one meaning, though they might, in certain circumstances, give rise to great hardship, and it is not suggested that there is any difficulty in identifying the estate which the testatrix described as "the Stoke Hall Estate." At the date of her will, and also at the date of her death, Sir Henry Bromley, the fourth Baronet, was tenant for life in possession of the Stoke Hall Estate.

I shall first consider a case in which it is alleged that XY has become entitled to the whole of the Stoke Hall Estate. The person so alleging must establish that the property to which XY has succeeded can be identified with the Stoke Hall Estate mentioned in the will. There may have been, since the testatrix's death, disentailing deeds, resettlements of part only of the estate, sales and mortgages. All these events, however, have been contemplated by the testatrix in the words which she has used, and any difficulties which might arise as to identity would be merely difficulties of proof. They would not be the result of any ambiguity in the testatrix's will.

Next I consider a case in which it is alleged that XY has become entitled not to the whole but to "the bulk" of the Stoke Hall Estate. I shall take, as an example, a case in which, as a result of various dealings, the Stoke Hall Estate is represented, at the time when the succession opens, by £50,000 Consols, a grouse moor and three farms, and XY has succeeded to part of this collection of properties. How is it to be determined whether the part to which he has succeeded is or is not "the bulk" of the Stoke Hall Estate?

My Lords, in my view the ordinary meaning of the words "the bulk" is "the greater part," and I see no reason for giving them any other meaning in this will. Nor do I see any reason to doubt that, in the context in which they occur, they mean the greater part in value. If the testatrix had been referring to land, and nothing but land, there might have been some doubt whether she meant the greater part in acreage or the greater part in value; but she is referring to an estate which may be "in any manner altered in the way of addition substitution diminution or otherwise," so that the subject-matter may consist partly of land, partly of money or investments and partly of chattels settled to devolve as heirlooms. When the phrase "the bulk" is applied to such a subject-matter, I can give it no other meaning than "the greater part in value."

It follows that, if a doubt arose as to whether XY had become entitled to the bulk of the Stoke Hall Estate, it would only be necessary to value the items of property making up the Stoke Hall Estate at the time of XY's succession, and then to ascertain whether the value of the items to which XY became entitled was or was not more than half the value of the whole. Here again practical difficulties as to the basis of valuation might arise, but they would not be due to any ambiguity in the words used by the testatrix.

The result is that in my judgment the shifting clause satisfies the test laid down in Clavering v. Ellison ^[F12] and in other cases and is valid. And, if its validity is established, there can be no doubt that Admiral Bromley comes within its terms. He is one of the "issue of the said Henry Bromley within the scope of the limitations hereinbefore contained," and in the year 1906 he became "actually entitled in possession" to the Stoke Hall Estate. Thereupon the Admiral and his issue became excluded from the succession to the Dallam Tower Estate.

I would dismiss the appeal.