3PLR – BICKERSTETH (SINCE DECEASED) AND ANOTHER V. SHANU
POLICY, PRACTICE AND PUBLISHING, LAW REPORTS 3PLR
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BICKERSTETH (SINCE DECEASED) AND ANOTHER
V.
SHANU
ON APPEAL FROM THE SUPREME COURT OF NIGERIA.
[PRIVY COUNCIL.]
1936 Jan. 30.
3PLR/1936/2 (PC)
CITATIONS
BEFORE THEIR LORDSHIPS:
LORD ALNESS
LORD MAUGHAM, and SIR SIDNEY ROWLATT
REPRESENTATION
Henry Johnston replied.
Topham K.C. and Horace Freeman for the respondent.
MAIN ISSUES
ESTATE ADMINISTRATION/PLANNING:- Will – Devise of real estate to testator’s underage son – To “take effect” upon his attaining the age of twenty-five years – Where devise vested at testator’s death and not contingent on son attaining twenty-five – Rule of early vesting – Effect
CHILDREN AND WOMEN LAW:- Young people and Inheritance – Will – Testamentary devise devising property on underage heir of testator upon the attainment of a certain age – Whether entitles heir to arrears of rent on property from the date Will vested or only when he attained prescribed age
HISTORY AND SUMMARY
A testator by his will, drawn up in clauses in English form, appointed the appellants to be his executors and trustees, and by cl. 6 devised to his son certain real property consisting of a number of plots of land and the buildings thereon situated at Lagos. A separate clause at the end of cl. 6 stated that: “These devises shall take effect upon my said son attaining the age of twenty-five years.” The testator died in 1918, and the son, on attaining the age of twenty-five years in 1930, brought an action against the appellants claiming an account as from the date of the testator’s death of the rents of the properties devised to him by cl. 6 of the will.
Held, first, that the established rule for construing devises of real estate is that they are to be held to be vested unless a condition precedent to the vesting is expressed with reasonable clearness.
Principle stated by Best C.J. in Duffield v. Duffield (1829) 3 Bligh N. S. 260, at p. 331; and by Warrington L.J. in In re Blackwell.
Blackwell v. Blackwell [1926] 1 Ch. 223, at pp. 233-234, approved and applied.
Held, secondly, that on a consideration of the whole of the will and of the circumstances in which it was made, and applying the above-stated rule or principle, the words “shall take effect” related to the devise taking effect in possession, and were not intended to impose a condition precedent on the devise, which, therefore, was to be construed as vesting at the death of the testator, subject to divestment if the son should fail to attain the age of twenty-five years, and was not contingent on his attaining that age. The son was accordingly entitled to the rents claimed.
Judgment of the Supreme Court of Nigeria affirmed.
APPEAL (No. 97 of 1933) from a judgment of the Full Court of the Supreme Court of Nigeria (March 13, 1933), affirming a judgment of the Divisional Court (May 16, 1932).
The appellants, Gabriel Togonu Bickersteth (since deceased) and Phillip Henryson Williams, were executors and trustees of the will of Joseph Robertson Shanu, who died on May 21, 1918, and by his will, dated November 2, 1917, devised by cl. 6 certain real estate to his son, Evan Adeleye Shanu, the respondent. At the end of cl. 6 was a separate clause providing that: “These devises shall take effect upon my said son attaining the age of twenty-five years.” On his attaining twenty-five years of age, in March, 1930, the respondent brought an action against the appellants claiming an account of the rents of the properties devised to him from the date of the testator’s death in May, 1918.
The question for determination was whether the devise vested at the death of the testator, subject to being divested if the respondent did not attain the age of twenty-five, or was contingent on the respondent attaining that age.
The facts, and the terms of cl. 6 of the will, appear from the judgment of the Judicial Committee.
The Divisional Court (Webber J.), after observing that “in cases of doubt there is always a presumption in favour of early vesting,” held that the devise was vested at the death of the testator, subject to divestment, and that possession was deferred until the plaintiff (respondent) attained the age of twenty-five years.
An appeal to the Full Court of the Supreme Court of Nigeria (Kingdon C.J., Berkeley and Lloyd JJ.) was dismissed. Kingdon C.J., delivering the judgment, was of opinion that Webber J. had correctly stated that there was a presumption in favour of early vesting when, as in this case, there was a doubt as to the intention of the testator.
- Jan. 13.
Henry Johnston for the appellants.
On the true construction of the will the devise was contingent on the respondent attaining the age of twenty-five years.
[LORD ALNESS. The real question is, what is the true meaning and effect of the words “shall take effect”?]
[SIR SIDNEY ROWLATT. If the testator had been asked: “Do you want to be intestate until your son attains twenty-five?” what would he have said?]
He would have said “No”; but the words in the will that the devise is to take effect on the respondent attaining the age of twenty-five are perfectly unambiguous.
[LORD ALNESS. I can understand that the words “take effect” postulate a gift already given.]
[LORD MAUGHAM. Where, for example, a gift is made to take effect at thirty, the notion is that the time is introduced simply for the purpose of postponing enjoyment.]
In In re Wrightson. Battie-Wrightson v. Thomas (1), which is an authority for the proposition that a devisee of real property under a devise which has vested, but which is liable to be divested, is entitled to possession of the rents, reference is made to Duffield v. Duffield (2), which lays down the general principles applicable. It is there stated (2) that all estates are to be held to be vested except those which the Court cannot treat as vested “without deciding in direct opposition to the terms of the will.” There is that “direct opposition to the terms of the will” in this case. If the judgments below are right, the devisee would be entitled to possession immediately on the testator’s death, and that is in direct opposition to the wording of the will. [Reference was made to Hawkins on Wills, 3rd ed., p. 282.] In Phipps v. Ackers (3) Tindal C.J. said(3): “In such a case Mr. Fearne may be right in the opinion found among his posthumous works, that until the devisee attains the prescribed age, he takes no interest whatever in the devised lands.” In re Blackwell. Blackwell v. Blackwell (4) does not bring the present case within the rule in Boraston’s Case. (5) If the words “take effect” were omitted, the devise would be, “to my son upon his attaining the age of twenty-five years,” and that would clearly be contingent on his attaining that age: the inclusion of the words “take effect” cannot have a different effect.
(1) [1904] 2 Ch. 95.; (2) 3 Bligh N. S. 260, 331.; (3) (1842) 9 Cl. & F. 583, 590-591.; (4) [1926] 1 Ch. 223, 233, 231.; (5) (1587) 3 Rep. 19a.
Topham K.C. and Horace Freeman for the respondent.
Looking at the will apart from technical rules, what the testator was endeavouring to say, was: “I am devising certain property to my son, but he is not to have it in possession until a certain time.” The rule on which the appellants rely, as stated by Best C.J. in Duffield v. Duffield (1), is a very strong one in favour of early vesting rather than a contingent gift. The tendency of the Courts to-day is not to pay quite so much attention to strict rules of construction, but first to determine what the will really means. Warrington L.J. in In re Blackwell (2) said:
“…. the Court is inclined rather to hold an estate to be vested than contingent if the words of the will will allow it to do so.”
There is no gift over here, so the principle in Phipps v. Ackers (3) does not apply.
[LORD ALNESS. In Carlton v. Thompson (4) the headnote states that “The
leaning of the law is towards vesting.”]
The latest authority is In re Blackwell (2), where Pollock M.R., referring to the rule as stated in Hawkins on Wills, 3rd ed., p. 282, said (5): “If that rule is followed there is a leaning towards a construction of a will as giving a vested rather than a contingent interest.” Lord Hanworth appears there to accept the general rule as stated in Hawkins on Wills. The judgments in the Court below proceed solely on the ground that there is a doubt as to the intention of the testator. If there be a doubt, then the rule is that the Court leans in favour of vesting rather than otherwise.
The fact that the condition as to attaining twenty-five is contained in a separate direction is an indication in favour of early vesting. The cases referred to in the 8th ed. of Theobald on Wills, under “Vesting of Real Estate,” at p. 643, bear out this proposition: perhaps the clearest is Attwater v. Attwater (6), where Snow v. Poulden(7) was followed, and it was held that the devisee took a vested interest in the land devised, subject to divestment in the case of death under the age of twenty-five years. The rule in Boraston’s Case (8) also applies to a part of this will: that rule is stated at p. 282 of the 3rd ed. of Hawkins on Wills.
(1) 3 Bligh N. S. 260, 331.; (2) [1926] 1 Ch. 223, 233.; (3) 9 Cl. & F. 583.; (4) (1867) L. R. 1 H. L. Sc. 232.; (5) [1926] Ch. 231.; (6) (1853) 18 Beav. 330.; (7) (1836) 1 Keen, 186.; (8) (1587) 3 Rep. 19a.
In support of the proposition that the interest is vested see also the observations of Lord Mansfield in Goodtitle v. Whitby. (1) [Reference was also made to Doe v. Lea (2), and Peard v. Kekewich.(3)] Returning to the terms of the will, the testator gives a devise in terms absolute, and then says when it is to take
effect – at the age of twenty-five: he did not mean that there should be an intestacy in the interval. He intended that the gift should be vested.
Henry Johnston replied.
MAIN JUDGMENT
Jan. 30. The judgment of their Lordships was delivered by
LORD MAUGHAM. This is an appeal from a judgment of the Full Court of the Supreme Court of Nigeria in an action in which the appellants were the defendants and the respondent was the plaintiff. One of the appellants is now dead, and the appeal has been prosecuted by the surviving defendant. The action was brought by the respondent, as devisee of certain properties, for an account of the rents collected by the appellants in respect of these properties from the death of the testator until the date when the respondent attained the age of twenty-five years. The question for the determination of this Board is whether the devise to the respondent by the testator’s will vested at the death of the testator, subject to being divested if the respondent did not attain twenty-five, or was contingent on the respondent attaining the age of twenty-five. The Full Court, following the judgment of the learned judge in the Supreme Court of Nigeria, has decided in favour of the former view, and it is not in dispute that, if that decision was correct, the order for an account of rents collected by the appellants in respect of the real properties in question must stand.
The will is dated November 2, 1917. The testator desired, as appears from the instrument, to provide for his wife, a number of collateral relatives, and, in particular, for a son,
(1) (1757) 1 Burr. 229.
(2) (1789) 3 T. R. 41.
(3) (1852) 15 Beav. 166.
the respondent, and a daughter, Phyllis Alaba Shanu. The two children on that date were infants. The respondent was aged twelve, and did not attain the age of twenty-five until 1930. The testator possessed a considerable number of freehold pieces of land and houses situate in or near Lagos, in the Colony of Nigeria, where he had carried on business as a trader, and he appears also to have possessed personal estate of substantial value. By his will, which is drawn up in clauses in English form, after revoking all previous wills and declaring that to be his
last will, he appointed the appellants and one Foresythe (since deceased) to be his executors and trustees. By cl. 2 of the will he gave and bequeathed some twenty-one legacies, and it should be noted that a
pecuniary legacy of 400l. bequeathed to his daughter Phyllis was to be deposited for her in a Lagos bank, and that the rent of a house known as 65 Campbell Street, Lagos, was to be paid to her during the period of two years immediately following her marriage as pocket money. To his son, the respondent, the testator gave a legacy of 1000l., to be deposited for him in the same bank “until he attains the age of twenty-five years.” It may be observed that this gift was beyond doubt a vested gift, though the testator attempted to postpone the enjoyment of it until the respondent should attain the age of twenty-five. By cl. 3 the testator devised certain land and houses in trust for his wife for the term of her natural life, and from and after her death in trust for his son, the respondent, and his heirs. By cl. 5 he devised another piece of land to his daughter Phyllis and her heirs, and there follows the sentence “this devise shall take effect two years after the marriage of my said daughter.” Clause 6, which is the clause raising the present question, is in these terms:-
“6. I devise unto my son Evan Adeleye Shanu and his heirs (A) all that piece of land situate at Oil Mill Street aforesaid together with the house, buildings, and premises erected thereon and known as ‘Shanuville,’ 5 Oil Mill Street; And also (B) all that piece of land situate at Campbell Street aforesaid together with the house buildings and premises erected thereon being a portion of the property known as
‘Shanu Terrace’ 61 and 63 Campbell Street aforesaid; And also (c) all that piece of land situate at Massey Street in the town of Lagos aforesaid together with the house buildings and premises erected thereon and known as my business place, 39 Massey Street aforesaid; And also (D) all those three pieces of land situate at Massey Street aforesaid opposite to my said business place together with the house buildings and premises erected thereon and known as 22 Massey Street; And also (E) my piece of land situate at Ebute Metta a suburb of the town of Lagos aforesaid together with the house buildings and premises erected thereon.”
“These devises shall take effect upon my said son attaining the age of twenty-five years.”
By cl. 8 the testator disposes of the residue of his personal estate. The trustees are to stand possessed thereof upon trust to defray the cost of the maintenance and education and of the marriage of his daughter Phyllis, and the cost of the maintenance and education of his son, the respondent. By cl. 9 he directs that his son shall attend at a certain grammar school till he attains the highest form therein, after which his trustees are to give him a four years’ course of further education, and every facility to qualify in such trade or profession as his son may show an aptitude for. By cl. 10 the testator directs that a cousin, Emanuel Agemo Olajonlu, shall occupy and reside in his house at 39, Massey Street, rent free until his son, the respondent, shall attain the age of twenty-five years, and that his trustees shall let the shop attached to the said 39, Massey Street, at such rent and subject to such covenants as they shall think fit. The house, 39, Massey Street, is one of the parcels of real estate devised to the testator’s son. The will contains no gift of residue of real estate.
The testator died at Lagos on May 21, 1918. His will was proved in the Supreme Court of Nigeria on July 11, 1918. The respondent attained the age of twenty-five years in March, 1930, and thereupon claimed to be entitled to the rents of the properties devised to him from the date of the testator’s death. The action was tried on May 11, 1932, before Webber J. The learned judge on May 16, 1932, delivered a reserved judgment in favour of the respondent. In his reasons he stated that he had had some difficulty in coming to a conclusion, and he relied on the proposition that in cases of doubt there is always a presumption in favour of early vesting, and that it would be presumed that the testator intended the gift to be vested, subject to being divested, rather than to remain in suspense. From this judgment the appellants appealed. The appeal was heard in the Full Court on March 13, 1933, before Kingdon C.J., Berkeley and Lloyd JJ. The judgment of the Court was delivered by the Chief Justice, who said that there was a doubt as to the intention of the testator as to the date of the vesting of the property demised. He thought, however, that the learned judge in the Court below correctly stated that there was a presumption in favour of the early vesting in a case of doubt, and the appeal was accordingly dismissed.
Their Lordships’ attention has been called to a passage in Theobald on Wills, 8th ed., p. 642, in which the author states that the Court (in this country) does not now lean in favour of early vesting of real estate in considering the true construction of a will, and that the Court now “gives effect to the intention expressed [in the will] without any preconception as to what the testator ought to have or has intended, subject only to this, that it may be bound by rules established by the early authorities, though it might not now adopt such rules, if the matter were at large.” It seems to their Lordships to be desirable to determine in the first instance whether the passage above cited is or is not correct. It is contrary to the opinions expressed in Jarman on Wills, 7th ed., vol. 2, p. 1330, in Hawkins on Wills, 2nd ed., p. 283, 3rd ed., p. 282, and in Halsbury’s Laws of England, vol. 28, p. 798. The
passage generally relied upon for the principle in question is taken from the unanimous opinion of the judges delivered by Best C.J. in the case of Duffield v. Duffield. (1) In the construction of devises of real estate he said: “The judges from the earliest times were always inclined to decide, that the estates devised were vested; and it has long been an
(1) 3 Bligh N. S. 260, 331.
established rule for the guidance of the Courts of Westminster in construing devises, that all estates are to be holden to be vested, except estates, in the devise of which a condition precedent to the vesting is so clearly expressed, that the Courts cannot treat them as vested, without deciding in direct opposition to the terms of the will.
If there be the least doubt, advantage is to be taken of the circumstance occasioning that doubt; and what seems to make a condition, is holden to have only the effect of postponing the right of possession.”
In delivering the opinion Best C.J. stated (1) some of the reasons which had induced the judges to adopt the rule, and it may be observed that Lord Eldon, who was presiding, expressed his concurrence with the opinion of the judges. Their Lordships have not been referred to any judgment throwing doubt upon the general validity of the rule, if it may be so described, although in subsequent statements of the Court, the doctrine has been laid down in somewhat less emphatic terms, and it may well be that the present view is more accurately expressed in the language used by Lord Warrington, as Warrington L.J., in the case of In re Blackwell. Blackwell v. Blackwell. (2) It should be observed that a similar principle has been formulated in a number of cases in connection with the very similar, if not identical, question whether a condition affecting an estate is to be construed as a precedent or as a subsequent condition. It has been laid down that in cases of doubt the presumption is in favour of treating the condition as subsequent. The authorities will be found referred to in the case of In re Greenwood. Goodhart v. Woodhead. (3) On the whole their Lordships see no reason for doubting that the established rule for the guidance of the Court in construing devises of real estate is that they are to be held to be vested unless a condition precedent to the vesting is expressed with reasonable clearness.
In the present will the question may be said to depend upon the meaning of the words “shall take effect upon my son attaining the age of twenty-five years.” The words
(1) 3 Bligh N. S. 330.
(2) [1926] Ch. 223, 233-234.
(3) [1903] 1 Ch. 749.
[1936] 299
A.C. BICKERSTETH v. SHANU. (J.C.)
“take effect” in this connection have not apparently been made use of in any will which has come before the Courts, and their meaning is untouched by authority. In this case several considerations may help in their construction. It is not immaterial to note that the devise to the son in cl. 6 begins in the form of an absolute gift, and that the sentence which occasions the difficulty follows in the form of a separate clause, which, if the appellant’s view is correct, must be treated, though it certainly is not wholly free from ambiguity, as cutting down the prior devise. Again, the legacy to the son is to be deposited in a bank until the son attains the age of twenty-five years;
and this may be thought to suggest that the object of the testator with regard to his son was not to prevent him having any estate in the real property unless and until he should attain the age of twenty-five years, but rather to postpone his enjoyment, and if possible to prevent him from misapplying the property before he was twenty-five. Further, some weight may properly be attached to the consideration that if the appellant is correct, and the devise is contingent, the rents and profits of the properties in question until the son attained the age of twenty-five would pass as on an intestacy, with the result that neither the testator’s son nor daughter would in any circumstances derive any benefit from such rents and profits, a singular result having regard to the fact that the testator has actually directed his trustees to let the shop attached to 39, Massey Street premises, at such rent and subject to such covenants as they shall think fit. On the other hand, no weight can properly be attached to the direction that the cousin, Emanuel, shall
occupy and reside in the house at 39, Massey Street, since this appears to be merely a personal right of occupation and not the gift of an estate.
On a consideration of the whole of the will and of the circumstances in which it was made, and applying the rule or principle above referred to in relation to vesting, their Lordships are of opinion that the true construction of the words “shall take effect” is that they relate to the devise taking effect in possession, and are not intended to impose a condition precedent on the devise contained in cl. 6 of the will.
The devise must therefore be construed as vesting at the death of the testator, subject to divestment if the respondent should fail to attain the age of twenty-five.
They will accordingly humbly advise His Majesty to affirm the judgment appealed from. The appellant must pay to the respondent his costs of this appeal.
Solicitors for appellant: Benham, Synott & Wade.
Solicitors for respondent: Stoneham & Sons.
