[1920] 1 A.C. 794
[HOUSE OF LORDS.]
HUTCHINSON, APPELLANT;
AND
NATIONAL REFUGES FOR HOMELESS AND DESTITUTE CHILDREN AND OTHERS,
RESPONDENTS.
1920 May 4
VISCOUNT FINLAY, VISCOUNT CAVE, LORD DUNEDIN, LORD ATKINSON, and LORD
MOULTON.
Will - Construction - Gift to such Persons as on Failure of preceding
Trusts "shall be my next of kin and entitled to my personal estate
under the Statutes of Distribution" - Period of ascertaining Class.
Testator gave his residuary personal estate upon trust, after the
death or remarriage of his wife, for his three daughters and their
respective children in equal shares with cross limitations between
them, and directed that "on the failure of all the trusts hereinbefore
declared of the residue of my personal estate, such residue shall be
in trust for such person or persons as on the failure of such trusts
shall be my next of kin and entitled to my personal estate under the
Statutes for the Distribution of the Personal Estates of Intestates,
such persons if more than one to take distributively according to the
said statutes":-
Held, that the ultimate gift of residue was in favour of those persons
who would have been the next of kin of the testator under the Statutes
of Distribution if he had died at the date of the failure of the
antecedent trusts.
Bullock v. Downes (1860) 9 H. L. C. 1; Mortimore v. Mortimore
(1879 4 App. Cas. 448, and In re Wilson [1907] 2 Ch. 572
distinguished.
Wharton v. Barker (1858) 4 K. & J. 483, Sturge and Great Western
Railway Co. [*705].
Sturge and Great Western Railway Co. (1882) 19 Ch. D. 444. In re
McFee (1910) 79 L. J. (Ch.) 676, In re Helsby (1914) 84 L. J. (Ch.)
682, and In re Mellish [1916] 1 Ch. 562 followed.
Decision of the Court of Appeal [1919] 2 Ch. 17 reversed.
APPEAL from an order of the Court of Appeal(1) affirming an order of
P. O. Lawrence J.
The facts, which are fully stated in the re****t of the case before the
Court of Appeal, may be summarized as follows:-
By his will dated March 27, 1852, William Hutchinson gave his
residuary personal estate upon trust for his wife during widowhood,
and then upon trust in equal thirds for his three daughters for life,
with remainder to their children and with cross gifts between them;
and the will continued:-
"And I do further direct that on failure of all the trusts
hereinbefore declared of the residue of my personal estate such
residue shall be in trust for such person or persons as on the failure
of such trusts shall be my next of kin and entitled to my personal
estate under the statutes for the Distribution of Estate of
Intestates, such persons if more than one to take distributively
according to the said Statutes."
In the events which happened the failure of the specific trusts
occurred on the death in 1918 of Sarah, the last surviving daughter of
the testator.
The question for decision was whether the next of kin referred to in
the ultimate trust were to be ascertained at the date of the
testator's death or at the period of distribution.
P. O. Lawrence J. held that the class of next of kin to take were the
persons entitled under the statutes of Distribution and to be
ascertained at the death of the testator, and not at the date of the
failure of the trusts, and his decision was affirmed by the Court of
Appeal (Swinfen Eady M.R., Scrutton L.J. and Eve J.).
The appellant represented the persons who if the testator had died on
the failure of the antecedent trusts of the will
(1) [1919] 2 Ch. 17.
[*796] would be the next of kin of the testator according to the
Statutes of Distribution. The first named respondents represented the
statutory next of kin of the testator at the date of his death.
1920 March 22, 23. Jenkins K.C. and Preston K.C. for the appellant.
This is a gift to an artificial class of persons to be ascertained at
a future period - namely, on the failure of the previous trusts of the
will - and the concluding words of the clause were inserted to
distinguish between the next of kin at common law and the next of kin
under the Statutes of Distribution: see Withy v. Mangles. (1) It is a
gift to those who would be the statutory next of kin of the testator
if he had died on the failure of the previous trusts. The Court of
Appeal treated the case as covered by authority, but the authorities
relied upon by the Court are distinguishable. Bullock v. Downes (2)
does not decide that whenever the testator uses the words "entitled
under the statute" the class is to be ascertained at the testator's
death, but it lays down a prima facie rule of construction only which
will yield to a contrary indication of intention by the testator; and
in that case the testator stated his own hypothesis for he uses the
words "in case I had died intestate." If those words had occurred here
there would have been no room for the appellant's argument. Mortimer
v. Slater (3) affirmed by this House sub nom. Mortimore v. Mortimore
(4) was treated both by the Court of Appeal and by this House as
indistinguishable from Bullock v. Downes. (2) No doubt, if James
L.J.'s account of the ratio decidendi of Bullock v. Downes (2) is an
exhaustive statement of the case the appellant is out of Court; but
the Lord Justice misconceived the effect of that decision and treated
it as going further than it did. On the other hand, the appellant
relies upon the classification of the authorities made by Thesiger
L.J. in the same case. The first class is where the word "then,"
(1) (1843) 10 Cl. & F. 215.
(2) 9 H. L. C. 1.
(3) (1877) 7 Ch. D. 322.
(4) 4 App. Cas. 448.
[*797] the adverb of time, is attached to the description of the class
of persons to take. In that ca.se the word "then" im****ts that the
class is to be ascertained at the time so pointed out - i.e., the
period of distribution. The second class is where words of futurity,
but without the adverb of time, are attached to the description of the
class, and there the words speak from the time of the testator's
death. The third class is where the word "then" is used, not in
connection with the description of the class, but in connection with
the time at which the estate is to be enjoyed. There too the class of
beneficiaries is to be ascertained at the testator's death. Bullock
v. Downes (1) did not lay down any settled rule of construction as to
the meaning of the word "then" and it contains nothing which touches
upon what the Lord Justice said as to the meaning of that word.
Indeed, a careful scrutiny of Bullock v. Downes (1)shows that if the
word "then" in the will under consideration in that case had been
transposed and applied to the ascertainment of the class the decision
would have been the other way. Thesiger L.J.'s classification has
never been questioned in any subsequent case, and it must be treated
as law. This case falls under the first of the three cl*****. It is
true that the word "then" is not used, but the expression "On the
failure of the trusts hereinbefore declared" is equivalent to "then."
That expression, when it first occurs, refers to the creation of the
estate, but, when it occurs the second time, it plainly refers to the
ascertainment of the class. In Mortimore's Case (2) the word "then"
was attached to the payment and not to the class who were to receive
payment. In re Wilson (3)again is treated as covered by Bullock v.
Downes. (1)
In Hood v. Murray (4) Lord Watson accurately defines the rule to be
derived from Bullock v. Downes (1) and Mortimore's Case.(2) "The
rule," he says, "is simply this, that in cases where a testator or
settlor, in order to define
(1) 9 H. L. C. 1.
(2) 7 Ch. D. 322; 4 App. Cas. 448.
(3) [1907] 1 Ch. 450; [1907] 2 Ch. 572.
(4) (1889) 14 App. Cas. 124, 137.
[*798] the persons to whom he is making a gift, employs language
commonly descriptive of a class ascertainable at the time of his own
death, he must prima facie, and in the absence of expressions
indicating a different intention, be understood to refer to that
period for the selection of the persons whom he means to favour," and
he adds that "the rule has no other effect than to attribute to the
words used their natural and primary meaning, unless that meaning is
displaced by the context."
This was a purely contingent gift and the class has to be ascertained
at a future time. The testator cannot have intended to give to persons
who ex hypothesi were dead.
The construction indicated by the appellant, the artificial class
construction, has been adopted in several cases, where the context
requires it. Wharton v. Barker (1); Sturge and Great Western Railway
Co .(2); In re McFee (3); In re Helsby (4); In re Mellish. (5)
Those cases are indistinguishable in principle from the present case.
Apart from authority it cannot be doubted that the true construction
is that for which the appellant contends, and there is no authority
which militates against that construction.
Ward Coldridge K.C. and Sheldon for the first-named respondents. It is
a natural thing for a testator on the failure of the specific trusts
to leave his property at the disposal of his statutory next of kin:
Ware v. Rowland. (6) The question is: Is that what the testator has
done in this case or has he given his property to an artificial class
to be ascertained at the period of distribution? The expression here
used is "entitled under the Statutes." That must mean that the class
of legatees must be ascertained at the testator's death, for the only
persons who can show a title to the testator's personal estate under
the Statutes of Distribution are the persons who at the date of the
testator's death are his next of kin under those statutes.
The use of the word "entitled" is sufficient to negative
(1) 4 K. & J. 483.
(2) 19 Ch. D. 444.
(3) 79 L. J. (Ch.) 676.
(4) 84 L. J. (Ch.) 682.
(5) [1916] 1 Ch. 562.
(6) (1847) 2 Ph. 635, 639.
[*799] the notion of an artificial class: Hawkins on Wills, 1st ed.,
pp. 99-101; Jarman on Wills, 6th. ed., vol. ii., p. 1649, Theobald on
Wills, 6th. ed., p. 336. If the testator had indicated that the class
was to be ascertained on the footing that he had died intestate at the
date of the failure of the trusts there would have been nothing more
to be said, but this will contains no such indication.
The statement of the law by James L.J. in Mortimore's Case (1) is
directly in point. That statement was quoted by Parker J. in In re
Wilson (2), and on appeal Farwell L.J. stated the law in the same way.
(3) Cable v. Cable (4) and Wheeler v. Addams (5) are earlier decisions
to the same effect. This case is concluded by Bullock v. Downes
(6)and Mortimore v. Mortimore. (7)
Lavington for the trustees of the will.
Jenkins K.C. replied.
The House took time for consideration.
May 4. VISCOUNT FINLAY. My Lords, this case raises a point on the
construction of the will dated March 27, 1852, of William Hutchinson
who died on June 3, 1855. The question is whether the residuary
bequest is to be construed as in favour of the next of kin of the
testator to be ascertained at the time of his death or whether it is
in favour of those who would have been the next of kin if his death
had taken place at the time when the antecedent interests under the
will expired.
The testator left a widow who died on August 24, 1870, and three
daughters, Elizabeth who died in September, 1898, Frances who died on
April 13, 1911, and Sarah who died on January 11, 1918, none of them
leaving any issue. Claim is made to the residue by a Charity under the
will of Sarah, who was one of the next of kin of the testator on his
decease. The appellant is a grandson of Ann Hutchinson, a sister
(1) 7 Ch. D. 322, 327.
(2) [1907] 1 Ch. 450, 462.
(3) [1907] 2 Ch. 572, 576.
(4) (1853) 16 Beav. 507.
(5) (1853) 17 Beav. 417.
(6) 9 H. L. C. 1.
(7) 4 App. Cas. 448.
[*800] of the testator, and would be one of the next of kin of the
testator if by the terms of the will that class should be ascertained
as at the death of Sarah in 1918. P. O. Lawrence J. decided in favour
of the Charity and he was affirmed by the Court of Appeal.
The will provided for an annuity to the widow of the testator and gave
interests in the residue of the property to the three daughters of the
testator and their issue with cross remainders and then proceeded as
follows: "And I do further direct that on failure of all the trusts
hereinbefore declared of the residue of my personal estate such
residue shall be in trust for such person or persons as on the failure
of such trusts shall be my next of kin and entitled to my personal
estate under the Statutes for the Distribution of the personal Estates
of Intestates such persons if more than one to take distributively
according to the said Statutes."
It was urged for the appellant that this clause shows that the class
of next of kin is to be ascertained as on the death of Sarah, the last
surviving daughter. The respondents, on the other hand, contended that
the words of the clause leave the class of next of kin to be
ascertained in the usual manner at the death of the testator. There
are a great many authorities upon the construction of such clauses,
many of which have been cited to your Lord****ps. The leading case is
Bullock v. Downes. (1) The will in that case created trusts in favour
of the son of the testator for life and afterwards in favour of his
children, and in case there should not be any child of the son "then
to stand possessed of the same in trust for such person or persons of
the blood of me as would by virtue of the Statutes of Distribution of
Intestates' Effects have become and been then entitled thereto in case
I had died intestate." The decision of the House (Lord Campbell, L.C.
Lord Brougham, Lord Cranworth, Lord Wensleydale and Lord Kingsdown)
was that the persons entitled were to be ascertained at the death of
the testator and that the interest of the son as one of those persons
was
(1) 9 H. L. C. 1.
[*801] not affected by the previous gift of a life interest in the
whole of the residue and passed to his personal representatives. The
whole effect of the decision is stated in a few sentences in the
judgment of the Lord Chancellor, Lord Campbell, as follows (2):-
It seems to me quite clear that upon the just construction of this
will the personal representatives of the testator's son were, in the
events which happened, entitled to a share of the personal property in
question; the son, having been one of the blood, or next of kin of the
testator, who at the testator's death would, by virtue of the Statute
of Distributions, have been entitled thereto in case the testator had
died intestate. Generally speaking, where there is a bequest to one
for life, and after his decease to the testator's next of kin, the
next of kin who are to take are the persons who answer that
description at the death of the testator, and not those who answer
that description at the death of the first taker. Gifts to a class
following a bequest of the same property for life vest immediately
upon the death of the testator. Nor does it make any difference that
the person to whom such previous life interest was given is also a
member of the class to take on his death. .... There may be, as in the
last case of Wharton v. Barker (1) before Vice-Chancellor Page Wood,
a clear indication in the will that notwithstanding the use of such
expressions, the time for ascertaining the class is the time fixed by
the will as the period of distribution. But in the will now to be
construed nothing appears to indicate an intention in the testator
contrary to the general rule; and on the contrary the second 'then' in
this limitation seems expressly to refer to the time of the testator's
death as the period when the class was to be ascertained."
Bullock v. Downes (2) therefore decides that, prima facie, the next
of kin are to be ascertained at the death of the testator, but, that
if there is a sufficient indication to that effect in the words of the
will, the time for ascertaining the
(1) 9 H. L. C. 12, 13.
(2) 4 K. & J. 483.
[*802] class may be the time fixed by the will as the period of
distribution. The question in this as in every other case of the kind
must be whether there is in the will a sufficient indication that the
period of distribution is the time at which the class is to be
ascertained.
Your Lord****ps are indebted to the counsel in the case for the
selection which has been made from the multitude of authorities of a
certain number of typical cases. Taken in chronological order these
cases are as follows:-
(1.) (1858) Wharton v. Barker. (1)
(2.) (1877) Mortimer v. Slater (2) and S. C. sub nom. (1879);
Mortimore v. Mortimore. (3)
(3.) (1882) Sturge and Great Western Railway Co .(4)
(4.) (1907) In re Wilson. (5)
(5.) (1910) In re McFee. (6)
(6.) (1914) In re Helsby. (7)
(7.) (1916) In re Mellish. (8)
The first of these cases, Wharton v. Barker (1), is of great value,
as it contains a very thorough investigation by Wood V.-C. of all the
authorities up to 1858, and the other cases in the list give a view of
the state of the authorities down to 1916. It would be useless to go
through these cases in detail. It is a question of construction in
each case whether the class is to be ascertained at the death of the
testator or at a later date. It is for those who assert that the class
is to be ascertained at a date other than that of the death of the
testator to show that this is the fair result of the language of the
will. If by the use of an adverb of time or otherwise the will shows
that the class is to be ascertained on the death of the holder of some
antecedent interest, this settles the point.
I turn at once to the consideration of the clause in the will on which
the determination of this case must turn. That clause directs what is
to be done "on failure of all the trusts
(1) 4 K. & J. 483.
(2) 7 Ch. D. 322.
(3) 4 App. Cas. 448.
(4) 19 Ch. D. 444.
(5) [1907] 1 Ch. 450; [1907] 2 Ch. 572.
(6) 103 L. T. 210; 79 L. J. (Ch.) 676.
(7) 84 L. J. (Ch.) 682.
(8) [1916] 1 Ch. 562.
[*803] hereinbefore declared of the residue of my personal estate."
That event has happened by the death of Sarah, the last of the
daughters of the testator, without issue. The clause goes on to
provide that in that event "such residue shall be in trust for such
person or persons as on the failure of such trusts shall be my next of
kin and entitled to my personal estate under the statutes for the
distribution of the personal estates of intestates such persons if
more than one to take distributively according to the said statutes."
The reference for the second time to "the failure of such trusts" is
to be noted. In the words "for such person or persons as on the
failure of such trusts shall be," etc., the phrase "on the failure of
such trusts" must denote the time at which the next of kin are to be
ascertained. "On the failure of such trusts" in this connection is
exactly equivalent to "then." In the event of failure of the
antecedent trusts the residue is to go to such persons as then answer
the description given in the clause. What is that description? It is
"my next of kin and entitled to my personal estate under the
'Statutes' for Distribution." Great stress was laid by the respondents
upon these last words. It was urged that no one can be entitled under
the Statutes of Distribution except the next of kin on the death of
the testator, and that these words showed that the testator had in
view the next of kin under the statutes at the time of his death. It
was argued that these words did away with the inference which
otherwise might have been drawn from the earlier words in the clause
that the class was to be ascertained at the date of the failure of the
antecedent trusts. I cannot attribute any such force to these words.
It appears to me that what they mean is that the next of kin to be
ascertained as on the failure of the earlier trusts are to be the next
of kin according to the Statutes of Distribution. Without some such
words the trust for next of kin would have been read as denoting next
of kin at common law and not according to the statute: Withy v.
Mangles (1); and see Vaughan Hawkins on The Construction of Wills, p.
97 and following
(1) 10 Cl. & F. 215.
[*804] pages. These words are merely part of the definition of the
class as being next of kin according to the statute and not at common
law. The reference to "the failure of such trusts as the point of time
at which the class is to be ascertained is clear and definite, and to
read the words "entitled to my personal estate under the statutes" as
denoting the next of kin at the death of the testator would make the
clause repugnant to itself.
The clause goes on to deal with the manner in which the members of the
class are to take - "such persons if more than one to take
distributively according to the said statutes." These last words to me
seem somewhat to militate against the respondents' contention. If the
class denoted by the earlier words had been the next of kin at the
death of the testator they would as a matter of course have taken
distributively as under the statutes. The last words would in that
case have been unnecessary, but they come in naturally in dealing with
an artificial class of next of kin with reference to the date at which
the earlier trusts fail, and provide that the members of the class are
to take according to the statute as tenants in common and not as at
common law as joint tenants.
Great reliance was placed by the respondents upon the decision in the
second case in the list, Mortimer's Case (1),in the Court of Appeal
and in the House of Lords. But the words in that case are very
different from those in the present. There the clause ran, "or if
there be no such children, that the same be paid to such person or
persons as will then be entitled to receive the same as my next of kin
under the Statute for the Distribution of Intestates' Estates."
James L.J. said(2): "'The words are, 'the same shall be paid to such
persons as will then be entitled,' that is, to the persons to whom the
law would give it. The expression does not denote the persons to whom
the law under certain contingencies would give the title, but the
persons who can allege themselves to be entitled under the statute.
That
(1) 7 Ch. D. 322, 4 App. Cas. 448.
(2) 7 Ch. D. 327.
[*805] was the ratio decidendi in Bullock v. Downes. (1) It appears
to me to be plain that to satisfy that expression you must have a
person who can show a title under the Statute of Distributions, and
the only persons who can show a title under the Statute of
Distributions are the persons who were next of kin at the death of the
testator (who was partially intestate) or the persons who represent
them." And he held that to satisfy such words "the claimants must show
an actual title under the Statute of Distributions."
In the House of Lords Lord Cairns L.C. said(2) that the words amounted
to this: "At the expiration of the preceding limitation you are to
find out the hands into which you are to pay the money, but you must
do that by first ascertaining who were his next of kin at the time of
his death."
Lord Blackburn said(3) that it was even a clearer case than Bullock
v. Downes. (1)
In the present case, for the reasons I have given in dealing with the
language of the clause, I think that the reference is, to borrow Lord
Cairns' expression, to an artificial class of next of kin to be
created.
Hall V.-C. in Sturge and Great Western Railway Co . pointed out(4)
that the judgment of James L.J. in Mortimer's Case (5) depended upon
the particular expressions used, and held (I borrow the language of
the headnote) that where a testator gives property in trust for the
benefit of the persons who at a time subsequent to his own death shall
by virtue of the Statute of Distributions be his next of kin the class
is an artificial class to be ascertained on the hypothesis that the
testator lived up to and died at the subsequent period of time. The
words used in the will in In re Wilson (6)appear to me to be
indistinguishable from those upon which Mortimer's Case (5) was
decided.
In McFee's Case (7), as also in the case of In re Helsby (8).the
bequest was to the persons who at the time should be
(1) 9 H. L. C. 1.
(2) 4 App. Cas. 452.
(3) Ibid. 453.
(4) 19 Ch. D. 449.
(5) 7 Ch. D. 322.
(6) [1907] 1 Ch. 450; [1907] 2 Ch. 572.
(7) 103 L. T. 210; 79 L. J. (Ch.) 676.
(8) 84 L. J. (Ch.) 682.
[*806] the testator's next of kin according to the Statute of
Distributions, and it was held that the class was an artificial class
to be ascertained on the hypothesis that the testator had lived up to
the time in question.
I construe the clause in the present case as having exactly the same
meaning as the clauses in the two cases to which I have just referred.
In the case of In re Mellish (1) the bequest was in favour of the
person or persons who at the decease of the survivor of certain
beneficiaries under the will "shall be of the blood of my said son
George Mellish and of kin to him and who under the Statutes of
Distribution of Intestates' Effects would be entitled to his personal
estate if he were dead unmarried and intestate such persons if more
than one to take in the ****tions prescribed by the same statute."
Neville J. held that the gift was to an artificial class consisting of
the next of kin of George Mellish to be ascertained as if he had died
on the death of the life tenant.
Such authorities are of value chiefly as calling attention to the
points on which the construction of any particular will must turn. We
always come back to the particular words employed in the will in each
case. In my opinion the words of the present will are reasonably clear
and bear the meaning contended for by the appellant. They do not in my
judgment point to the class who were entitled on the death of the
testator but to an artificial class to be determined at the date of
the failure of the trusts in the will.
In my opinion the judgments below should be reversed. Costs of all
parties to be paid out of the estate.
VISCOUNT CAVE. My Lords, the testator at the date of his will was 59
years of age, and had living a wife and three daughters, but no other
issue. By his will dated March 26, 1852, he gave his residuary estate
to trustees upon trust for his wife for life, and subject thereto upon
trust in equal thirds for his three daughters for life with remainder
to their
(1) [1916] 1 Ch. 562.
[*807] children and with cross gifts between them; and the will
proceeded as follows:-
"And I do further direct that on failure of all the trusts
hereinbefore declared of the residue of my personal estate such
residue shall be in trust for such person or persons as on the failure
of such trusts shall be my next of kin and entitled to my personal
estate under the Statutes for the Distribution of the personal estates
of Intestates such persons if more than one to take distributively
according to the said Statutes."
The testator died in the year 1855, and his widow in 1870; and the
last survivor of his three daughters died in 1918. None of his
daughters had issue. The question raised in this case is whether the
"next of kin" referred to in the ultimate trust above set out are to
be ascertained at the date of the testator's death or at the period of
distribution, that is to say, at the date of the death of the last
survivor of the three daughters.
My Lords, upon this question, if I had been concerned simply with the
terms of the will and had been unembarrassed by the decisions
pronounced in similar cases, I should not have entertained any doubt.
If there had been no such antecedent authorities, I should have said
without hesitation that the testator intended his ultimate gift to
benefit persons living at the time when the preceding trust failed to
take effect, that the persons to be so benefited were those who at
that time might be his nearest of kin, but that those nearest of kin
were to be ascertained not by mere proximity in blood but in
accordance with the scheme of the Statute of Distribution, and were to
take in shares to be ascertained in like manner. I should accordingly
have pronounced in favour of the persons who would have been the
testator's next of kin under the statute if he had died at the period
of distribution.
But P. O. Lawrence J. and the Court of Appeal have held the case to be
concluded by authority, and have determined the question in favour of
the testator's statutory next of kin at his death; and it is therefore
necessary to consider
[*808] carefully the authorities upon which their decision was based.
For if those authorities have laid down any rule or canon of
construction which binds this House, it should of course be followed.
The authorities principally relied upon for the respondents are two
decisions in this House - namely, Bullock v. Downes (1)and Mortimore
v. Mortimore. (2) In Bullock v. Downes (1)the words to be construed
were: "Such person or persons of the blood or next of kin of me, the
said Andrew Downes, as would, by virtue of the Statutes of
Distribution of Intestates' Effects, have become and been then
entitled thereto in case I had died intestate." In Mortimore v.
Mortimore (2)the words were: "Such person or persons as will then be
entitled to receive the same as my next of kin under the Statute for
the Distribution of Intestates' Estates."
In each of these cases, therefore, the class of persons to take under
the gift was to consist of persons entitled under the statute, and
this was to be their primary qualification; and in each case the word
"then" contained in the gift was capable of being held, and was in
fact held to refer, not to the time when the class was to be
ascertained, but to the time when the next of kin in question would
come into the enjoyment or receipt of the fund. That this was in each
case the reason of the decision of this House appears from a
consideration of the judgments delivered. In Bullock v. Downes Lord
Cranworth expressed the reasons for his decision as follows(3): "Even
assuming that the word 'then,' as connected with the word 'entitled,'
is to be read as an adverb of time, still the time indicated is not
the time of the death of the testator, but the time when the persons
would come into the enjoyment of that which is bequeathed to them. The
legatees to take on the son dying without issue are not the persons
who would have been entitled if the testator had then died, but those
who would then be entitled if the testator, when he died, had died
intestate." And in Mortimore v. Mortimore Lord Cairns expressed a
similar
(1) 9 H. L. C. 1.
(2) 4 App. Cas. 448.
(3) 9 H. L. C. 19.
[*809] view in the following words(1): "Now, I am quite willing to
look at the word 'then' as if it meant at the expiration of the
preceding limitation, but then what does this amount to? Why, this. At
the expiration of the preceding limitation you are to find out the
hands into which you are to pay the money, but you must do that by
first ascertaining who were his next of kin at the time of his death."
It is evident from the judgments of Hall V.-C. in Sturge and Great
Western Railway Co .(2), and of Parker J. in In re Wilson (3) that
those learned judges took a similar view as to the ratio decidendi in
Bullock v. Downes (4) and Mortimore v. Mortimore. (5)
In the present case the elements which determined the decisions in the
above-mentioned two cases are not to be found. The gift is not to
those persons entitled under the statute who at the date of
distribution may be entitled to receive the fund, but to those persons
who on the failure of the preceding trust, that is to say at the time
of distribution, shall be the testator's next of kin; and unless the
will is to be held as self-contradictory, the words "and entitled,"
etc., which follow must be read not as defining the class to take, but
only as determining the manner in which the next of kin are to be
ascertained. If so, this case is similar to Wharton v. Barker (6),
where the words were: "Unto the person or persons that shall then be
considered as my next of kin and personal representative or
representatives agreeable to the order of the Statutes of
Distribution." In that case it was held that the persons to take were
an artificial class to be ascertained at the time of distribution; and
a similar result was reached in In re McFee (7); In re Helsby (8),
and In re Mellish. (9)
For the above reasons I am of opinion that the order under appeal
should be reversed, and that it should be declared that upon the true
construction of the will of the testator
(1) 4 App. Cas. 452.
(2) 19 Ch. D. 444.
(3) [1907] 1 Ch. 450.
(4) 9 H. L. C. 1.
(5) 4 App. Cas. 448.
(6) 4 K. & J. 483.
(7) 79 L. J. (Ch.) 676.
(8) 84 L. J. (Ch.) 682.
(9) [1916] 1 Ch. 562.
[*810] William Hutchinson the next of kin therein designated to take
the residue of his personal estate on the failure of the trust thereby
declared by his will in favour of his daughters and their children
must in the events that have happened be ascertained as at the date of
the death of his surviving daughter Sarah Hutchinson. The costs of all
parties here and below should be taxed as between solicitor and client
and paid out of the testator's estate.
LORD DUNEDIN (read by VISCOUNT CAVE ). My Lords, much authority has
been and can be cited from cases which bear more or less resemblance
to this. I do not think it necessary to advert to any except to the
well-known list of cl***** of cases given by Thesiger L.J. in his
judgment in Mortimer v. Slater. (1) Now, the clause to be here
construed first of all prescribes the time at which the succession in
question is to open. It is "on the failure of the trusts hereinbefore
declared," then the deed goes on to specify the class; it is "to such
person or persons as on the failure of such trusts shall be my next of
kin, etc." It is, I think, clear that this second repetition of "on
the failure of such trusts" is exactly equivalent to the adverb
"then." That being so, it brings it within the first of Thesiger
L.J.'s cl*****, where the adverb "then" im****ted that the class was to
be ascertained at the time so pointed out - i.e., at the period of
distribution - and it makes it impossible to hold that it falls within
the third class where the adverb is used "not in connection with the
description of the class, but in connection with the time at which the
estate is to come into being," for the function of determining when
the estate was to come into being has been already fulfilled by the
first set of words "on the failure of such trusts."
Then it is said that the sentence does not stop with the words "next
of kin," but goes on to say "entitled to my personal estate under the
Statutes for the Distribution of Personal Estates of Intestates," and
appeal is made to the opinion of James L.J. in the same case to the
effect that these
(1) 7 Ch. D. 322.
[*811] words mean someone who has an active title under the statute,
who can only be one of a class ascertained at the death of the
testator. In that case, however, there was no feature like the
repetition of the words "on the failure of such trusts," and
accordingly the function of the word "then" to designate the opening
of the succession had not been exhausted. It seems to me, therefore, a
more natural reading to hold in the present case that the reference to
the Statute of Distributions is not for the purpose of insisting on
the condition of an active title on the part of the recipient, but to
distinguish between the next of kin at common law and the next of kin
under the rules of this statute.
I therefore concur in the judgment proposed.
LORD ATKINSON. My Lords, the facts have already been stated.
In Hood v. Murray (1) Lord Watson in a judgment concurred in by Lords
Halsbury and Macnaghten, lays down, with his accustomed clearness and
precision, the rule of construction established by the case of
Bullock v. Downes (2)and Mortimore v. Mortimore. (3) The rule, he
said, as he understood it, was simply this, that "in cases where a
testator or settlor, in order to define the persons to whom he is
making a gift, employs language commonly descriptive of a class
ascertainable at the time of his own death, he must prima facie, and
in the absence of expressions indicating a different intention, be
understood to refer to that period for the selection of the persons
whom he means to favour. In my opinion, the rule has no other effect
than to attribute to the words used their natural and primary meaning,
unless that meaning is displaced by the context." In several of the
cases cited expressions were found in the do***ent to be construed
sufficient to express an intention of the settlor or testator
different from this primary intention, and in others insufficient for
that purpose. The question for decision in the present case is to
which of these two cl*****
(1) 14 App. Cas. 124, 137.
(2) 9 H. L. C. 1.
(3) 4 App. Cas. 448.
[*812] does the case belong? In the present case the testator directs,
that on failure of all the trusts thereinbefore declared of the
residue of his personal estate, something is to be done with that
residue. It is this. It is to be held in trust for such person or
persons as on the failure of such trustsshall be the testator's next
of kin. Stopping there for a moment, it would appear to me that the
words "as on the failure of such trusts" indicate a point of time.
They are equivalent to the words "at the time when the failure already
mentioned occurs," or words to that effect. Their meaning might be
effectually expressed by the adverb of time "then," so that the clause
would run - "And I further declare that on failure of all the trusts
hereinbefore declared of the residue of my personal estate such
residue shall be held in trust for such person or persons as then
shall be my next of kin." The authorities, I think, establish that if
the word "then" had been thus used it would be held that the next of
kin the testator had intended to benefit were those who would answer
that description if he had died on the day the failure of all the
trusts had occurred.
In Wharton v. Barker (1) the clause in the testator's will upon which
the question in controversy turned ran thus: "And in case both my said
daughters should die without issue, or, leaving such, all should die
under twenty-one without leaving issue, then, I direct my trustees to
pay one moiety unto the person or persons, that shall then be
considered as my next of kin and personal representative or
representatives agreeable to the order of the Statutes of
Distribution, and the other moiety unto the person or persons that
shall then be considered the next of kin and personal representative
or representatives of my late wife Sarah, agreeable to the order of
the Statutes of Distribution." At the date of the will his daughter
Sarah was the only child and sole next of kin of his late wife Sarah.
This daughter survived the testator and died without issue. It was
held that the persons entitled to the second moiety were those who at
the death of the surviving daughter were the next
(1) 4 K. & J. 483.
[*813] of kin (according to the statute) of the deceased wife, and
that, having regard to the juxtaposition of the bequests, the persons
entitled to the first moiety were those who, at the same period, were
next of kin (according to the statute) of the testator.
It is obvious that the word "then" at the place where it first occurs
meant "in that event" and in both the other places it was an adverb of
time, meaning "at that time." Sir W. Page Wood, as he then was, when
delivering judgment, after having reviewed all the then existing
authorities, is re****ted to have said(1): "In this state of the
authorities I find it recognised in all the decisions, that if, in a
gift to 'next of kin' without referring to their claiming as under an
intestacy, the word 'then' occurs as an adverb of time, referring to
the death of the tenant for life or other event fixed as the period of
distribution, that cir***stance is conclusive evidence that the
testator did not intend the general rule of construction to apply. In
the cases before the Master of the Rolls" (Cable v. Cable (2) and
Wheeler v. Addams (3)), "the Court was of opinion, from the context,
that it was not so used, and must of necessity be construed to mean
'thereupon' 'in that event,' so as to mark the conjunction of
cir***stances; but here I am absolutely precluded from considering the
word 'then' in the clause 'unto the person or persons who shall then
be considered as the next of kin' as marking the conjunction of
cir***stances, by the fact that the same word has previously been used
in that sense in the earlier part of the sentence, 'then I direct that
my said trustees, &c.' So that no possible sense can be given to the
word when it occurs the second time, unless it be read as an adverb of
time." The principle of construction thus laid down in this case has
been many times emphatically approved of and acted upon. In Travis v.
Taylor (4) a testatrix left real and personal estate upon trust, after
the death of her sister, to pay the income thereof to her niece during
her life, and after her death to stand possessed of the said estate in
trust
(1) 4 K. & J. 501.
(2) 16 Beav. 507.
(3) 17 Beav. 417.
(4) (1866) 12 Jur. (N. S.) 791.
[*814] for her children, if any, and in case of her leaving no
childrenthen for such person or persons as should then be her next of
kin, in a course of administration according to the Statute for the
Distribution of Intestates' Personal Effects. The testatrix died in
1842, her sister in 1854, and her niece, childless, on May 15, 1863.
Here the word then is obviously used in two senses. Where it first
occurs it means "in that event" and where it occurs for the second
time it must mean "at that time." It would not make sense of the
provision to give it the meaning of "in that event" in the latter
case. It was held by Kindersley V.-C. that the general rule did not
apply, and that the persons to take would be the testator's next of
kin at the date of his niece's death. In delivering judgment the Vice-
Chancellor said: "The general rule is that where property is given to
the next of kin, the next of kin must prima facie be those who are so
at the time of the death of the testatrix. It appears to me, however,
when I consider the terms of this will and compare them with those in
Wharton v. Barker (1) that the reasoning of Vice-Chancellor Wood there
applies more fully to this case." Kindersley, V.-C. moreover, points
out that in Bullock v. Downes (2) the Lord Chancellor expressly
referred to Wharton v. Barker (1) and did not disapprove of it.
In In re Morley's Trusts (3) the testator gave his residuary personal
estate to his wife for life and after her death directed his trustees
to pay and divide three-fifths of the residue amongst such persons as
under the Statute of Distributions would have become entitled, on his
late father's side at the death of his wife if he had died intestate,
and as to the remaining two-fifths in similar terms, to his next of
kin on his mother's side. Malins V.-C. held that the period for
ascertaining the class to take was the date of the death of the
testator's widow, and not that of the testator himself, pointing out
that his decision was in strict accordance with Wharton v. Barker (1),
and not in conflict with the general rule laid down in Bullock v.
Downes (2), in which there were
(1) 4 K. & J. 483.
(2) 9 H. L. C. 1.
(3) (1877) 25 W. R. 825.
[*815]no words pointing to futurity, as there were in the case he was
deciding. In the case of In re Taylor (1) certain property was
directed to be held by trustees in the events which happened," in
trust for such person or persons as under the Statutes for the
Distribution of the Estates of Intestates shall, exclusive of my said
daughter, C. L., and my grandchild, C. G., and her issue (if any) then
be my next of kin; such persons, if more than one, to take in equal
shares as tenants in common." When the particular event happened on
which the trust came into operation there were living the testator's
daughter and grandchild and a sister of the testator and two nephews,
sons of a deceased brother. It was held by Brett M.R., as he then was,
and Baggallay and Fry L.JJ., reversing Kay J, and following Wharton
v. Barker (2), that the effect of the words "shall then be my next of
kin" was to create an artificial class - namely, those who would have
been his next of kin under the Statute of Distributions had he died at
the time indicated by the word then. In Sturge and Great Western
Railway Co .(3) the testator, who had several children, after
declaring several trusts in favour of each of them and their
respective issue, directed that in the event of any one of his
children dying without issue and without having exercised the power of
appointment by the will conferred upon each child, then as to the
property held in trust for that child and the rent and annual profits
thereof from the time of such decease it should be held in trust "for
the person or persons who at the time of such respective decease of my
children shall by virtue of the Statutes for the Distribution of the
Estates of persons dying intestate be my next of kin, and if more than
one, then in the shares, pro****tions, and manner prescribed by the
said statutes." The testator died in 1844, leaving seven children and
no issue of any deceased child. Frances Sturge, one of his daughters,
died a spinster in May, 1871, without having executed the power of
appointment given to her. Mary Harwood, another daughter, died in the
lifetime of her sister, Frances, leaving
(1) (1885) 52 L. T. 839.
(2) 4 K. & J. 483.
(3) 19 Ch. D. 444. 449.
[*816] seven children, who were alive at the death of this aunt of
theirs. The testator's next of kin at his own death were his seven
children, but the persons who would have been entitled under the
Statutes of Distribution at or immediately after the death of his
daughter Frances, if he had then died, were his five surviving
children and the seven children of Mary Harwood. It was urged in
argument, as it was urged on behalf of the respondents in the present
case, that the case was governed by the decisions in Bullock v.
Downes (1) and Mortimer v. Slater (2), and that those only could take
"by virtue of the statute" who were next of kin of the testator at the
time of his death. But Hall V.-C. said that upon the construction of
the testator's will he, the Vice-Chancellor, could come to no other
conclusion than that the testator had created an artificial class, and
that he intended, and in effect said, "at each of the several periods,
you shall ascertain the class, and then the members of it are to take
in certain modes, but the modes in which they are to take must be
regulated by the Statutes of Distribution as nearly as the existing
cir***stances of the case will admit - the class being different from
that which would have comprised the persons to take if it had been
directed by me to be taken at a different period - viz., at my death."
The Vice-Chancellor's criticism of the decisions in Bullock v. Downes
(1) and Mortimer v. Slater (2) is im****tant and instructive. He said:
"With regard to the authorities which have been referred to" (naming
them), "and more particularly with regard to Lord Justice James's
judgment in Mortimer v. Slater (2), I have to observe that the
decisions depended upon the particular expressions used with respect
to 'such persons as will then be entitled.' That is what Lord Justice
James laid hold of at once in the latter case; and he asked in effect,
'How do you show that you are entitled under the description?' In
order to satisfy the description you must be a person who can show a
title under the statute, and the only persons who can do that are the
next of kin of the testator at his death; and he rested the case upon
no other ground than that." The
(1) 9 H. L. C. 1.
(2) 7 Ch. D. 322.
[*817] Vice-Chancellor in the same case then refers to the remarks of
Baggallay L.J. in reference to the judgment of Lord Hatherley, when
Vice-Chancellor, in Wharton v. Barker (1),and quotes the passage from
Baggallay L.J.'s judgment running as follows: "The Vice-Chancellor
then went into the consideration of the particular words which he
found in that case, and was of opinion that they did clearly and
distinctly point to another period as the period at which the class
was to be ascertained." Hall V.-C. then proceeds: "It appears to me
that the corresponding words here, 'who at the time of such respective
decease of my children shall,' etc., im****t that the class was to be
ascertained at that time. It seems to me to follow as a matter of
course that we have got an artificial class, artificial in the sense
that you must suppose that the testator was looking to a class who
would be ascertained at the time he designated and at no other time;
and that although we find in this case a reference to the 'shares,
pro****tions, and manner prescribed by the Statutes,' yet those words
must give way for the purpose of ascertaining the class at another
point of time than that of the death of the testator, at which the
statute would ascertain them."
The case of Mortimer v. Slater (2) which came to the House of Lords,
under the title of Mortimore v. Mortimore (3), was decided two years
and a half before Sturge and Great Western Railway Co. (4) was ruled
upon by Hall V.-C. Nothing was then said in your Lord****ps' House to
dispose of the Vice-Chancellor's criticism. There was no creation of
an artificial class at all in Mortimore v. Mortimore. (3) The words
to be construed ran simply: "or if there be no such children that the
same be paid to such person or persons as will then be entitled to
receive the same as my next of kin under the Statute for the
Distribution of Intestates' Estates," but here the word "then" does
not appear to me to be an adverb of time at all, but is equivalent to
"in that event."
(1) 4 K. & J. 483.
(2) 7 Ch. D. 322.
(3) 4 App. Cas. 448.
(4) 19 Ch. D. 444.
[*818] My Lords, it would appear to me that almost every word of this
lucid and convincing judgment of Hall V.-C. applies to the present
case.
In the present case a time has been fixed by the testator for the
ascertainment of the artificial class - namely the time when the trust
declared fails. That is not the time at which the natural class, if I
may so describe it, would be ascertained by the Statute of
Distribution, but the words "be entitled to my personal estate under
the Statute of Distribution" cannot have the effect of substituting
the statutory date for the ascertainment of the class for the period
the testator has clearly fixed for the ascertainment of it. The words
"entitled under the Statute of Distribution" must, to use Hall V.-C.'s
language, give way for the purpose of ascertaining the class at a
point of time other than the death of the testator. The point of time
being thus fixed in the present class, the artificial class must
satisfy another condition. Members are not to be the next of kin of
the testator at common law, but must be such persons as would be
entitled under the Statute of Distribution, if the testator had died,
not at the time of his actual death, but at the special time fixed for
the ascertainment of the artificial class.
In In re Mellish (1) a testator who died in 1880 gave by his will
12,000l. upon trust to invest it and pay the income to G. M. for life,
and after his decease to pay the income to E. M., his wife, for life,
and after the decease of the survivor of them upon trust for the
person or persons who at the decease of the survivor should be of the
blood of G. M. and of kin to him, and who would under the Statutes of
Distribution of Intestates' Effects be entitled to his personal estate
as if he were dead unmarried and intestate. It was held by Neville J.
that the gift was to an artificial class consisting of the next of kin
of G. M. to be ascertained as if he had died on the day of the death
of E. M.
That learned judge, after pointing out that the rule in Bullock v.
Downes (2) was expressly stated to be prima facie, and did not
preclude the Court from giving effect to what
(1) [1916] 1 Ch. 562.
(2) 9 H. L. C. 1.
[*819] it found to be the intention of the testator expressed by the
words of his will, says that he is unable to distinguish the case he
was deciding from Sturge and Great Western Railway Co. (1), the
decision of which is based upon Wharton v. Barker. (2)
The decision of Lord Parker, then Mr. Justice Parker, in In re Wilson
(3) does not appear to me to be in conflict with this line of
authorities extending from the year 1858 to the year 1916, but quite
distinguishable from them. The clause in the will upon which the
decision turned ran thus: "I direct that the trust fund and the income
thereof and all statutory ac***ulations of income (if any), or so much
thereof respectively as shall not have been applied under any of the
powers hereinbefore contained or referred to, shall be in trust for
such person or persons as on the death of my said nephew Samuel Eyres
Wilson will be entitled to (sic) as my next of kin under the Statute
for the Distribution of Intestates' Estates."
Lord Parker, in giving judgment, distinguishes the case under
consideration from the case of Sturge and Great Western Railway Co.
(1) He said that if the words in that case had been the same as in the
case before him, he thought Hall V.-C. would have decided differently,
and wound up his judgment by saying: "I have come to the conclusion,
having regard to the use of the express words 'will be entitled as my
next of kin under the statute' that no one will be entitled who cannot
say, 'I am or represent a person who at the death of Samuel Eyres
Wilson was entitled as one of the next of kin of the testator by
virtue of the Statutes.'" On appeal this case was treated as governed
by Bullock v. Downes (4), and it was said that even if the words "at
the death of my nephew" were treated as equivalent to then, they only
referred to the time when persons entitled would come into possession.
The words of the will in that case are wholly different from
(1) 19 Ch. D. 444.
(2) 4 K. & J. 483.
(3) [1907] 1 Ch. 450, 464; affd. [1907] 2 Ch. 572.
(4) 9 H. L. C. 1.
[*820] those in the present case. They are not, it would appear to me,
directed to create an artificial class at all.
On the whole, therefore, I am of opinion that the appeal should
succeed, that the decision appealed from was erroneous and should be
reversed, and that the declaration suggested should be made.
LORD MOULTON. My Lords, the testator in this case died leaving a widow
and three daughters. The earlier dispositions in the will are not
material for the purposes of the present case, which relates solely to
the residue which after the death of the wife is left in trust in
certain pro****tions to his daughters and their issue for life with
cross limitations. The ultimate effect of these provisions is to
prevent the failure of these trusts until all three daughters have
died without issue. This is the event which has in fact happened, and
the question raised in this litigation is the interpretation of the
clause in the will which defines the ultimate gift over in that case.
The clause reads as follows:-
"I do further direct that on failure of all the trusts
hereinbefore declared of the residue of my personal estate such
residue shall be in trust for such person or persons as on the failure
of such trusts shall be my next of kin and entitled to my personal
estate under the Statutes for the Distribution of the Personal Estate
of Intestates such persons if more than one to take distributively
according to the said statutes."
The question we have to decide is what did the testator mean by this
direction? That which first strikes one upon reading these words is
the repetition of the phrase "on failure of such trusts." These words
may have one of two meanings. They may define the event which is to
call into operation the gift over, or they may refer simply to the
time when that gift over shall take effect. It cannot be doubted that
where the phrase first occurs it is used to define the event on the
happening of which the gift over shall come into force. But I am
clearly of opinion that where it subsequently appears it refers simply
to the moment of time when that event
[*821] occurs. To give it the other interpretation would not only
render it mere surplusage but would leave no rational explanation of
its insertion. It may therefore be fully and correctly replaced by the
word "then," seeing that by reason of the earlier words of the clause
the word "then" will mean "on failure of such trusts."
In the events that have happened the clause will therefore read as
follows:-
"Such residue shall be in trust for such person or persons as then
shall be my next of kin and entitled to my personal estate under the
Statutes for the Distribution of the Personal Estate of Intestates
such persons if more than one to take distributively according to the
said statutes."
The earlier words of this description appear to me to fix the
intention of the testator with regard to the class who are to benefit
by the gift. It is to be the persons who would be his next of kin at
the date in question, or, in other words, those who have been entitled
to his personal estate had he died intestate at the date in question.
I can see no other possible interpretation of the words which are in
themselves plain and simple, and thus interpreted they define the
class of beneficiaries clearly and without ambiguity.
The difficulty arises from the words that follow - i.e., "and entitled
to my personal estate under the Statutes," etc. The judgment of the
late Master of the Rolls would have us regard these words as setting
forth a second qualification which persons must possess in order to
entitle them to be included in the class which is to benefit by the
gift over. He considers that the beneficiaries must not only be such
next of kin, but must also have been entitled to the testator's
personal estate as next of kin at the date of his death. Such an
interpretation creates a hopeless contradiction between the two parts
of the clause. To be one of the "then" next of kin the person must be
alive at the date when the clause comes into force, and that cannot
occur until all the next of kin at the date of the testator's death
have died leaving no issue, so that none of those entitled at his
death can be
[*822] among the "then" next of kin. This latter part of the clause
therefore cannot have been inserted for the purpose of defining the
class of beneficiaries (which has been already fully defined) but must
have some other object.
The object of the later words of the clause appears to me to be
evident when one reflects that the clause would not have adequately
expressed the testator's intentions if it had only defined the class
of persons who were to benefit under the gift. It is necessary that it
should also define the shares which the individuals forming that class
should take, and the language of the last words of the clause shows
beyond controversy that they, at least, refer to the mode of
distribution among the members of that class. Looking at it from this
point of view the meaning of the whole becomes plain in spite of the
awkwardness of the language. To ascertain the class you are to find
out who are the testator's "then" next of kin. For that purpose you
must imagine a demise of the testator intestate at the date of the
failure of the earlier trusts, and the first part of the clause we are
construing says that the persons who would share his personal estate
upon such hypothetical demise shall be the persons who are to share in
the residue. The object of the latter part of the clause is to say
that such hypothetical demise shall also determine the shares which
they shall individually take - i.e., they shall take as they would be
entitled to do under the Statutes of Distribution in such a case. The
effect of the whole clause is therefore that the funds shall be
distributed precisely as though the testator had died intestate at the
date when the gift over is to take effect. Thus interpreted the
provision for the distribution of the fund is intelligible and one
which the testator might reasonably be expected to make.
No doubt the clause is clumsily framed but not so clumsily as to
defeat what I am clear was the intention of the testator. Both "next
of kin" and "entitled" are used in relation to the same hypothetical
demise, and not in the strict legal sense which would require them to
relate to a real demise. I do not think that this is in any way a
strained
[*823] interpretation. If the clause be read as a whole it seems to me
to be not difficult to perceive that the word "entitled" relates to
the position of the individuals as next of kin, and means that they
are to claim as such next of kin would be able to claim in the
distribution of an estate. Perhaps it would have been clearer if the
word "and" had been omitted before "entitled," but without that
alteration it is to my mind sufficiently clear that the aim of the
whole of the clause is that the distribution is to be the same in all
respects as though the hypothetical demise had been an actual demise.
Interpreted as above this is not a case which in any way clashes with
the decisions in such cases as Bullock v. Downes (1); Mortimore v.
Mortimore (2); and In re Wilson (3),to which we were referred in the
arguments of counsel. In all of these cases the class is defined by
their being "next of kin" to the testator. In a case of that kind
there is no ambiguity and the words must be given their strict legal
meaning. But in this case it is not so defined. It consists of those
who would be next of kin in case of a hypothetical demise, and who
therefore in the eye of the law are not next of kin to the testator.
The definition of the class is, in my opinion, so clear that the fact
that the testator has spoken of them as being entitled "under the
Statutes of Distribution" cannot confuse it, and we are driven to
accept the further description as being one in which the word
"entitled" is not used in relation to the rights which would follow
upon the actual demise of the testator but to those that would follow
from the hypothetical demise which is the foundation of his definition
of the class of those who are to share in the funds.
I am therefore of opinion that this appeal should be allowed, and that
it should be declared that the persons who would be the next of kin of
the testator, had he died at the date of the failure of the earlier
trusts, are entitled to share in the gift over in the pro****tions and
in the manner that they
(1) 9 H. L. C. 1.
(2) 4 App. Cas. 448.
(3) [1907] 1 Ch. 450; [1907] 2 Ch. 572.
[*824] would have been entitled to share had the testator actually
died at such date.
Order of the Court of Appeal reversed: Declared that. upon the true
construction of the will of William Hutchinson, the next of kin,
therein designated to take the residue of his personal estate on the
failure of the trust thereby declared by his will in favour of his
daughters and their children, must, in the events that have happened,
be ascertained as at the date of the death of his surviving daughter
Sarah Hutchinson. The costs of all parties in the Courts below and
also the costs of the appeal to this House, to be taxed as between
solicitor and client and paid out of the estate.
Lords' Journals, May 4, 1920.
Solicitors for the appellant: Rose, Johnson & Hicks.
Solicitors for the respondents, the National Refuges for Homeless and
Destitute Children: Hawes, Wood & Ware.
Solicitors for the respondents, the trustees of the will of the
testator: Farrar, ****ter & Co.
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