B e f o r e :
LORD JUSTICE BUCKLEY
LORD JUSTICE GOFF
and
LORD JUSTICE EVELEIGH
IN THE HATTER OP THE ESTATE of PATRICK JACOB OSOBA deceased
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ANTHONY OSOBA
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Plaintiff
(Appellant)
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and
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LUKE AMIOLEMEN OSOBA sued as Personal Representative of Patrick Jacob Osoba deceased.
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NORA MAJEKODUMNE (Feme Sole)
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and
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P. ADUBA (Married Woman) Sued as Personal Representatives of Defendants
IRENE OSOBA deceased.
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Defendants
(Respondents)
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ABIOLA OSOBA (Spinster)
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THE OFFICIAL SOLICITOR
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(Transcript of the Shorthand Notes of the Association of Official Shorthandwriters Ltd., Room 392, Royal Courts of Justice, and 2, New Square, Lincoln's Inn, London W. C. 2)
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MR. J. HAMES_Q. C. and MR. REGINAL NOCK (instructed by Messrs. Douglas Wiseman, Karsberg & Co., Solicitors, Barking) appeared on behalf of the Plaintiff (Appellant).
MR. JAMES MUNBY (instructed by The Official Solicitor, London WC2A 1JR) appeared on behalf of the Fourth Defendant (Respondent).
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HTML VERSION OF JUDGMENT
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LORD JUSTICE BUCKLEY: I have asked Lord Justice Goff to deliver the first judgment in this case.
LORD JUSTICE GOFF: This is an appeal by the plaintiff, Anthony Osoba, from an order dated 15th December 1977 of Vice-Chancellor Megarry, whereby he declared upon the true construction of the will of Patrick Jacob Osoba deceased, and in the events which have happened, that the residue of the estate of the testator, situate in England, is held upon trust for the persons other than the testator's mother, named in clause 3 of the said will in equal shares absolutely. The case is now reported in (1978) 1 WLR 791. Those other persons were the testator's widow, and his daughter, the fourth defendant Abiola Osoba.
The will, which is dated 24th June 1960, was executed in Nigeria. It appears to have been drawn by someone having a certain amount of legal knowledge but, whilst possessing the merit of brevity, it is not a very well drawn instrument and is by no means free from ambiguity.
So far as material, it runs as follows. By clause 1, the testator appointed the first defendant, his brother Luke Amiolemen Osoba, and his wife, Irene Osoba, to be his executors and executrix. 3y clause 2 he bequeathed to his wife all his personal chattels provided she is resident in Nigeria so long as she continue to be Mrs. Osoba.
I must read clause 3 in full: "I bequeath to my wife all rents from my leasehold property known as Nos. 7, 9 and 11, Custom Street, Lagos, for her maintenance and for the training of my daughter Abiola up to University grade and for the maintenance of my aged mother provided my wife is resident in Nigeria".
3y clause 4 the testator devised to his daughter Abiola the title right and interest in his house and landed property known as No. 22 Macarthy Street, Lagos.
I must also read clause 5 in full:
"I bequeath and devise the residue of my personal and real property whatsoever and wheresoever to my wife upon trust to be used as in paragraph three above".
Finally, by clause 6, the testator directed his wife to take care of his children by his first wife, each of whom he named, provided they are resident in Nigeria.
The testator died on 21st April 1965 in Nigeria, where he was domiciled. His will was duly proved in the High Court there on 19th September 1966 by the widow, Irene, and the first defendant, and the Nigerian probate was sealed in the Principal Probate Registry of the High Court in this country on 25th August 1967, the estate in England being sworn at £5, 500.
The testator was married twice. By his first marriage he had the three children named in his will, of whom one is the plaintiff, and he claims a partial intestacy as to the residuary estate. This marriage was dissolved by an order of the High Court of Lagos made on 16th December 1955. The testator subsequently married Irene, by whom he had issue one child and no more, the defendant Abiola. As has already appeared, Irene survived the testator, but she died on 7th February 1970, some years before the commencement of these proceedings, and so the first defendant is the surviving Nigerian and English personal representative of the testator. The second and third defendants are the executors of the widow's will. The testator's mother predeceased him.
It appears from a letter dated 8th September 1963, from the testator to his three elder children, that Abiola would be 9 years old on 6th November then next, so that she was a little over 5½ years old when the will was made. In that letter the testator said that she was then in Standard 3, whatever that means, and the plaintiff stated in his affidavit in support of the originating summons, sworn on 16th June 1975, that Abiola was currently studying pharmacy at Ahmadu Bello University, Zaria, Nigeria, her course being due to finish in June 1975. Service of the originating summons was effected on the first three defendants, but it proved impossible to serve Abiola and none of the defendants entered an appearance. In these circumstances an order was made on 15th March 1977 that the further proceedings in this action be carried on by the plaintiff against the four defendants and the Official Solicitor as defendants.
By the order under appeal, though not from this part of it, the Official Solicitor was appointed to represent the interests of the defendant Abiola and of all other persons except the widow's executors, the defendants Nora Majekodunmi and P. Aduba, who are interested in the estate of the testator.
Very difficult questions of construction might have arisen whether the proviso to clause 3 should be read into clause 5 and. whether it applies to the whole gift or only to the benefits taken by the widow, but fortunately for us she was in fact resident in Nigeria at the time of the testator's death, and so no such problems arise.
Some evidence was given of Nigerian law, from which it appears, for all relevant purposes, to be the same as English, but I am not satisfied that this was properly or sufficiently proved. However, it matters not for the moment, because the only apparent residue was a freehold house, No. 1 Avondale Avenue, N. 12, the disposition of which is, of course, governed by the lex situs, and which was valued in December 1977 at about £20, 000. If, however, at any future time it should be held in Nigeria, or for that matter here on Nigerian law proved as a matter of fact, that any Nigerian assets fall into residue, the position would have to be reconsidered as far as those assets are concerned, but I proceed on the basis, as did the case below, that the English house constitutes the whole of the residuary estate.
In my judgment, for the reason I have already given, namely, that the widow was resident in Nigeria, one can, even as a matter of construction, ignore the proviso in clause 3 which does not, I think, assist on anything we have to decide, but subject to that, it seems clear that the words in clause 5, "upon trust to be used as in paragraph three above" must incorporate from clause 3 the whole of the words ". '.. for her maintenance and for the training of my daughter Abiola up to University grade and for the maintenance of my aged mother... ". Moreover, as I see it, all these purposes have failed or determined because the mother and the widow are both deceased, and whatever may be the precise meaning of "up to University grade", Abiola appears, on the evidence before us, to have reached that stage.
Now before I consider the matter in detail, I must say with all respect that I am unable to accept the whole of the Vice-Chancellor's reasoning, and indeed Mr. Munby, who appeared for the Official Solicitor, did not attempt to place his case that high.
The learned Vice-Chancellor said at page 793, between F and G: "It soon became plain that the only real contest was between a partial intestacy and equal division"; and again, at the foot of page 794-:
"I omit the concluding words relating to the maintenance of the testator's mother, since she predeceased the testator"
It may be that this was because of the way in which the argument was developed before him, but with all respect, in my judgment whilst the interest given to the mother failed, it cannot be right to omit the words, since the first question is what is the meaning of the totality of the words used, and it is only when that has been ascertained that one can see whether or not the mother's interest drops out in favour of the others or lapses; nor, in my view, was the only question between partial intestacy and equal division, for the question arises: equal division or joint tenancy?
The learned Vice-Chancellor devoted a not inconsiderable part of his judgment to an attempt to reconcile Re Abbott, (1900) 2 Chancery, 326, with Re Andrew's Trust, (1905) 2 Chancery, 48, and to seeing which more nearly approximates to the present case. But I do not think it was really necessary for him, nor do I consider it necessary for us, to embark upon any such exercise. Both cases may well have been right on their particular facts, but as the learned Vice-Chancellor himself correctly pointed out, what has to be done in this case is to construe the will of the testator and endeavour to ascertain his intention from the words he has used, of course, in the light of such knowledge of relevant facts as we know he must have had.
Those cases are relevant for present purposes so far only as they lay down any principle of construction which is applicable to the testator's will. Re Abbott does not, I think, do this at all. True it is that the money was provided for the maintenance of the two ladies therein mentioned, but the court came to the conclusion, not as a matter of construction of the documents by which subscriptions had been sought, but as an inference from all the facts, that the subscribers who had provided the fund could not have intended to make an absolute gift of the aggregate collection, but merely to provide for the ladies during their joint lives, and for the survivor during the residue of her life.
Re Andrews, on the other hand, did establish a principle of construction, or rather applied one then already long established, in these terms; I cite from page 52 of the report: "'There are two classes of cases between which the general distinction is sufficiently clear, although the precise line of demarcation is occasionally somewhat difficult to ascertain. If a gross sum be given, or if the whole income of the property be given, and a special purpose be assigned for that gift, this Court always regards the gift as absolute, and the purpose merely as the motive of the gift, and therefore holds that the gift takes effect as to the whole sum or the whole income as the case may be'". Mr. Justice Kekewich was there himself citing from the judgment of Vice-Chancellor Page Wood in Re Sanderson's Trusts, 3 Kay & Johnson at page 503.
In my judgment the decision in this case depends upon the ambit of that principle and of another one similar thereto, of which Barlow v. Grant (1684) 1 Vernon, 255 is an early example, and their applicability to the testator's language in the present case.
The learned Vice-Chancellor Page Wood said in Re Sanderson, that the principle is always applied. That, I think, was putting it too high as it is not a rule of law, but in the absence of context, to which of course it must yield, or perhaps very special circumstances, it is a long established and oft applied principle which I would not seek to whittle away. Of course, it is possible to imagine examples where the application of the principle would appear to be ridiculous, and a number were suggested in argument. If and when such a case does in fact arise it can be argued and decided, for as I have said, the principle in Re Sanderson, is not a rule of law, but in all ordinary circumstances and in the absence of a contrary context, it must in my view be applied.
The initial question of construction is, then, whether the words in this residuary clause do indicate an intention to make a gift with a superadded expression of purpose, and I start with this, that where there is but one beneficiary and the purpose is that of maintenance or education, that is tantamount to a gift to the beneficiary and the purpose is accordingly disregarded; see, for example, Webb v. Kelly, 9 Simon, 4-69 at page 4-72, where Vice-Chancellor Sir Lancelot Shadwell said: "I think that a gift for the maintenance and education of the legatee is an absolute gift"; and Lewes v. Lewes, 16 Simon, 266 at page 267, where the same Vice-Chancellor said:
"I think that there is no sensible way of dealing with this case except by taking the words 'for the maintenance, clothing and education' to be equivalent to 'for the benefit of the children'".
If, therefore, the trust had been simply to be used for her, that is the widow's, maintenance, it seems to me that the principle of Re Sanderson's Trust, and Barlow v. Grant, must be applied, and she would have taken the whole residue absolutely.
Then it seems to me that as a matter of construction it can make no difference that the trust was to use the property for the maintenance of the aged mother as well, for the intention to make an absolute gift is the same, albeit it is made to two people, not one only. Thus in Presant v. Goodwin, 1 Swabey &, Tristram, 544, the principle was applied to a bequest of "all my remaining property to be invested and appropriated to the education of my sister Juliana's children as shall seem most meet and beneficial to them by the executor and executrix of this my will, recommending to them that the boys receive a classical education to fit them for the learned professions, and the girls to fit them for the purpose of teaching in respectable private families, or in schools of the first respectability"; see also per Lord Macnaghten, giving the judgment of the Privy Council in Williams v. Papworth, (1900) AC 565.
So the crux of the matter is the inclusion of "the training of my daughter Abiola up to' University grade".
The suggestion was canvassed in the course of the argument whether perhaps clause 5 might be construed as a gift to the widow, subject to a trust or condition requiring her to make adequate provision for the discharge of the other two purposes, or perhaps a gift to the widow and the mother subject to such a trust or condition in favour of Abiola. In my view, however, these are not possible constructions. All the purposes are governed by the same operative verbs "to be used", and in my judgment they must all be of the same quality, albeit different in ambit. Moreover, I think the order of the words, with the provision for Abiola in the middle of the three purposes, also tells against this view.
For a similar reason I also reject an alternative way in which Mr. Nunby presented his argument that this should be construed as a gift to the three named persons, subject to a power given to the widow as trustee to reduce the quantum of the residuary trust estate by taking money out wherewith to perform all or any of the stated purposes. In my judgment either this is a gift to all three on the principle of Re Sanderson, as Mr. Munby submits, in which case the expressed purposes are no more than purpose or motive; or the whole is, as Mr. Hames contends, simply a purpose trust, leaving any surplus capital or income undisposed of by the will. I do not see how the words "to be used" can operate to make a gift to one or more of the named beneficiaries and as a trust or power with regard to the other or others.
We were also referred, as was the learned Vice-Chancellor in the court below, to the case of Re Foord, (1922) 2 Chancery, 519, as supporting a possible argument that the widow is now absolutely entitled, but that was a very different case, where there was an absolute gift to A in the first place, upon trust to pay 3 an annuity. It was distinguished from the present case by the learned Vice-Chancellor, and in my judgment rightly so.
So in the end the primary question is short and straight-forward, namely whether, as Mr. Hames argues, because the purpose in Abiola's case is different from that in the other two, and unlike maintenance is definitely finite though the beneficiary be still alive, the Re Sanderson principle is excluded; or whether, as Mr. Munby argues, the trust creates an absolute gift to the three named beneficiaries. Mr. Hames fortified his argument by observing that clause 4 of the will shows that when the testator intended to make an absolute gift he knew quite well how to do so. I agree that clause 5 must, of course, be construed in the context of the will as a whole, hut I see nothing in this argument to deflect me from the clear conclusion which I am about to reach on the construction of the wording of clauses 3 and 5, with the guidance of the authorities to which I have made reference.
Having regard to Abiola's age at the date of the will, the purpose in her case is one which the testator could well have contemplated would, or might, exhaust a fair proportion of the fund. It is, moreover, one conferring an extensive and continuing benefit on Abiola, and it seems to me it is at least as much a provision for her benefit which ought to be treated as a gift with a superadded purpose which should be disregarded, as the provision for placing out the beneficiary as an apprentice: see Barlow v. Grant, 1 Vernon, 255, which I have already mentioned; and Barton v. Cooke, 5 Vesey, 461, or that of purchasing a commission in Cope v. Wilmot reported as a note to Thompson v. Thompson in 1 Collier, 396. That case caused Vice-Chancellor Page Wood some difficulty in Re Sanderson, but that was because the Court had overridden the discretion given to the trustees under which, prima facie, they had power to use less than the maximum specified sum of £3,000. Commenting on that case at page 506, Vice-chancellor Page Wood observed that the purpose was large, and Mr. Hames relied upon that in support of his argument. But so it was here, as it seems to me, at least having regard to Abiola's age.
The learned Vice-Chancellor Megarry said, at page 796 at E:
"In those circumstances I should be reluctant to read his will as showing an intention that once his daughter's training up to university level was at an end she was to have nothing more, and there should be no further testamentary provision for her. I do not think that the words relating to using the residue for Abiola's training and the maintenance of the widow show that any residue not required for these purposes was to be withheld from Abiola and the widow".
Subject to the observation that the will also provided for the mother, I would respectfully agree with that view.
The Barlow v. Grant type of cases, which were approved by Vice-Chancellor Page Wood in He Sanderson (see page 503) and also in Presant v. Goodwin, 1 Swabey & Tristram (see page 548), are of very long standing and in my judgment ought not now to be disturbed, even if (which I doubt) I would disagree with them were they recent.
In my judgment, therefore, upon its true construction clause 5 of the will created a trust for the benefit of the widow, the daughter and the mother absolutely. This conclusion is indeed very strongly supported by the case of Presant v. Goodwin, to which I have just referred. In the first place, the education there provided for was finite. Secondly, the learned judge relied upon the fact that he was dealing with a residuary gift. In the present case the learned Vice-Chancellor said, at page 795 between C and D:
"I would not place any great weight on the so-called presumption against intestacy; but I would lean towards construing a testamentary gift of residue as being wholly effective and not as leaving some part of the property given to pass as on intestacy",
which I think is correct; and in the Presant case in the Court of Probate, I observe that Sir Cresswell Cress-well said at page 547:
"By the words 'all my residuary property' it is manifest that the testator intended to deal in some manner with the whole of his residuary estate".
Thirdly the education there contemplated was finite in character. Fourthly, on page 548, Sir Cresswell Cresswell said:
"Another argument for the defendant was that the gift in this will is not to the children of the testator's sister, but to the executors to be appropriated by them. Many of the cases cited were of that description and no such distinction appears to have been thought of".
So here, the fact that the gift is to the widow in trust does not, as it seems to me, in any way prevent the named beneficiaries, including herself, from taking an absolute beneficial interest as Joint tenants, or tenants in common, under the trust.
There remains the question how the three parties took as between themselves. The learned Vice-Chancellor held that the widow and the daughter took in equal shares, that is, as tenants in common, and in reaching that conclusion he drew support from Andrew's case. That case is in many respects unsatisfactory, since the children had agreed upon an unequal division to compensate them respectively for differing amounts which had been expended out of their shares in their father's estate. Mr. Justice Kekewich said that he would allow an equity of recoupment if, apart from such equity, the fund belonged to other persons, since otherwise there would be no ground for it. Then, having decided that no stranger was involved, he proceeded to hold that the children were entitled in equal shares, apparently ignoring their agreement and the fact that he had premised at page 51 that if they were masters of the fund what they proposed could be done by agreement. Possibly difficulty arose because one of the children was bankrupt. Be all that as it may, the question whether they took as tenants in common or as joint tenants did not arise, because all had survived and they now wished to have the fund divided.
In Wilkins v. Jodrell, 13 Chancery Division, 564, on the other hand, Vice-Chancellor Hall held (see page 573) that the class to be maintained and educated took as joint tenants, though this was not directly in issue.
However, there are here no words of severance and, therefore, in my judgment the three named persons took the whole residue beneficially as joint tenants, and so the mother did indeed drop out and it is unnecessary for me to consider whether, had I found that there was a tenancy in common, her share would have lapsed in accordance with the ordinary rule, or whether, as Mr. Munby suggested, this is a case in which there would be no lapse. Moreover, unless the widow or Abiola severed the joint tenancy, Abiola is now entitled to the whole as surviving joint tenant.
I think the proper order is to vary the order below by declaring that the widow and Abiola became entitled on the death of the testator to the whole residuary estate as joint tenants, and leave it there. However, the widow's representatives have not seen fit to appear or to put in any evidence to show severance, and it might be proper to go on to declare that in the events which have happened Abiola is now entitled to the whole as survivor. I would hear Mr. Munby on that if he should wish for such an order.
I do not know how the clause 3 property has been applied as between the three beneficiaries, and it may be that questions of marshalling could arise and the declaration must be without prejudice to any such question.
It is also unnecessary in the result for me to consider the further question whether, had there been a partial intestacy, beneficial interests in Nigerian property would have had to be brought into hotchpot; but for what it is worth, as at present advised, I would respectfully agree with the learned Vice-Chancellor's view that it would.
LORD JUSTICE EVELEIGH: I agree.
I would only add that two matters have played an important part in my conclusion, namely, the age of Abiola at the date of the will and the fact that we know enough about the testator's circumstances to conclude that he might well have taken the view that the fund would be exhausted by the objects.
I agree with the judgment that has just been delivered.
LORD JUSTICE BUCKLEY: I also agree. If the testator had given his residue in trust to be used for the maintenance of his wife, his daughter and his mother simpliciter, there could, I think, have been no doubt that the three ladies, if they had all survived him, would have become entitled to the residue absolutely as joint tenants. Maintenance is so wide and general a kind of benefit that a gift of a fund for maintenance of A without more confers upon A an absolute beneficial interest in the whole.
In Williams v. Papworth, [1900] AC, 563, a case before the Judicial Committee of the Privy Council, land had been settled upon trust to pay an annuity to a lady during her life and after her death to apply the annuity for the maintenance and education of her children. It was contended that the trust for the benefit of the children was void for remoteness, one member of the class having been born after the date of the settlement. It was argued that on the true construction of the settlement the trustees had a discretionary power of apportioning the annuity amongst the children, who consequently had uncertain interests until the class became reduced to one.
Lord Macnaghten said at page 566:
"It was argued by the learned counsel for the appellant that the limitation in favour of the children, one of whom was born after the date of the deed, was void for remoteness. They said that, according to the true construction of the settlement, the trustees had a discretionary power of apportioning the annuity among the children according to their several necessities, and that, consequently, until the class became reduced to one individual the children had only an uncertain and unascertained interest. 'They relied upon the use of the word 'applied', and upon the direction that the annuity was for 'maintenance and education'. 3ut the word 'applied' does not import a power of selection; it simply means 'devoted to' or 'employed for the special purpose of. Nor is a provision for the maintenance of adults anything more than a provision for their benefit".
See also Jarman on wills, 8th Edition at page 882.
The circumstance, however, that the testator in this case limited the purpose for which he gave an interest in his residue to his daughter, makes this simple approach inappropriate. One must consider what the effect of this is upon the daughter's interest and what effect, if any, this has upon the interests given to the other two ladies. None of the three benefits is expressed to be subject to any other of them, nor is any power or discretion expressly conferred upon the testator's wife, who is the trustee of the fund. That clause 5 of the will creates a trust cannot be doubted. So the testator's wife takes beneficially no greater interest than the trust confers upon her.
Counsel has submitted that the trusts in favour of the daughter entitles her to no more than the payment of whatever sums might be necessary to pay for her education "to University standard", and that accordingly the trusts for the maintenance of the testator's wife and mother should also be limited to such amounts as might be required for their respective maintenance from time to time during their respective lives.
Such a construction would give rise to some obvious problems. To what standards should the wife and mother be maintained? How far, if at all, would this rest in the discretion of the trustee, who would have a personal interest in the exercise of the discretion? The gift is of course not limited to income, but if the income were insufficient to pay the cost of the daughter's education and to provide for the maintenance of the wife and the mother at suitable standards, at what rate should the trustee have recourse to capital? And should any of the three purposes take priority over the others to any, and what, extent?
Fortunately in my view these problems do not arise, because in my judgment it is erroneous to suppose, notwithstanding the language of the will, that the daughter's interest is limited in the way suggested.
Had the trust for the daughter's benefit been the only trust declared in respect of the testator's residue, she would in my judgment have become entitled to the whole residue beneficially upon the testator's death.
The principle of construction which applies in such cases is explained in Roper on Legacies, 4th Edition, at page 646, where I find this:
"Where a legacy is given to a person to answer a particular purpose to which it becomes impossible to appropriate it, but from no fault of the legatee, he would be entitled to the money; as in instances of a sum of money being left for the benefit of an infant as an apprentice fee and he is never placed in the situation or character of an apprentice; or where a legacy is given to a person to assist him in defraying the expenses necessary to secure priest's orders and he becomes a lunatic -in each case the legacy will vest at the testator's death, and upon this principle: it is considered that the property was intended for the legatee at all events, and that the mode directed for its application was merely a secondary consideration and independent of the gift".
If a testator has given the whole of a fund, whether of capital or income, to a beneficiary, whether directly or through the medium of a trustee, he is regarded, in the absence of any contra indication, as having manifested an intention to benefit that person to the full extent of the subject matter, notwithstanding that he may have expressly stated that the gift is made for a particular purpose, which may prove to be impossible of performance or which may not exhaust the subject matter. This is because the testator has given the whole fund; he has not given so much of the fund as will suffice or be required to achieve the purpose, nor so much of the fund as a trustee or anyone else should determine, but the whole fund. This must be reconciled with the testator's having specified the purpose for which the gift is made. This reconciliation is achieved by treating the reference to the purpose as merely a statement of the testator's motive in making the gift. Any other interpretation of the gift would frustrate the testator's expressed intention that the whole subject matter shall be applied for the benefit of the beneficiary. These considerations have, I think, added force where the subject matter is the testator's residue, so that any failure of the gift would result in intestacy. The specified purpose is regarded as of less significance than the dispositive act of the testator, which sets the measure of the extent to which the testator intends to benefit the beneficiary.
This reasoning is as applicable to a gift of the whole of a fund for the maintenance of a named person as to a gift for any other purpose although, for reasons which I have already indicated, the same result may be reached by another route which eliminates any possible conflict between the gift and the stated purpose.
Accordingly, in my judgment, the trust declared by clause 5 of the testator's will must take effect as a trust for all the three ladies absolutely. They are thus constituted joint tenants, for there seems to me to be nothing here to indicate a severance of their interests so as to make them tenants in common. Consequently, the fact that the testator's mother predeceased him does not occasion a lapse; the two survivors, the wife and the daughter, became entitled upon the testator's death to his residue as joint tenants. There is nothing to indicate that the joint tenancy was severed during the wife's lifetime. If there were no severance, the daughter became beneficially entitled to the whole upon the death of her mother, but we cannot so decide on the material before the court. Unless the matter can be disposed of by agreement, or unless Mr. Munby can otherwise persuade us, there will have to be an inquiry whether there was any severance in the mother's lifetime.
This construction of the trust is not, in my opinion, in any way affected by the proviso to clause 3 of the will. It is hard to say precisely what this oddly placed proviso was meant to achieve. It is capable of being read as qualifying the whole clause, or as qualifying only the interest of the testator's mother, or, it has been submitted, as qualifying only the interest of the testator's wife. It is capable of being read as relating to the state of affairs at the testator's death, or as operating as a condition subsequent which might terminate whatever interest, or interests, it qualifies in the event of the testator's wife ceasing at any time after his death to reside in Nigeria.
I find great difficulty grammatically in reading the proviso as qualifying only the interest of the wife. It is wrongly placed in the sentence to do so. If it was intended to qualify either the whole clause or the interest of the testator's mother only, it would operate very arbitrarily if it related to the state of affairs at the testator's death.
The most reasonable interpretation appears to me to be to treat it as a condition subsequent, applicable only to the maintenance of the testator's mother, the idea being that the wife should care for the mother but only for so long as she could conveniently do so, being resident in the country where the testator evidently expected his mother to be.
In fact the testator's wife appears to have been resident in Nigeria at all possibly relevant times, so the proviso can only be relevant for the purposes of construction, but I see no reason why it should have any bearing on the question whether the three ladies, had they all survived the testator, would have taken the residue as joint tenants or as tenants in common lie have been referred to no authority suggesting that it would do so, and I have found none from my own researches. I see no reason in principle why the proviso, however construed, should not be equally appropriate to either a Joint tenancy or a tenancy in common, and I agree with the order that has been suggested by Lord Justice Goff.
(Order: Order of Vice-Chancellor Megarry varied in accordance with terms of judgment; junior counsel to agree and sign a minute as to an inquiry into the questions of severance and marshalling; order for taxation on common fund basis for purposes of legal Aid Act, to be paid out of residue")
