England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
(CHANCERY DIVISION)
PROUDMAN J
(2011) EWHC 63 (Ch)

		Royal Courts of Justice Strand, London, WC2A 2LL
		18/01/2012

Lady Justice Arden:

1. This appeal is about a clause in a will known as a "name and arms clause", which I will call a "NAC". In it, the testator declares that the heir to specified estates devised by his will must use the testator's name and bear his coat of arms. If necessary, the heir must acquire the right to do this. To incentivise the heir to take this step, there may be a forfeiture provision should the heir fail to adopt the name and arms of the testator. The clause in the present case has already been challenged as uncertain in 1961 in proceedings in the Chancery Division. Those proceedings came before Wilberforce J, as he then was, and Wilberforce J made an order declaring that the NAC was not invalid for uncertainty: see [1961] Ch 507. A NAC clause is today very unusual, certainly in the current experience of this court. As Wilberforce J said in his judgment, one of the great things about the British way of life is that it is open to a testator to impose an "eccentric" clause of this kind (at p.523). The court must enforce it in accordance with the law.
2. The appeal is from the order of Proudman J. The judge gave a very clear and concise analysis of the background and issues in this case. In addition, the judge made some important findings of fact, from which no appeal is brought. The judgment explained, as is the case, that the issue before the court then and on this appeal, was simply a preliminary issue about the construction and effect of the NAC. There are other issues in the litigation. I share the view expressed in paragraph 2 of the judge's judgment:

"This is a very sad case in that the claimant and the defendant, son and father, have fallen out in a very bitter dispute. The claimant seeks to recover what he sees as his rightful inheritance, alleging that the defendant incurred a forfeiture under the name and arms clause but that it was hidden from him by the defendant, past trustees and past lawyers. He says he only discovered the true position relatively recently when, with great difficulty, he managed to obtain access to trust files. He says if it had not been concealed from him, there would have been no need for him to enter into an Individual Voluntary Arrangement in 1993 and he would not have been adjudged bankrupt."

3. The NAC is to be found in the will of Philip John Canning Howard, the Respondent's great grandfather, who died on 22 April 1934. What is remarkable is the myriad of possibilities for which the testator chose to make provision. The testator provided for the possibility that the heir might be an infant. He might already be a peer. He might already have the name Lawson, which was in fact the name of his daughter's husband. The heir might die within a year of becoming entitled. The heir might be a married woman in which case provision had to be made for a change of name by her husband. The interest of the heir might be a tenant for life or tenant in tail male or tenant in tail general. The heir might adopt the Howard name but within the year drop it or use it only for certain purposes.
4. That description will serve as an introduction to, and guide through, what the judge termed the "tortuous" drafting of the NAC. Even the best drafter, however, sometimes nods and leaves some matter ambiguous. So it is, on the Appellant's case, in this apparently comprehensive clause. The judge noted that there had been several counsel's opinions on the interpretation of the NAC. We have rightly not been shown any of those. The sheer number of permutations considered by the NAC to my mind demonstrates also that the testator was concerned to ensure that the clause be effective and apply to every heir. This can only have been in order to secure, so far as humanly possible, the continued attachment of the ancient Howard name and arms to the holder of his extensive estates.
5. The NAC provides:


 


"I DECLARE that every person (other than Lady Lawson or a peer or peeress) who under the limitations hereinbefore contained becomes entitled as tenant for life or as tenant in tail male or in tail general by purchase to the possession or to the receipt of the rents and profits of my settled estates or any part thereof and does not at the time of becoming so entitled use and bear the surname and arms of Howard shall within one year after becoming so entitled or (being an infant) within one year after attaining the age of twenty one years and also every person (other than…Sir Henry Joseph Lawson or a peer) being the husband of a woman becoming so entitled shall within one year after his marriage or within one year after his wife becomes so entitled or if he be an infant then within one year after attaining the age of twenty one years (whichever of the three last mentioned events last happens) unless in any case prevented by death take use and bear [and every person becoming so entitled who already uses the name of Howard shall continue to use and bear] in all deeds and writings which he or she shall sign and upon all occasions the surname of Howard as to every such person who shall also for the time being be entitled to the possession or receipt of the rents and profits of the Lawson family Estates in the County of York and elsewhere or upon whom the Baronetcy held and enjoyed by …Sir Henry Joseph Lawson shall devolve in conjunction with the surname of Lawson and so that the surname of Howard shall immediately precede the surname of Lawson and as to every other such person without any other surname and shall also use the arms of Howard As to every such person who shall also for the time being be entitled to the possession or the receipt of the rents and profits of the Lawson Family Estates aforesaid or upon whom the said Baronetcy held and enjoyed by … Sir Henry Joseph Lawson shall devolve quartered with the Lawson Family arms and as to every other such person without any other arms and every such person if not having already borne and used the surname and arms of Howard shall apply for and endeavour to obtain the Royal Licence or take such other steps as may be requisite to authorise the user and bearing of the said surname and arms"

[forfeiture provision] AND FURTHER that in case any person or the husband of any person becoming so entitled (other than Lady Lawson and…Sir Henry Joseph Lawson and not being a peer or peeress) and not having already taken or used and borne such surname and arms should refuse or neglect within the time aforesaid to take use and bear the same respectively or to take such steps as aforesaid or if any person or the husband of any person so entitled and using or bearing such surname and arms should discontinue to use and bear the same (except in the case of a woman upon marriage) then and in every such case immediately after the expiration of the said term of one year or immediately after such discontinuance as aforesaid as the case may be if the person who or whose husband shall so refuse or neglect or discontinue as aforesaid shall be tenant for life the estate for life of that person shall absolutely determine and if the person who or whose husband shall so refuse neglect or discontinue as aforesaid shall be tenant in tail male or in tail general then the estate in tail male or in tail general of that person shall absolutely determine and my settled estates shall immediately go to the person next in remainder under the limitations hereinbefore contained in the same manner as if in the case of a person whose estate for life is so made to determine that person were dead or in the case of a person whose estate in tail male or in tail general is so made to determine that person were dead or there were a general failure of issue of that person inheritable to that estate which is so made to determine." (emphasis, line numbering, square brackets and the words "[forfeiture provision]" added)
 


6. The testator was entitled to a number of landed estates. At the time of his death, the heir to these estates was the testator's only child, Ursula, whose first husband was Sir Henry Joseph Lawson Bt. They had three children: Aurea, Mary and William. On the death of Sir Henry Lawson, Ursula married a Colonel Levin but there were no further children. On Ursula's death on 5 January 1960, the Howard estates were divided between Ursula's three children. William, however, contended that the NAC was void for uncertainty and took no action to comply with it within the time specified. It was at this time that Wilberforce J was asked to determine the validity of the NAC as referred to in paragraph 1 above, and he declined to hold that it was invalid, with the result that William was deemed to have forfeited his entitlement on 5 January 1961. William's son, Sir John Howard-Lawson Bt, born John Philip Lawson, hereafter "Sir John", became the life tenant of the part of the Howard estates vested in his branch of the family. The appellant is Sir John's son, Mr Philip Howard, hereafter "Philip". Philip was born in June 1961. Philip is represented by Mr Christopher Pymont QC on this appeal, and Sir John by Mr Robert Pearce QC.
7. Philip's case is that Sir John, too, failed to comply with the NAC. Sir John made the requisite application to the College of Arms to change his name from Lawson to Howard and to bear the arms of Howard. (When in due course he succeeded to the Lawson baronetcy he further changed his name to Howard-Lawson, as permitted by the NAC, line 20.) The procedure for changing his name to Howard entailed inquiries from the Home Office as to his pedigree and also that of his cousin, Aurea's son, Dennis Waterkeyn, who wished to make a similar application so that he could inherit his family's share of the Howard estates since he was at risk of being disinherited in certain circumstances. In addition there had to be an application in each case for a Royal Licence. The College of Arms had to make the necessary application in each case for this with a petition signed by the petitioner.
8. On the findings of the judge, Sir John applied to the College of Arms at the beginning of October 1961 with a view to obtaining permission to adopt the Howard name and arms. The Home Office gave permission to proceed in November 1961. Due to delays caused by Mr Waterkeyn, the petition was not lodged until after the expiry, on 5 January 1962, of the year allowed to Sir John following the forfeiture of his father's interest. The Royal Licence was signed on 26 April 1962 and issued on 3 May 1962. It authorised Sir John to take up both the Howard name and the Howard arms.
9. The operative provisions of the Royal Licence were as follows:

"ELIZABETH THE SECOND, by the Grace of God of the United Kingdom of Great Britain and Northern Ireland and of Our other Realms and Territories QUEEN,

KNOW YE that We of Our Princely Grace and Special Favour have given and granted and do by these Presents give and grant unto the Petitioner, the said John Philip Lawson Our Royal Licence and Authority that he may take use and bear and henceforth continue to use and bear the surname and Arms of Howard only in lieu of his present surname and Arms and that such surname and Arms of Howard only may in like manner be taken and used and borne by his issue: the said Arms being first duly exemplified according to the Laws of Arms and recorded in Our College of Arms: otherwise this Our Licence and Permission to be void and of none effect:"

10. The formalities were completed by publication of Sir John's change of name in the London Gazette on 1 June 1962 and by "formal exemplification" of the arms on 10 September 1962. Sir John took on the Howard name and arms of Howard within a short time of the Royal Licence being granted. The judge also found that on occasions he had used the Howard name before that date.
11. Both sides agree that merely assuming the Howard arms, without having the right to bear them, would not have satisfied the NAC. Both sides agree also that Sir John had to apply for the Royal Licence in order to have the right to bear the Howard arms. However, Philip's case is that Sir John could have changed his surname without a Royal Licence within the year and that that was required by the terms of the NAC. Sir John's case is that it was conventional to apply for a Royal Licence to use both name and arms, as indeed is recognised by the terms of the NAC. Furthermore, having taken that course, Sir John contends that it would have been discourteous to the Crown to use the Howard name before a decision on the petition had been made. Both sides, however, agree that if an heir, having taken the appropriate steps, finds it impossible to obtain the requisite Royal Licence, forfeiture does not occur. That is significant because it is a recognition by the testator that he may not indeed be able to achieve the desired attachment of his name and arms to his estates after his death.
12. It is also common ground that the only date on which the circumstances giving rise to forfeiture are to be tested is the last date of the year specified in the NAC, in this instance, 5 January 1962.
13. What is the correct approach of the court in construing the NAC? The NAC appears in a will and in my judgment it must be interpreted in the same way as any other similar clause in a will. There is no presumption in favour of forfeiture and likewise, as Mr Pymont submits, there is no presumption operating the other way, that is, against forfeiture. It may, however, be appropriate to interpret the forfeiture provision so as not to include matters that are not clearly within it (see Bromley v Tryon [1952] AC 265 at 276). The object of the interpretation exercise is to ascertain the settlor's intention as appearing from the words he has used and by interpreting the NAC as a whole in the context of the will and the circumstances surrounding its execution that it may reasonably be expected were known to the testator. As Blackburn J put it in Grant v Grant (1870) LR 5 CP 727 at 728:

"The will is the language of the testator, soliloquizing, if one may use the phrase, and the Court in construing his language may properly take into account all that he knew at the time, in order to see in what sense the words were used."

14. As a matter of first impression, it seems to me that Sir John sufficiently complied with the forfeiture provision by instructing the Chester Herald at the College of Arms to seek to obtain the necessary Royal Licence. The forfeiture clause requires the person taking under the will to "apply for and endeavour to obtain" the Royal Licence within a year. It does not state that the petition for a Royal Licence must be presented to the Queen within a year. Moreover, the heir, on the face of the NAC at least, is given the right to take alternative courses of action. He may either start to bear the arms and to use the name of Howard (being already entitled so to do) or he can take steps to "apply for and endeavour to obtain" (lines 30 to 31 of the NAC) the Royal Licence to enable him to do so. The judge did not express a view on the meaning of the word "apply" but assumed that it was not limited to the presentation of the petition for the Royal Licence. I agree with her assumption. Mr Pymont urged on us that the word "apply" meant to present the petition (and this was his alternative case for saying that the judge's order was wrong). I do not accept that argument. The word "petition" is not used. The word "apply" clearly bears a looser meaning than 'present the petition', and is, therefore, of wider application. Moreover, as Kitchin LJ pointed out in the course of argument, the fact that the heir is obliged to take steps supports this interpretation, since the presentation of the petition is a matter handled by the College of Arms. Therefore, once an application has been made to the College of Arms, there are few, if any, steps that the heir could take to accelerate the process. In addition, by the time the petition is presented, vesting had taken place.
15. My Pymont puts at the forefront of his submissions the argument that the obligations imposed on the heir are two independent obligations, namely to take the name and to bear the arms of Howard. Mr Pymont submits that the failure to comply with either one of these conditions will result in forfeiture. His primary case is that there is, therefore, an independent obligation to take the name within a year of becoming entitled. This can be done without any great formality and certainly no formality has been prescribed. On this view, if an heir applied for a Royal Licence to use a name as well as the right to bear the arms of the testator, and (as in this very case) he failed to get a positive response to his application before the period of one year specified in the NAC, he was required nonetheless to switch horses and change his name by some other method within the year. This interpretation, Mr Pymont submits, is underscored by the obligation of the heir to take and use the name "in all deeds and writings which he or she shall sign and upon all occasions" (line 16). Mr Pymont submits that the decision that the testator has evidently made is that the heir should adopt the Howard name as soon as possible and independently of whether he had also achieved success in obtaining the right to bear the Howard arms. The testator inserted the forfeiture clause to ensure that the conditions were satisfied. He did not expect the forfeiture clause to be operated and accordingly the fact that the NAC operates in an unexpected way so as to forfeit Sir John's vested interest is not something which the court should take into account in determining the meaning of the NAC. Put another way, on Mr Pymont's submission, the testator cannot have intended that, if the heir found it impossible to bear the arms, he should nonetheless be free not to use the testator's name. Whatever the position regarding the arms, the heir must take the steps open to him to take the testator's name, and, since there are no formalities required to take a new surname, the name must be taken within the year.
16. In the alternative, Mr Pymont submits that Sir John was required to take the necessary steps to obtain the Royal Licence within a year. He submits that the obligation to "take steps" means that the heir must make every endeavour: see generally Austen v Collins (1886) LT 903 at 905 per Chitty J. I do not consider that this point assists the argument since there are no findings of fact which would support the argument that the application was not pursued with the requisite vigour.
17. Mr Pymont supports his general approach by taking certain minor textual points on the forfeiture provision in the NAC. Mr Pymont submits that the phrase "then and in every such case" (line 42) provides strong support for his argument that the NAC separates out an obligation to take the Howard name from the obligation to take the Howard arms. He also relies on "within the time aforesaid" (line 38) as describing the time that not only applies to failure "to take such steps as aforesaid" (line 39) but also applies to failure to take and use the name.
18. The judge rejected the appellant's arguments. The heir, under the law of arms, had to have authority to use and bear the Howard arms, and the heir was not obliged to take up arms before he had that authority (judgment, paragraph 41). Furthermore, the NAC appeared to treat the obligations to use the Howard name and arms as a single entity (judgment, paragraph 44). The determinative factor is that the drafter would not have devised the wording in a vacuum. The drafter would have had regard to the terms of the Royal Licence (by which the judge must mean the usual terms of such a licence) (judgment, paragraph 45). Sir John, having applied for a licence on those terms set out above, could not properly have used the Howard name without the Royal Licence. The judge distinguished the case of Re Neeld deceased [1962] Ch 643, where the question was whether a NAC was void for uncertainty and the wording of the clause was different. I agree with the judge that the testator must have been told by his advisers about the procedure for obtaining permission to use the Howard arms.
19. Mr Pymont buttressed his argument by reference to a number of cases on particular names and arms clauses. As on any question of interpretation, cases dealing with other instruments are unlikely to assist the court and thus, without intending any disrespect to counsel's argument, I do not intend to go through those cases.
20. Mr Pearce, for Sir John, submits that the testator's intention was that the beneficiary in possession should use the name and take the arms. Moreover, it was not a matter of indifference to the testator whether a parent took priority to his child. The NAC had to be read with other provisions of the Will, which sought to postpone the ability to bar the entail. This demonstrated that the testator intended that the beneficial trusts should last as long as possible and that a parent should take in preference to the child. Moreover, this was a strict settlement. The tenant in possession accordingly had the powers of the tenant for life, and the testator would have wanted those powers to be vested in the more senior generation. In those circumstances, the testator's intention was not to be astute to divest the beneficiary of his interest. Even though the forfeiture provision was intended to deter the failure to take up the Howard name and arms, it had to be read purposively and in such a way as not lightly divesting a beneficiary of his interest. It was unlikely that the testator intended some technical problem to cause the gift to fail: see generally, Re Neeld deceased, above.
21. Mr Pearce submits that Sir John complied with a direction to "apply for and endeavour to obtain a Royal Licence or to take such other steps as may be requisite to authorise the user and bearing of the said surname and arms" (lines 30 to 33). He did apply within the year. The judge held that he had made the necessary application by making an application to the College of Arms. What the direction requires is that the heir should appoint one of the heralds of the College of Arms to act on his behalf. As I have indicated, I accept these submissions as to the requirements of an application for a Royal Licence.
22. On Mr Pearce's submission, the heir need only comply with one of the alternatives in the forfeiture provision: it is sufficient to avoid forfeiture if the beneficiary has applied for the Royal licence or taken other steps. He submits that any ambiguity in the first "or" in line 39 of the NAC should be resolved in favour of the person with the vested interest. If all that the heir has done is make an application, the correct approach is to wait and see if he discontinues his application at a later stage. This is the purposive approach. This contrasts with Mr Pymont's approach, which is that, if the Royal Licence route is chosen but it is then discovered that the Royal Licence will not be obtained within the year, the heir can take the alternative of simply adopting the testator's surname.
23. Mr Pearce submits that these points could decide the case on their own. However, in the alternative, he makes a number of further submissions. He submits that the intention of the testator appearing from the NAC is that the heir who decides to apply for a Royal Licence should not use either the name or the arms prior to the grant of a licence. He further submits that the intention of the testator appearing from the will is that the beneficiary who, before the end of the prescribed year, has applied for but not obtained a licence and who intends to comply with the directions as to name and arms following the grant of a licence is not to be divested of his interest. In addition, to give effect to the testator's intentions, the NAC has to be construed as if after the words "to take use and bear the same respectively" (lines 38 to 39), there were inserted the words "after having obtained such authority as aforesaid" or words to the same effect. Essentially, the heir should not be disadvantaged if he does not use the name prior to the decision on his petition for a Royal Licence. When the heir takes the Royal Licence route, the name and arms are, as the judge held, a "single entity". The structure of the NAC shows that the testator intended that the heir should be able to adopt the name and acquire the right to bear the arms at the same time.
24. Having already expressed my view on first impression, I can go straight to what I see as the single question that is dispositive of this appeal: was the obligation to take and use the Howard name in lines 14 to 17 an independent obligation with which the heir had to comply within the year of his estate vesting if he had applied for, but not obtained, a Royal Licence within that period? If the obligation to take and use the Howard name was an independent obligation, then the forfeiture provision would apply in the event of non-compliance with it whatever the position regarding the Royal Licence at the end of the year.
25. I have no doubt that the obligation to take and use the Howard name was not an independent obligation when the heir decided to seek a Royal Licence to take both the arms and the name. Mr Pymont's argument is that the testator would intend an heir to change his name even if he could not bear the Howard arms and, even in 1934, the occasions for bearing coats of arms must have been rare. However, Halsbury's Laws, volume 35, on Peerages and Dignities, at paragraph 974, footnote 5, makes it clear that a Royal Licence is invariably granted when permission to take the arms of another family is sought for the purposes of a NAC which contains a forfeiture provision.
26. There are instances in the authorities where a Royal Licence to take up a coat of arms specified by the testator could not be obtained because it could not be shown that the testator was entitled to those particular arms: see, for example, Re Croxon [1904] 1 Ch 252. In the case of the Howard name and arms, however, there is 700 years of recorded family history. It was, therefore, quite unnecessary for the testator to make provision for the heir to take up the testator's name even if the Royal Licence were refused. The testator had carefully used the word "or" in the forfeiture clause (line 38) and achieved the result that forfeiture would follow if there had been a neglect or refusal either to adopt the Howard name and arms or to apply for and to endeavour to obtain a Royal Licence within a year. That meant, on the ordinary straightforward reading of the forfeiture provision, that that provision did not apply if in fact the heir had within the year made an application for a Royal Licence and endeavoured thereafter to obtain it. That is what happened in the present case.
27. Moreover, the obligation to endeavour to obtain the Royal Licence did not arise until the application had been made: if the testator had wished the application to be made as quickly as possible after the vesting of the estate, he would more naturally have used words to that effect and not the word "endeavour" following the words "apply for and" in line 31. Even if the words had been ambiguous, an intention on the part of the testator to require steps to be taken as soon as possible after vesting should not, in my judgment, be assumed in the absence of an indication that this is what the testator intended. I make the assumption that the heir must be aware of the terms of the NAC before he can be said to "neglect or refuse" (as to this, see Re Quinton Dick [1926] Ch 992 and Re Hughes [1943] Ch 296). Even with that knowledge, the heir may be unable to act immediately because he is in some distant part of what was then the Empire or for some other reason.
28. The submission that the testator would have been concerned to have the heir take up and use the Howard name as soon as possible is in my judgment inherently improbable given the antiquity of the Howard name. On this basis, there is no obligation to take up the name if an application for a Royal Licence is made but not granted within the year, and accordingly there is no "refusal" or "neglect" to take up the Howard name for the purposes of the forfeiture provision. The textual points made by Mr Pymont arising out of expressions such as "then and in every such case" seem to me inadequate to mandate a different conclusion. The "or" in the first line of the forfeiture provision (line 34) is to be given its ordinary disjunctive meaning.
29. I have no doubt that the testator would have been aware that it was necessary to obtain the consent of the Queen for a person to bear arms to which he was not entitled. It is also clear from lines 31 to 33 above that he anticipated that, if a Royal Licence was necessary to comply with the NAC, an application could be made for authority to use both the name and the arms. That is the point the judge made about a "single entity" (see paragraph 18, above, second sentence).
30. Another factor against Mr Pymont's interpretation is that, if it were correct, an heir could find that the estate was forfeit even though he in fact obtained the right to use the Howard arms as a result of his application within the year. There is nothing to lead one to suppose that the testator intended such a harsh result.
31. For these reasons, I would dismiss this appeal.

Lady Justice Black:

32. I agree.

Lord Justice Kitchin:

33. I also agree.