England and Wales High Court (Chancery Division) Decisions

IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		12th December 2007

MR JUSTICE BLACKBURNE:

1. This Part 8 claim is concerned with the construction of the Will dated 10^th March 1982, of Kathleen Clark. Mrs Clark died on 11^th June 2000. The parties to the proceedings are her four children. Probate of the Will was granted on 26^th February 2001 to the claimant, whom I will refer to as Maurice, and to the first and second defendants, whom I will refer to as Ian and Wilfred respectively.
2. The provision of the Will which the court is asked to construe is clause 9 and concerns the meaning of the expression "my farm, known as The Homestead Farm"

The Homestead Farm, as for so many years it has been called (the pre-war documents refer to it simply as "The Home Farm," lies on the south side of what a little further to the east is known as Chartridge Lane. The Clark family, members of whom have farmed in the area since at least the latter part of the 19^th century, have farmed The Homestead Farm since 1914, initially as tenant farmers and from 1919 as freeholders. Until his death in 1957 the farm had been owned by George Clark, the parties' grandfather. Between 1957 and his death in May 1982 it was owned and until 1969 farmed by Mrs Clark's husband, Wilfred George Clark, whom I will refer to as Mr Clark senior. From 1969 it has been farmed by Maurice.

3. By clause 1 of her Will, Mrs Clark, who describes herself in the Will as "of The Homestead, Chartridge, Chesham in the County of Buckingham", gave her jewellery and other articles of personal adornment to her daughter, the third defendant, whom I will refer to as Anna. By clause 2 Mrs Clark gave her estate to her husband, Mr Clark senior, and appointed him her sole executor in the event, which did not happen, that he survived her by 28 days. In fact, Mr Clark senior died on 14 May 1982, only a few weeks after Mrs Clark had executed her Will.
4. Clause 3 provided that if, as happened, Mr Clark senior should not survive Mrs Clark by the required period the remaining clauses, clauses 4 to 9, should take effect in substitution for clause 2. By clause 4 Mrs Clark appointed her three sons to be her executors and trustees of the Will. By clause 5 she gave Wilfred an oil painting. By clause 6 she gave Maurice her household furniture and effects. By clause 7 she gave the whole of her residuary estate, after payment of her funeral and testamentary expenses and debts, to be divided into nine equal parts with two parts going to each of Anna, Ian and Wilfred and with the remaining three parts going to Maurice. So the division gave Maurice slightly more than his siblings. Clause 8 was a substitution provision in the event, which did not happen, that any of her four children should not survive Mrs Clark.
5. Clause 9, the provision giving rise to the question of construction, is in the following terms:

"My trustees shall as soon as conveniently may be after my death grant to my said son Maurice if he shall survive me the option to purchase at a price to be ascertained in the manner hereinafter provided my farm, known as The Homestead Farm..."

The clause then sets out the mechanism for exercising the option and for fixing the price to be paid. Suffice it to say that the price to be paid if the option is effectually exercised is, "the fair market value of the farm at the date of my death as between a willing vendor and a willing purchaser." Because the option is triggered by the service of a notice given by the trustees and none has so far been served, the option, if there is one, has not yet become exercisable. Whether there is one is what this dispute is about, because Ian and Wilfred contend that in the events that have happened there is no land to which the option can relate. Maurice, by contrast, contends that there is.

6. In fact, at the date of her Will Mrs Clark did not own the subject matter of clause 9. Her husband, Mr Clark senior did. By his will, made six months earlier in September 1981 in almost identical terms, so far as material, to Mrs Clark's Will, he gave her all of his estate, including The Homestead Farm provided she survived him by 28 days, which in the event she did. As a will speaks from death and as that part of her Will containing clause 9 was conditional upon Mr Clark senior not surviving her by 28 days, the terms of Mrs Clark's Will are, in this regard, entirely explicable.
7. .. As I have mentioned, Mr Clark senior died on 14 May 1982 and Mrs Clark obtained probate of his will on 5 August 1982. On the following day, 6 August 1982, Mrs Clark assented to the vesting in herself of all of the land which she had inherited from her late husband. Identified by reference to various Ordnance Survey parcel numbers, it was described as including "the Farmhouse known as The Homestead and the farm buildings thereon or on some parts thereof," and was expressed to be "subject only to the agricultural tenancy of Maurice Clark." The reference to Maurice's agricultural tenancy is to the fact that, since 1969 he had farmed and he continues to farm the land at The Homestead Farm. Between 1969 and 1976 he did so on the terms of a tenancy agreement between himself and Mr Clark senior who was the freeholder of the land in question. In 1976 the tenancy agreement was varied to include two rooms at one end of the farmhouse where Mrs Clark and her husband lived. Those two rooms, one upstairs and one downstairs, were separated from the remainder of the farmhouse in that doors on both floors connecting with the rest of the house were boarded up. This part of the house became known as The Homestead Farm Cottage.
8. In February 1982, only three months before Mr Clark senior's death, Maurice purchased from his father 16 acres of the land which he was farming. On 12 August 1982, a few days after she had assented to the vesting in herself of the land which she had inherited from her late husband and only five months after she had executed her Will, Mrs Clark entered into a fresh tenancy agreement with Maurice in respect of the 25 or so acres of land that Maurice farmed. The tenancy included The Homestead Farm Cottage. By that agreement, which described Mrs Clark and Maurice as being of "The Homestead" and stated that it was by way of confirmation of an existing agricultural tenancy, Mrs Clark agreed to let and Maurice agreed to take,

"All that farm known as The Homestead Farm Chartridge Chesham aforesaid, including the farm dwelling-house known as The Homestead Farm Cottage farm buildings and farm land the particulars whereof are set forth in the Schedule hereto and delineated and edged red on [an (inaudible) plan] (hereinafter called "the farm") but excluding the main farmhouse..."

I refer to this tenancy agreement as the 1982 tenancy agreement.

9. On 16 July 1987 Mrs Clark conveyed approximately one acre of land, being part of the land comprised in the 1982 tenancy agreement, into the joint names of her four children. This small area of land fronted the road through Chartridge. By a transfer dated 18 January 1989 Mrs Clark sold and transferred to Maurice nearly all of the remaining land which Mrs Clark had inherited from her late husband. She did so for a price of £18,000. She was left only with what was referred to, for short, as "the farmhouse" the larger part of which she lived in, but which included The Homestead Farm Cottage. She also retained a small area of land surrounding the farmhouse, most of which lay between that building and the road through Chartridge on which it fronted.
10. The question for the court to resolve is the meaning of the expression, "The Homestead Farm" as appearing in clause 9 of the Will. Does it include that part of the overall landholding which Mrs Clark inherited from her late husband including the farmhouse, and, within that building, The Homestead Farm Cottage and the small area of surrounding land, which Mrs Clark continued to own at the time of her death? Or was clause 9 wholly spent by the time of Mrs Clark's death as a result of the earlier sale to Maurice? It is not in dispute between the parties that if and to the extent that, on its true construction, the clause includes some or all of the land which Mrs Clark continued to own at her death, the fact that the majority of the land, the subject to the option, had already been acquired by Maurice prior to Mrs Clark's death does not have the consequence that the option can no longer take effect as regards any part of the land that remained in her ownership at the time of her death.
11. Mr Calland, for Ian and Wilfred, submitted that the answer to this question is apparent from the terms of the Will. He pointed to the fact that describing herself in the Will as "of The Homestead," Mrs Clark was clearly drawing a distinction between that property, i.e. the farmhouse in which she was living, and what clause 9 refers to as "my farm, known as The Homestead Farm." He submitted that, whereas the expression The Homestead Farm on its own might give rise to a doubt about whether it was intended to include "The Homestead," i.e. the farmhouse, and whereas on its own a reference to a farm might, depending upon its context, include the farmhouse of a farm as distinct from the farm land and farm buildings other than the farmhouse, nevertheless by describing The Homestead Farm as "my farm," Mrs Clark was distinguishing between The Homestead on the one hand and the farm, i.e. the land excluding the farmhouse, on the other. If, he said, the expression "The Homestead Farm" were to be construed as including The Homestead, i.e. the farmhouse, the words "my farm" in the expression, "my farm, known as The Homestead Farm" would add nothing to the words "The Homestead Farm". Moreover, he said, clause 9 could, in that event, more simply have referred to Mrs Clark's real property or freehold property generally since it has not been suggested that she owned or was likely after the making of the Will to own any other land. In short, he submitted that by the time of Mrs Clark's death the option granted by clause 9 of the Will was spent.
12. Extrinsic evidence did not, he submitted, alter this conclusion. For it showed, he said, that almost unvaryingly from the late 1940s, and certainly from the 1950s onwards, the farmhouse had been referred to in documents as "The Homestead" (and Mr Calland took me to numerous examples of this), whereas the name, "The Homestead Farm," did not appear in any documents as referring to the whole of what he referred to as the entire holding including the farmhouse. He pointed by way of example to the fact that, for very many years, a signboard depicting the name, "The Homestead Farm," has appeared at the entrance to some of the farm buildings. (There was a dispute on the evidence over just how long that sign had existed.) He pointed also to a 2006 Ordnance Survey map of the area in which the farmhouse is described as "The Homestead" and the land to the west, including the one acre field sold by Mrs Clark to her four children in July 1987, as "The Homestead Farm."
13. The only exception to this, he accepted, was the 1982 tenancy agreement. He submitted that because that instrument post-dated the Will and because it was a professionally drawn document, drafted, as he submitted, in the way that it had been in order to set out in the interests of clarity precisely what was included in the tenancy, it could not serve as a reliable indicator of how Mrs Clark used the name " The Homestead Farm." Indeed, he said, given the clear identification by reference to parcel numbers in the attached plan of what was comprised in the tenancy, it was of no importance how the overall holding thereby let was described.
14. He submitted that the extrinsic evidence showed overwhelmingly that "The Homestead" and "The Homestead Farm" were distinct properties and that what would have been "known as The Homestead Farm" around the time that the Will was made was the agricultural land and agricultural buildings as distinct from the farmhouse. He submitted therefore, that the Will was not ambiguous in the light of the circumstances surrounding its making and that there was nothing to undermine his submission, founded on construction alone, that by the time of Mrs Clark's death there was no land on which the option conferred by clause 9 could bite.
15. Cogently as Mr Calland advanced his submissions, I am not persuaded that he is right. In order to decide, as the Part 8 claim form seeks, whether, on the true construction of the Will and in the events that have happened, the farm known as "The Homestead Farm," referred to in clause 9, had been disposed of prior to Mrs Clark's death by the sale of the land and farm buildings by her to Maurice on 18 January 1989 or whether the farmhouse and cottage and remaining land to the front, rear and west of the farmhouse constituted a part of the farm for the purpose of giving effect to clause 9, it must be established, if necessary by extrinsic evidence, exactly what Mrs Clark meant by the expression "my farm known as The Homestead Farm" as it appears in clause 9 of the Will. Although it would appear from the use by Mrs Clark in the Will of the expression "The Homestead" as indicating where she lived as compared with the use by her in clause 9 of the expression, "my farm known as The Homestead Farm," that she distinguished between the two, it is not evident simply by looking at the terms of the will whether the one, The Homestead, was embraced within the other, The Homestead Farm, or, even if the farmhouse itself was not so included, whether any of the land, admittedly small in area, which surrounded the farmhouse and was in Mrs Clark's ownership at the time of her death was so included. In short, recourse to extrinsic evidence to establish precisely what answers to the description, "my farm known as The Homestead Farm" as used in clause 9 is necessary.
16. That evidence showed, as Mr Calland submitted, that certainly from the 1950s onwards, when referring simply to the farmhouse where Mr Clark senior and Mrs Clark lived and where Mrs Clark continued to live during her widowhood, communications to and from the Clarks would refer to "The Homestead." But that does not answer the wider question as to what was intended by the reference in clause 9 to "my farm known as The Homestead Farm." That expression is plainly capable of including The Homestead which, as the evidence indicated, had served from the early 1920s as the farmhouse serving the farm and the activities conducting thereon which, certainly in post-war years, had been known as The Homestead Farm.
17. It is clear from Maurice's evidence, indeed in this respect the evidence was not challenged, that from 1976 he had occupied the two end rooms of the farmhouse which came to be known as The Homestead Farm Cottage. Maurice told me, and I accept, that he rented that part of the farmhouse along with the adjoining farm land initially from his father and following his father's death from his mother, ultimately under the terms of the 1982 tenancy agreement. That agreement, as I have mentioned, was expressed to have been entered into "by way of confirmation of an existing agricultural tenancy." As I have also mentioned, the description given of the land described within that tenancy was of "all that farm known as The Homestead Farm." It expressly included The Homestead Farm Cottage. Equally, it expressly excluded what it referred to as "the main farmhouse."
18. Mr John, appearing for Maurice, made the powerful point that, if by August 1982 it was well established that The Homestead Farm did not include the farmhouse, there would have been no need to provide expressly for its exclusion (except as to the end cottage) in that tenancy agreement. The fact that it was felt necessary expressly to exclude it shows, he said, that without the exclusion it might have been assumed that it was included within the reference to The Homestead Farm. I see much force in that submission.
19. It is also evident from the description of the parcels referred to in the definition of the farm and in the reference to the plan showing what was included, that "the farm" not only included The Homestead Farm Cottage (as the red edging on the plan included that end of the farmhouse which comprised that cottage) but also included land extending right up to the rear of the remainder of the farmhouse. This evidence, directed at what only five months after the Will was made was understood and intended by Mrs Clark to be "the farm" points strongly to the self-same expression, when used by her in clause 9 of her Will as extending at any rate to a part of the farmhouse i.e. of "The Homestead." Put another way, it is not apparent why the expression "my farm known The Homestead Farm" when used in the 1982 tenancy agreement entered into in August 1982 should have a wider meaning than it does when used in clause 9 of a Will executed five months earlier.
20. The evidence also disclosed - indeed, Wilfred's evidence, which Ian confirmed as accurate, drew attention to the point - that The Homestead Farm Cottage, consisting as I have mentioned of no more than the two end rooms of the farmhouse, had no bathroom or WC of its own. Wilfred goes on to explain, and Maurice confirmed, that Maurice had the use only of a garden WC in an outbuilding at the other end of the farmhouse.
21. Against that background one is bound to ask oneself what reason there can be, unless required to do so by the language of the Will or admissible extrinsic evidence, for construing the expression "my farm known as The Homestead Farm" as used in clause 9 as excluding The Homestead Farm Cottage and any of the surrounding land owned by Mrs Clark at her death which had been included within the 1982 tenancy agreement, and if so what Mrs Clark's reason could be for so doing. For the undoubted effect, if the expression used in clause 9 was not intended to refer to any part of the farmhouse, would be that although Mrs Clark was enabling Maurice, if he had the means, to acquire the farm land and farm buildings by exercising the option conferred on him by clause 9 and thereby to ensure the continuation of his livelihood, he would be deprived, unless he could persuade his brothers to sell it to him, of the only place which he had made his home since 1976, modest though that home is, and from which he had conducted those farming activities and, viewing the farmhouse as a whole, deprived of the further use of the only place in which he had ever had his home. For the evidence is that Maurice has lived at the farmhouse throughout his life. If, on the other hand, the expression used in clause 9 is to be construed as including the Cottage, i.e. the part of the farmhouse which, at the time the Will was made, Maurice was renting from Mrs Clark as part of his agricultural tenancy, then what reason could Mrs Clark have had for excluding the remainder of the farmhouse, not least when the option conferred by clause 9 provided that the price to be paid for the farm there described would be its fair market value at the date of her death as between a willing vendor and a willing purchaser as certified by some practising surveyor or land agent selected by Ian and Wilfred?
22. I have therefore come to the clear conclusion that the expression "my farm known as The Homestead Farm" appearing in clause 9 includes the farmhouse. Specifically, there is no indication from the terms of the Will that the former should exclude the latter and the extrinsic evidence, so far from indicating that the former excluded the latter, points strongly (I refer to the 1982 tenancy agreement) in the other direction.
23. In reaching the conclusion, I make clear that I am not impressed by the emphasis placed by Mr Calland on the fact that the sign marked "The Homestead Farm" was put up some distance from the farmhouse itself and by an entrance to some of the farm outbuildings. That is entirely explicable on the basis that it was intended to indicate, as Maurices stated and common sense would in any event suggest, where deliveries to and collections from the farm arising out of the farming enterprise should be made. Nor am I impressed by Mr Calland's reliance on the 2006 Ordnance Survey with its reference to the farmhouse as The Homestead and to the land and buildings to the west as The Homestead Farm. It is noteworthy that the file plan, taken, of course from the Ordnance Survey, attached to the land certificate opened following Maurice's purchase from his mother in January 1989 refers only to The Homestead. There is no reference on that plan to The Homestead Farm.
24. The same edition of the Ordnance Survey appears to have been used as the plan attached to the 1982 tenancy agreement. In any event, the question is not how others, the Ordnance Survey or other third parties, understood the expression "The Homestead Farm" but how it was understood and intended by Mrs Clark when she made her Will. Nor does it seem to me to be possible to infer from Mrs Clark's sale and transfer to Maurice in January 1989 of land on which he carried out his farming activities that that fact is in any way indicative of an intention or understanding on Mrs Clark's part that what she retained was not in any sense a part of "my farm known as The Homestead Farm" as used in clause 9. No less plausible is that Mrs Clark wished to retain ownership of the house in which she lived. Equally, I attach no weight one way or the other, so far as Mrs Clark's intentions are concerned, to what may or may not have been said when she gave instructions to her solicitor, Mr Murray, on the occasion of the sale to Maurice in January 1989. Nor do I derive assistance from a conversation which Ian says that he had with his mother shortly before her death.
25. Mr John drew my attention to clause 6 of the Will, by which Mrs Clark gave to Maurice all of her household furniture and effects. He submitted that this was significant as Maurice would have had nowhere to use that furniture if he was not able to live in the farmhouse in which the furniture was situated. For my part I do not regard that clause as in any sense conclusive on the question of construction since Mrs Clark, aware that Maurice lived modestly in two end rooms, might have envisaged him acquiring somewhere else to live (he had made efforts, thus far unsuccessful, to obtain permission to construct a home for himself elsewhere on the farm) for which the household furniture and effects might come in use. That said, it is to my mind more natural to suppose that in giving to him the very furniture and effects which had been, and from the evidence had been for many years in some cases, in the farmhouse Mrs Clark envisaged that Maurice might well end up using the farmhouse as a whole as his place of residence. What better, if he were to do so, than that he should have the use of the furniture and effects already in situ. To that very limited extent clause 6 is of some assistance in construing clause 9.
26. For these reasons I shall therefore answer the question raised by paragraph 3 of the claim form in the sense indicated by paragraph 3.1.2. This has the incidental effect that I am spared the task of having to determine, if I had decided that the farmhouse was not included in the expression "my farm known as The Homestead Farm," how much of the surrounding land which remained in Mrs Clark's ownership at the time of her death was included within that expression.
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