England and Wales High Court (Chancery Division) Decisions

IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		17th July 2009

Sir John Lindsay :

Introduction

1. If, by a trustees' exercise of an overriding power of appointment, a gift, vesting upon attainment of a specified age, is given, is the power still exercisable to defeat the gift even after attainment of the age? If the gift is, in addition, expressed as "absolute", would it then be indefeasible once it had vested, even if it would not have been without that word? Cannot other parts of the context override whatever force the word "absolutely" might otherwise have to bar the defeasibility of the gift by a later exercise? There is, as I shall come on to, no authority which binds me on these questions, nor would I expect any upon matters which are ones of construction of the relevant documents. I am told there is nothing to be found on the points in Farwell on Powers 3^rd edition, nor is the case chiefly relied on in argument referred to in Thomas on Powers, 1^st edition, 1998. Like the parties, I must glean what I may from cases not on, but not wholly removed from, the point. But first I will refer to the documentary background from which the questions emerge.

The Documents

2. On 8^th March 1968 Major J.E. Joicey of Blenkinsopp Hall, Haltwhistle in Northumberland made an irrevocable settlement. It was a conventional "£10" settlement but there soon came to be conveyed to the Trustees some of the lands which had been enjoyed as an Estate in the area by the Major and his predecessors, members of the Joicey family, for many years. At that time the only children of the Major's marriage were his three daughters, the eldest of whom was then only 11 years of age. The Major died young in 1981 without having had further children. Clause 3 of the 1968 Settlement created a power of appointment in the Trustees and clause 4 made gifts in default of appointment. Those gifts in default were such that the 1968 Trust Fund would be likely to become divisible into several parts or have its proceeds so divisible unless there were some exercise of the conferred power of appointment.
3. There was such an exercise, by deed, on 29^th March 1977 ("the 1977 Appointment"). By then the Trust Fund included the several farms, woodlands, cottages, fields, stables, outbuildings and other landed properties listed in the Schedule, including "the mansion house known as Blenkinsopp Hall" and its appurtenances. No doubt because, by then, it was seen that, should more than one beneficiary take, a division of the Trust Fund would be likely to lead to a break-up of the Estate which the family had so long enjoyed, the 1977 Appointment initially provides, subject as I shall come on to, a series of gifts, each being to one person only, with successive gifts in default to another one person only. As far as most material the 1977 Appointment provided as follows:-

"2. As from the date hereof the Trust Fund and the income thereof shall be held upon such trusts and with and subject to such powers and provisions (including discretionary trusts or powers vested in any person or persons) in favour of any one or more exclusive of the other or others of the children and remoter issue of the Settlor as the Trustees shall from time to time during the Trust Period (but during the life of the Settlor only with his consent in writing) by deed or deeds revocable or irrevocable appoint……"

After a proviso which I need not set out the 1977 Appointment, referring to the Major and Mrs Joicey's three daughters, continues, with my emphasis:

"In default of and subject to any such appointment the Trust Fund shall be held upon trust for the first or only son of Lucinda who shall attain the age of Twenty five years during the Trust Period absolutely or if there is no such son of Lucinda then upon trust for the first or only daughter of Lucinda who shall attain the age of Twenty five years during the Trust Period absolutely and if there is no such son or daughter of Lucinda then upon similar trusts for the first or only son or if there is no such son for the first or only daughter of Sabina or if there is no such son or daughter of Sabina then for such son or daughter of Fiona or if there are no such sons or daughters then upon trust for such of Lucinda Sabina and Fiona as shall attain the age of twenty five years during the Trust Period absolutely and if more than one in equal shares but if none of them shall attain that age then upon trust for the survivor of the said daughters of the Settlor absolutely."

The Issues

4. Lucinda's elder son – Alexander Newall, the Sixth Defendant – will attain the specified age of 25 in late October of this year. The Trustees understood that he was going to assert that, upon the gift in default to him then vesting, he would become entitled to the Trust Fund, as clause 3 provided, namely "absolutely" and hence, as the Trustees understood was to be said, indefeasibly. Such an assertion was understood to be certainly resisted by Fiona's elder son, Marcus John Lees-Millais, the First Defendant, and by Fiona herself, the Third Defendant. Indeed, it was understood to be resisted by all Defendants but for Alexander and his mother, Lucinda, the Fifth Defendant. Accordingly the Trustees launched a Part 8 Claim Form on 21^st May 2009 so as to find what the position would be if nothing were done before the imminent vesting in Alexander. The Claim Form, as far as immediately relevant, seeks:

"1. A declaration as to whether on the true construction of the Deed of Appointment dated 29.3.77 relating and supplemental to the 1968 Settlement, and in the events that have happened:

a. The Power of Appointment given to the trustees of the 1968 Settlement by clause 2 of the Deed of Appointment is exercisable only prior to the attainment by the first or only son of Lucinda Loraine Newall of the age of 25 years; or

b. The Power of Appointment given to the trustees of the 1968 Settlement by clause 2 of the Deed of Appointment is exercisable throughout the whole of the Trust Period notwithstanding the attainment by the first or only son of Lucinda Loraine Newall to attain the age of 25 years."

5. It has transpired that Alexander and his mother do not persist with the assertions which the Trustees had understood they were intending to pursue and they have not attended to argue for the conclusion – "the 1(a) argument" – in para 1(a) of the Claim Form. No one else was interested in doing so and it thus fell to the Trustees, at a fairly late stage, to argue for para 1(a). I am indebted to Miss Newman QC and Mr Keller, instructed on behalf of the Trustees, for preparing the 1(a) argument at short notice and presenting as full an argument as any partisan party could have done. Opposing 1(a) and promoting 1(b) were Mr Hubbard, on behalf of Marcus Lees-Millais, and Mr King on behalf of Fiona Lees-Millais, his mother. Other parties, though joined, did not attend to argue the issues.
6. Before I turn to the authorities I should say this; it may be thought that the issues could be avoided by the Trustees, before late October, making some appointment undoing the gift to Alexander and replacing it with a provision under which the Power of Appointment plainly will subsist without or notwithstanding any interim vesting. However, for reasons I cannot go into, the Trustees here have reason to tread very warily. The family is divided, even bitterly divided, and there has been extensive and very expensive litigation over a number of years. The Trustees took the view that they could assuredly make such an appointment for the time being at least to defeat the 1977 Appointment's gift to Alexander only if all relevant parties agreed such a course. They do not, and hence the Claim Form was issued and taken to a hearing.

The Authorities

7. As I have touched on, it cannot be said that any of the authorities coming to my attention is wholly in point but it will be best if I mention each of them to see what, if anything, of relevance can be derived from them. Taking them in chronological order, the first is In re Cotton's Trustees and the School Board for London (1881-82) L.R. 19 Ch. D. 624 (per Fry J). There the trustees, as prospective vendors, asserted that they had specific power to sell a parcel of land notwithstanding that their eight beneficiaries had vested interests in it and were sui juris – page 628. The School Board, as prospective purchasers, objected that, if all the persons beneficially entitled were, as they were, sui juris, then the power of sale was gone – page 625. The trustees, by Summons under the Vendor and Purchaser Act 1874, raised the question of whether they had due power to sell without the concurrence of anyone. The settlor had had a large building estate of which the relevant parcel was part. By his will he devised it to the trustees on trust for his wife for life with the remainder for the benefit of his eight children in equal shares. He gave extensive powers of management and sale of the estate to the trustees during a specified long period after his death, a period which was far from expired. At page 629 Fry J said:

"Nothing can be more plain, to my mind, than the intention of the testator that, during the period to which I have referred, the estate and the fund should be managed together by the trustees as a common concern, in order to utilise and improve the estate. That was his intention, and it would be a violation of his intention if I were to hold that it had come to an end by the absolute vesting of the beneficial shares. Nothing could be more inconvenient than for persons entitled to undivided eighths to have the management and carrying on of a concern of this kind. The case is very similar to that which would have occurred if the testator, being the owner of a business and land connected with it, had vested the business in trustees for the purpose of their carrying it on during the same period. It would be very difficult in such a case to say that the intention of the testator was that the power should come to an end when the beneficial interests in the business had become absolutely vested."

8. The context here, as well as the nature of the power being considered, is very different to the one before me but two points emerge which, as I read the case, are as applicable to the case before me as they were to Fry J's case. Firstly, the persistence or duration of a power is a matter to be arrived at by reference to the settlor's, testator's or appointor's intention. Where, as here, the power is created by an instrument, that will thus throw one (although this was not in issue in the case) upon the ordinary canons of construction; the instrument will need to be construed as a whole against the factual matrix from which it emerged. Secondly, there is no technical or other rule which prescribes, when the property subject to the power is, but for the power, wholly vested beneficially in persons sui juris, that the power is, without more, at an end.
9. In re Buckley's Trusts (1883) 22 Ch.D. 583, per Fry J, the effect of a vesting on a power never arose as the gift by will to the infant donee was subject to a proviso directing the gift elsewhere were he not to attain 21, as was the case. The case was thus concerned only with accumulations made down to the time of his death but is of interest as Fry J, hardly a lax or uninformed user of the language of the law, speaks at page 584 of a class of gift "absolute in the first instance but liable to be defeated …" and, at page 585, of "an absolute gift liable to be defeated".
10. In Re Hancock [1896] 2 Ch 173 CA the Court dealt with the construction of a husband's power to appoint to his wife for life in remainder on his own interest. He did so, irrevocably and absolutely – see Lindley LJ at page 181 – with remainder, subject to that, to his children (whose gifts were absolute, irrevocable and vested – page 186 - but as to one of whom there was expressly reserved a power of revocation). Kekewich J held that the appointment to a second wife was ineffectual. He was affirmed by the Court of Appeal. Lindley LJ held that the reference to "wife" meant the appointor's then wife but went on to deal with the position if that were a matter of doubt. He emphasised that the appointor had reserved no power to appoint to an after-taken wife and that it was an "absolute" and irrevocable appointment to his then wife – page 182. One needed, he said, to discern the intention of the appointor – page 183; there was such a thing as common sense in the construction of powers – page 180. The husband had, by the first appointment, dealt with the estate in a manner inconsistent with any further exercise of the power – there was no power of revocation – and that put an end to the power. The appointor had exercised the power and had exhausted it – see also Foakes v Jackson [1900] 1 Ch 807 at 811 per Farwell J.
11. Lopes LJ held that the Court was entitled to have regard to the state of things as they were at the date of the appointment; the appointor was then married and the word wife thus contemplated the existing wife and none other; were that not so the interests of the children in remainder could be indefinitely postponed by fresh appointments to second and subsequent (and perhaps younger) wives. Kay LJ pointed to the appointment to the wife being on its face irrevocable.
12. The authority is somewhat peripheral to the argument but illustrates, firstly, the importance of the appointor's intent rather than any technicality and that an important factor in considering whether a power has been exhausted by its exercise is whether or not its exercise was expressed to be irrevocable or whether there was no reserved power of revocation. Secondly, the Court is entitled to have regard to the circumstances existing at the time of the exercise.
13. In re Master's Settlement [1911] 1 Ch 321 was heard by Eve J. A marriage settlement provided, after the wife's death (which had happened), for the husband for life or until his bankruptcy. He had lost that life interest because of his bankruptcy. A power in the spouses jointly or by the survivor to appoint amongst the children or remoter issue of the marriage had not been exercised but subsisted still in the husband – page 323. The gifts over in default of appointment to the children of the marriage had all vested. Counsel – page 323 – spoke of the children having clearly vested interests in the settled fund liable to being divested upon the husband exercising his power of appointment and Eve J spoke in similar terms at page 325. No one can be seen to have spoken in terms of the children's interests in default of appointment as being for the time being "absolute" but they plainly were, at least in the sense of their extending (subject to the exercise of the power) in equal shares to the entire ownership of the trust fund. Eve J held that pending and subject to the exercise of the power of appointment by the husband the income was distributable in equal shares amongst the children of the marriage. The case does not have the force of In re Cotton's Trustees supra in illustrating that a power can subsist even where the only possible beneficiaries to all of the fund are sui juris as in Master's the children could have been divested by an appointment in favour of the (existing) remoter issue, nor, unlike Buckley, does it throw light on use of the word "absolute". But at least it shows, as I do not take to be contested or, indeed, contestable, that there is no difficulty, within the ordinary well-informed legal usage of words, in speaking of interests, even those extending to the totality of the ownership of the relevant property, as being vested but "liable to be divested" or "subject to being divested".
14. In re Brooks' Settlement Trusts, Lloyds Bank Ltd v Tillard [1939] 1 Ch. 993 Farwell J was concerned with the rule that where an assignor has made a voluntary assignment, one not for value, of a mere expectancy, then equity, (which, in the old phrase, "will not assist a volunteer") will not compel him to perform his promise. The relevant mere expectancy was the interest, in default of appointment, under a marriage settlement, of a son of the marriage who had attained the required age of 21 years. When his mother, in exercise of the power, but after the son's voluntary assignment, appointed a sum to him she thus created an interest which he had never had before – page 997. Prior to that he had had only an expectancy. It was regretfully held by the judge – see page 999 – despite the broad language of the assignment – language wide enough, in point of construction only, to cover the appointed sum – that the authorities as to no assistance to a volunteer in effect overrode the language of the assignment and hence the son, not the assignee, was entitled to the appointed sum. At page 996 Farwell J said:

"The legal position in the case of a special power of appointment is not in any doubt at all. Referring to Farwell on Powers, 3rd ed., p. 310, I find this statement of principle, which will be found in exactly the same language in earlier editions of the book, and therefore is not in any way the creation of the editor: "The exercise of a power of appointment divests (either wholly or partially according to the terms of the appointment) the estates limited in default of appointment and creates a new estate, and that, too, whether the property be real or personal." Then there is a reference to a decision in the Duke of Northumberland v. Inland Revenue Commissioners (1), where this statement was adopted by Hamilton J., as he then was. The effect of this is that in the case of a special power the property is vested in the persons who take in default of appointment, subject, of course, to any prior life interest, but liable to be divested at any time by a valid exercise of the power, and the effect of such an exercise of the power is to defeat wholly or pro tanto the interests which up to then were vested in the persons entitled in default of appointment and to create new estates in those persons in whose favour the appointment had been made."

15. There is no hint there, in the phrase "liable to be divested at any time" that, without more and regardless of an appointment being said to be subject to any further one, the ability to divest by way of a later appointment ceases on the attainment of a vested interest (whether the vested interest was expressed as "absolute" or was merely absolute in the sense of extending to the totality of the ownership without being so described).
16. Next, and most importantly, comes In re Sharp's Settlement Trusts [1973] 1 Ch, 331 per Sir John Pennycuick V-C, which was concerned with the destination of accumulations made under s.31 of the Trustee Act 1925. No question arose on the construction of any private settlement or power; the issue was on the meaning of s.31(2)(i)(b) of the Act. In default of appointment such children as attained 21 were to take a fund in equal shares. Some but not all of the children had attained that age. As for one child, accumulations for his prospective share had been made during his infancy. He did achieve the age required. Did he thus become entitled "absolutely", within the meaning of s.31(2)(i)(b) to the property from which the accumulated income had arisen? A similar question arose as to accumulations from his sister's share; she was still an infant. Very distinguished Counsel were engaged to argue the issue and at page 338 the Vice-Chancellor said (with my emphasis):

"Mr. Vinelott for Hugh Winston Sharp and Mr. Maurice Price for Penelope Bliss contend that the word "absolutely" used in relation to personalty denotes an interest which is not merely a vested interest in the entire capital and income of the property but is so vested free from any power or condition which may in the future defeat it; for instance, a power of revocation or condition subsequent. Mr. Nourse for Russell Sharp and Joanne Sharp contends that the word "absolutely" in relation to personalty denotes merely a vested interest in the entire capital and income of the property and none the less so by reason that this interest is subject to some power or condition which may in the future defeat it.

Leaving aside for the moment any consideration arising from the expression "in fee simple, absolute or determinable" used in relation to realty, I feel no doubt that Mr. Vinelott's contention is correct. The word "absolute" in its ordinary use in legal language denotes complete beneficial ownership and dominion over property, and I should have thought it an entirely unnatural use of the word to apply it to an interest which can be destroyed at any time by the exercise of a power or the fulfilment of a condition with the consequence that the property must be retained by the trustees until the power or the condition is spent. I was referred on this point to a definition in Fearne, Contingent Remainders and Executory Devises, 10th ed. (1844), vol. 2, p. 30, which is in these terms:

"With reference to the certainty of their duration, interests are divided into - 1. Defeasible. 2. Indefeasible, or absolute. A defeasible interest is an interest that is subject to be defeated by the operation of a subsequent or mixed condition. An indefeasible interest, or an absolute interest as opposed to a defeasible interest, is one that is not subject to any condition. With reference to the quantity of interest, they are divided into - 1. Absolute. 2. Limited. The absolute interest, as opposed to a limited interest, is an interest which comprises the entire ownership of which the entirety, or some portion of the entirety, of any hereditament, is susceptible. A limited interest is one which does not comprise that entire ownership."

I think that broadly, apart from some larger context, those definitions stated in 1844 as to the natural meaning of the word "absolute" are equally true today."

The accumulations in issue thus fell outside s.31(2)(i)(b) and hence, under s.31(2)(iii), accrued to the capital of the fund and thus accrued to the respective vested or contingent shares of the beneficiaries concerned, subject to the exercise of the power of appointment – page 341 c to e.

17. Finally, Inland Revenue Commissioners v Cookson [1977] 1 WLR 962 CA illustrates that trustees' powers can be expected to continue within their specified limited duration unless and until they are put to an end by clear words or necessary implication.

The argument

18. Miss Newman, at my invitation filling the gap left by the Newalls' non-attendance and raising the 1(a) argument, refers, of course, to the repeated use of the word "absolutely" in the gifts in default of appointment in the 1977 Appointment – paragraph 3 supra. Giving the word the natural meaning held to be appropriate to it in Re Sharp's Settlement supra, a meaning the appointors (who included a solicitor) can, she says, be expected to have intended, the appointors thus plainly intended to and did create a gift, she argues, which, upon Alexander attaining the age of 25 will be become indefeasible and which will cover the whole of the 1968 Trust fund. Thus, if no appointment is made earlier, then in late October this year Alexander, if then alive, will take the whole 1968 Fund with no power thereafter in the Trustees to divest him, wholly or pro tanto, by their thereafter revoking his appointment and appointing elsewhere.
19. This argument is resisted by Mr Hubbard and Mr King partly by their looking more closely at Sharp and partly by reference to features of the 1977 Appointment other than the word "absolutely".
20. Looking more closely at Sharp (which was, of course, not commented upon in Farwell on Powers 3^rd Edition 1916, nor either is it in Thomas on Powers, 1^st Edition 1998) one sees that the Vice-Chancellor recognised the possibility of some contexts requiring a meaning other than that which he described as the natural one. He says, at page 339, "apart from some larger context". Indeed, the very passage from Fearne which he cites and adopts as a pointer to the "natural" meaning shows how the word "absolute" can have a varying meaning: when one is using it "with reference to the certainty of the duration" of an interest it means indefeasible. With reference to "the quality of interest", it means an interest which comprises the entire ownership of which the entirety of the relevant hereditament is susceptible. I see no reason why a "larger context" cannot have the effect that only one of those two meanings is, in that context, the applicable one, a possibility which is supported by Fry J's usage, cited above, in In re Buckley's Trusts. Put another way, I have encountered no rule that requires that, independent of context, the word invariably has both of Fearne's meanings at one and the same time. Moreover, although the Vice-Chancellor spoke of the word's use "in ordinary use in legal language" he was construing only a statute, as to which the presumed intention of Parliament is relevant, as he mentioned at page 341b.
21. Miss Newman does not, and, on an issue of construction, could not say that Sharp binds me to hold that in the 1977 appointment the word "absolute" in the gift (as it transpired to be) to Alexander in clause 3 has the force which she would ascribe to it. I thus have no need, and in any event would not presume, to say that Sharp is wrong, but I feel free, as is not inconsistent with Sharp, to arrive at a different conclusion should a "larger context" (including, as the authorities I have cited show, a due regard for the circumstances as they were at the time of the Appointment and the intentions of the appointors derivable from the language of the 1977 Appointment as a whole) so require.
22. Do they so require? Mr Hubbard, supported by Mr King, refers to the power being exercised in 1977 as being rightly recited as being an "overriding" power. Its exercise in 1977 is not expressed as irrevocable. The power is described as being exercisable "from time to time during the Trust Period (but during the life of the Settlor only with his consent in writing) by deed or deeds revocable or irrevocable". The Trust Period is a defined conventional period of 80 years from 8^th March 1968 and hence has many years to run. There is no provision that the power shall not, in whole or in part, be thereafter exercisable, even during the currency of the Trust Period, if, for example, an interest under the trusts in default of appointment shall have become vested as to that whole or particular part.
23. Moreover, and of the greatest importance, the default trusts of clause 3 are exactly that; it begins, in a manner that qualifies the whole of the clause, "In default of and subject to any such appointment", meaning an appointment made by the Trustees by deed or deeds during the Trust Period. Nothing qualifies the ordinary effect of such a phrase; it is not provided, for example, that the further appointment contemplated should not take effect quoad any interest under clause 3 which had previously vested. A construction of the 1977 Appointment as a whole provides a "larger context" inimical, in my view, to the 1(a) argument.
24. As for the circumstances of the time, at the date of the 1977 Appointment the Settlor had three children, Lucinda who was aged 20 and was already married, Sabina, aged 18 and then unmarried and Fiona, aged 15 and then, of course, unmarried. No male grandchild of the Settlor had by then been born; the first born male grandchild, Alexander, was not born until 1984 (although Lucinda's elder daughter, Nicola, had been born on 5th January 1977, less than 3 months before the 1977 Appointment). Neither the Settlor nor the Appointors could know how fitting it would be for Lucinda's first or only son, should he be called into existence, to scoop the whole Trust Fund on achieving 25 years. It could be said that surely in the 25 years before such a son's achievement of that birthday the Appointors would have opportunity enough to divest the gift by appointing away from him before that birthday, as it is common ground that they may have done or still do, but there could be nothing about the achievement of 25 years which of itself rendered a taking by Lucinda's first or only son the best destination for the Fund. Prudent appointors in 1977 could have foreseen the possibility, say, that were such a son to die or become bankrupt after achieving 25 but before a transfer of the Fund to him then what had previously seemed appropriate might cease to be so.
25. If one deploys the common sense which Lindley LJ required should be available in this area, it becomes plain, in my judgment, that the Appointors should not be taken to have lost the power further to appoint, even after a vesting under clause 3. Even then an enjoyment of the Trust Fund of a kind which the Appointors might then think most accorded with their wishes or with their view of what had been the Settlor's wishes might require a further appointment. The ability of the Appointors so to appoint should, on the authorities, be denied them only if that is clearly provided by express provision or necessary implication.
26. No such is to be found. In the "larger context" to which I have referred the "natural" meaning suggested by Sharp can be and is displaced by the other references to which Mr Hubbard and Mr King drew attention, a conclusion which reference to the circumstances of the time can only reinforce. The 1(a) argument fails.
27. I asked Miss Newman what her argument would be if the word "absolutely" had been omitted in the gift to Lucinda's first or only son. The gift would then have been "absolute" in the second of the senses referred to in Fearne supra on Alexander attaining 25 years but would not have been expressed to be absolute. She said that her argument would have remained the same; a vesting which was absolute in the second sense would bar further use of the power to appoint even if the word "absolute" or "absolutely" was not used. It was merely that the use of the word made the case even plainer. Miss Newman was right thus to avoid ascribing an almost totemistic force to the actual expression of absoluteness in addition to its existence (in the second Fearne sense) but once it is conceded that such expression is unnecessary one gets to a position in which, even without the help of Sharp, further appointment would be said to have been barred upon the vesting. As I have concluded that the 1(a) argument fails even with the assistance of Sharp I need not deal further with this limb, in which whatever force a vesting may otherwise have to deny further exercise of the power would surely be even more readily displaced by the other provisions of the 1977 Appointment, looked at as a whole.

Conclusion

28. For the reasons I have given I declare in the sense of paragraph 1(b) of the Claim Form though, subject to argument, I would add "for the time being" after "is exercisable"; it could be that the power is, for example, released or exercised irrevocably before the end of the Trust Period. I make the representation orders which Miss Newman sought at the beginning of the hearing and which no one appeared to oppose. I ask Mr Keller to prepare and circulate a draft Minute of Order but costs, which have been indicated to me as likely to be contentious, remain to be dealt with. The minute should adjourn the issue of costs and, subject to argument, the convenient course, at this stage of the legal year, would be to adjourn to the date already fixed for other issues in October.