United Kingdom House of Lords Decisions

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URL: http://www.bailii.org/uk/cases/UKHL/1905/42SLR0856.html
Cite as: 42 ScotLR 856, [1905] UKHL 856

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SCOTTISH_SLR_House_of_Lords

Page: 856↓

House of Lords.

Friday, March 3 1905.

(Before the Lord Chancellor (Halsbury), Lords Macnaghten, James of Hereford, and Lindley.)

42 SLR 856

Chapman and Others

v.

Perkins.

( On Appeal From The Court Of Appeal In England.)

Subject_Will — Construction — Intention — Clause of Forfeiture — Forfeiture of Interest in Event of Certain Marriage — Marriage Occurring during Testator's Lifetime.
Facts:

A testator by his will conferred certain interests in his estate upon his children, providing however that on the occurrence of certain enumerated events, e.g., the bankruptcy of a child, or if a child contracted a marriage within a degree of kindred indicated in the will, he or she should forfeit his or her interest under the will.

During the lifetime of the testator a daughter contracted a marriage within the prohibited degree.

Held that, as regarded the forbidden marriages, the provision as to forfeiture was meant by the testator only to apply to a marriage entered into after his death, and that consequently the daughter had not forfeited her interest.

Headnote:

Edward Chapman by his will dated March 24, 1881, devised and bequeathed his real and personal estate to trustees, to be held by them upon trusts for the benefit of his wife and children. The will contained the following clauses:—“And I declare that if any son or daughter of mine shall do or suffer any act whether by way of alienation, charge, or otherwise, and including any act under any statutes of bankruptcy or for the relief of insolvent debtors for the time being, by reason or means whereof any part or share of him or her in any income or capital of my said estate to or of which he or she shall not have already become entitled in possession or be for the time being actually entitled to receipt, shall or but for the payment clause would become wholly or in part vested in or payable to any other person or persons, or if he or she shall contract any marriage forbidden by me as hereinafter expressed, then and in any such case his or her share, right, title, and interest of, in, and to my said trust estate and the income thereof shall thenceforth cease and determine, and my said trust estate shall thenceforth go and be held in such manner as the same would have been held if he or she had died before me without leaving any child or children at my death. And I declare that the marriages forbidden by me. are in the case of son or daughter marrying with a person of any degree of kindred unless more remote than third cousin, and also in the case of a daughter's marriage contracted without the previous written consent of the trustees or trustee for the time being of this my will, or if more than two, of a majority of them.”

The testator died on December 23, 1902.

On November 9, 1886, one of the testator's daughters married her first cousin.

The Court of Appeal ( Williams and Stirling, L.JJ., diss Cozens-Hardy, L.J., rev a decision of Kekewich, J.) held that as regarded the forbidden marriages, the testator's intention was that forfeiture should only take effect in the case of a marriage entered into after the testator's death, and that consequently the daughter had not forfeited her interest.

On appeal to the House of Lords their Lordships gave the following opinions:—

Judgment:

Lord Chancellor (Halsbury)—I do not propose to go over this elaborate argument again. It appears to me that the decision of Vaughan Williams and Stirling, L.JJ., is perfectly right. There is an intention on the part of the testator, to my mind overwhelmingly established upon the words of the will itself, and I decline to go beyond that. The argument, from the words used with reference to bankruptcy, seems to me to be disposed of by this consideration. In the cases to which reference has been made learned judges have used some such phrase as that they “have reluctantly arrived at the conclusion,” or that it was “a non-natural construction of the words,” but, further than that, in the cases referring to bankruptcy, there was a desire on the part of the testator that his property with which he was dealing should not go to strangers, but should go to his children, and a decided intention that the

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thing which should take away his property from the intended object of his bounty should be something happening during his own lifetime, and therefore they have no reference to the subject-matter with which we are dealing. To my mind the reasoning of Vaughan Williams and Stirling, L.JJ., as to the intention of the testator is perfectly satisfactory. I think their judgment quite right, and I move your Lordships that it be affirmed, and the appeal dismissed.

Lord Macnaghten—I am of the same opinion. I agree with the majority of the Court of Appeal, and I think that in this particular will the marriages forbidden are marriages taking place after the testator's death.

Lord James of Hereford and Lord Lindley concurred.

Appeal dismissed.

Counsel:

Counsel for the Appellants— Levett, K.C.— Iselin. Agent— John F. Child, Solicitor.

Counsel for the Respondent— Upjohn, K.C.— E. Clayton— W. A. Russell. Agents— Ward, Perks, & M'Kay, Solicitors.
1905