United Kingdom House of Lords Decisions

Parliamentary Archives,
HL/PO/JU/4/3/1175

HOUSE OF LORDS

WHISHAW and Another

v.
STEPHENS and Others

Lord Reid
Lord Hodson
Lord Guest
Lord Upjohn
Lord Donovan

Lord Reid

MY LORDS,

Settlements were made by the late Mr. Calouste Gulbenkian in 1929
and 1938 under which the trustees " shall " during the life of his son
Mr. Nubar Gulbenkian

" at their absolute discretion pay all or any part of the income of the
" property hereby settled and the investments for the time being
" representing the same (hereinafter called the Trust Fund) to or apply
" the same for the maintenance and personal support or benefit of all
" or any one or more to the exclusion of the other or others of the
" following persons ..."

Among those persons were

" any person or persons in whose house or apartments or in whose
" company or under whose care or control or by or with whom the
" said Nubar Sarkis Gulbenkian may from time to time be employed
" or residing ..."

The sole question in this appeal is whether this class of potential beneficiaries
is so uncertain that these provisions cannot be operated by the trustees.
It is not disputed that if the description of the class which I have quoted
is too uncertain then the whole provision fails even although the other
potential beneficiaries are easily ascertainable.

This clause does not make sense as it stands. One of the permutations
which the grammar requires is any person " by whom Mr. Gulbenkian is
" residing ". But the client must not be penalised for his lawyer's slovenly
drafting. Under modern conditions it may be necessary to relax older and
stricter standards. If I adopt methods of construction appropriate for
commercial documents and documents inter rusticos I must consider whether
underlying the words used any reasonably clear intention can be discerned.
I think that it is reasonably clear that this clause is the result of carelessly
telescoping two separate clauses—(1) any person by whom Mr. Gulbenkian
may from time to time be employed, and (2) any person in whose house or
in whose company or under whose care or with whom he may from time
to time be residing. Read literally the clause embraces any person in
whose house or in whose company or under whose care or with whom
Mr. Gulbenkian may from time to time be employed. That might well be
held to be too uncertain but I think it reasonably clear that that cannot
have been intended: no rational person would insert provisions lake that.
I was surprised to learn that this botched clause has somehow found its
way into a standard book of precedents, so I realise that this matter may
be of some general importance.

If the clause is read in the way in which I think it must be read then
it is not suggested that there is any uncertainty about the first limb—any
person by whom Mr. Gulbenkian may be employed—but it is argued that
the other limb is bad for uncertainty. It would be bad if it purported to
impose on the trustees duties which, even with the aid of the Court, they
could not properly carry out. So one must first see what their duties are.
One argument, as I understand it, is that because this is admitted to be a
mere power, it really imposes no duties on them at all. I find that difficult
to understand. It is a power given not to the individuals who happen also
to be trustees but to the trustees as such so that new trustees duly assumed
or appointed can exercise it. In my view it must follow that the trustees
are to act in their fiduciary capacity. They are given an absolute discretion.
So if they decide in good faith at appropriate times to give none of the
income to any of the beneficiaries the Court cannot pronounce their reasons



2

to be bad. And similarly if they decide to give some or all of the income
to a particular beneficiary the Court will not review their decision. That
was decided by this House in Gisborne v. Gisborne, 2 App. Cas. 300, But
their " absolute discretion " must I think be subject to two conditions. It
may be true that when a mere power is given to an individual he is under
no duty to exercise it or even to consider whether he should exercise it.
But when a power is given to trustees as such, it appears to me that the
situation must be different. A settlor or testator who entrusts a power to
his trustees must be relying on them in their fiduciary capacity so they
cannot simply push aside the power and refuse to consider whether it ought
in their judgment to be exercised. And they cannot give money to a person
who is not within the classes of persons designated by the settlor: the
construction of the power is for the Court.

If the classes of beneficiaries are not defined with sufficient particularity
to enable the Court to determine whether a particular person is or is not,
on the facts at a particular time, within one of the classes of beneficiaries
then the power must be bad for uncertainty. If the donee of the power
whether or not he has any duty) desires to exercise it in favour of a
particular person it must be possible to determine whether that particular
person is or is not within the class of objects of the power. And it must
be possible to determine the validity of the power immediately it comes
into operation. It cannot be valid if the person whom the donee happens
to choose is clearly within the objects but void if it is doubtful whether
that is so. So if one can reasonably envisage cases where the Court could
not determine the question the power must be bad for uncertainty. But
it is not bad merely because such determination may be difficult in a
particular case. The Respondents have inserted in their Case at the
request of the trustees a statement that in the view of the trustees " it must
" be unlikely that they would in practice be able to exercise the said power
" or discretion except after obtaining a decision of the Court whether any
" particular suggested object thereof did or did not fall within the said
description ". That in itself is not sufficient to warrant a decision that the
power fails for uncertainty. It may be that there is a class of case where,
although the description of a class of beneficiaries is clear enough, any
attempt to apply it to the facts would lead to such administrative difficulties
that it would for that reason be held to be invalid. But that is not this case.

The class of persons to be considered in this case are those (a) in whose
house or apartments Mr. Gulbenkian is residing, (b) in whose company or
with whom he is residing and (c) under whose care or control he is residing.
It is often difficult in a particular case to determine whether a temporary
sojourn amounts to " residence ", but that is the kind of problem which
Courts often have to solve. And it is not much more difficult to say
whether a man is residing in another person's company or under another
person's care or control than it is to say whether he is residing in a
particular house. I therefore reject the Appellants' first argument.

Then the Appellants submitted a further argument, that a power is bad
for uncertainty unless it is possible to make a complete list of the possible
beneficiaries at the time when it falls to be exercised. It is said that
trustees cannot properly exercise their discretion unless they can survey the
whole field: otherwise there might be in existence potential beneficiaries
whom they might regard as more deserving than those who are known to
them. In my view that cannot be right. Suppose that a testator or settlor
empowers his trustees to give money to such of the descendants of X (or
former domestic servants of X) as they may in their absolute discretion
select: X may be the testator or settlor himself or anyone else. On the
face of it that power is perfectly valid, and it surely cannot become invalid
because before the power is exercised some descendant of X has emigrated
with his family and cannot be traced.

The Appellants found on Inland Revenue v. Broadway Cottages Trust
[1955] Ch 20. There the trustees had a duty to apply certain income for
the benefit of all or any one or more of certain defined classes of bene-
ficiaries in such shares proportions and manner as the trustees in their



3

discretion might from time to time think fit. Admittedly those classes
were sufficiently precisely defined to make it possible to determine whether
any particular individual was or was not eligible. But the classes were so
wide that it was admitted to be impossible to make a complete list of
those comprised in them. This was held to involve uncertainty so as to
make the provisions void. That seems to me to be a very odd kind of
uncertainty. Does it involve the proposition that if at first all potential
beneficiaries are identifiable then the provision is valid, but that if for
some reason, such as some of them disappearing, it later becomes impossible
to make a list of all the survivors then the provision becomes invalid? I
could understand it being held that if the classes of potential beneficiaries
were so numerous that it would cost quite disproportionate enquiries and
expense to find them all and discover their needs or deserts, then the
provision would fail. But that would not be on the ground of uncertainty
as that term is generally understood. I gravely doubt some of the arguments
used by the Court of Appeal.

I will not deal with the authorities in detail because I think that the
present position of the law is far from satisfactory. I agree with criticism
by Lord Evershed in Re Hain [1961] 1 W.L.R. 440. by Sachs L.J. in
Darwen v. Leek [1968] 2 W.L.R. 1385 and by Lord Denning M.R. in the
present case. This case can be decided on the grounds suggested by my
noble and learned friend, Lord Upjohn, and it is not an appropriate case
for a review of the law. But I trust that there may be an early opportunity
for reconsideration of some of the narrow and technical distinctions which
have grown up in this chapter of the law.

I would dismiss this appeal.

Lord Hodson

MY LORDS,

I have had the advantage of reading the opinion of my noble and learned
friend, Lord Upjohn. I agree with it and would dismiss the appeal.

Lord Guest

my lords.

I have had the advantage of reading the opinion of my noble and learned
friend, Lord Upjohn. I agree with it and would dismiss the appeal.

Lord Upjohn

MY LORDS,

On the 31st May, 1929, the late Mr. Calouste Sarkis Gulbenkian made a
Settlement expressed to be in consideration of his natural love and affection
for his son Nubar Sarkis Gulbenkian, one of the Respondents, who, how-
ever, has taken no part in the argument, for he has assigned away his
rights, if any, to income during his life ; I shall call him " the son ".
The first operative clause of the Settlement was Clause 2(i) in these terms

" 2. (i) The Trustees shall during the life of the said Nubar Sarkis
" Gulbenkian at their absolute discretion pay all or any part of the
" income of the property hereby settled and the investments for the
" time being representing the same (hereinafter called the Trust Fund)
" to or apply the same for the maintenance and personal support or
" benefit of all or any one or more to the exclusion of the other or
" others of the following persons namely the said Nubar Sarkis
" Gulbenkian and any wife and his children or remoter issue for the
" time being in existence whether minors or adults and any person
" or persons in whose house or apartments or in whose company or
" under whose care or control or by or with whom the said Nubar Sarkis
" Gulbenkian may from time to time be employed or residing and the
" other persons or person other than the Settlor for the time being
" entitled or interested whether absolutely contingently or otherwise



4

" to or in the trust fund under the trusts herein contained to take effect
" after the death of the said Nubar Sarkis Gulbenkian in such propor-
" tions and manner as the Trustees shall in their absolute discretion
" at any time or times think proper.

" (ii) Subject to the discretionary trust or power hereinbefore contained
" the Trustees shall during the life of the said Nubar Sarkis Gulbenkian
" hold the said income or so much thereof as shall not be paid or
" applied under such discretionary trust or power upon the trusts and
" for the purposes and for which the said income would for the time
" being be held if the said Nubar Sarkis Gulbenkian were then dead."

After the death of the son the capital and future income of the Trust Fund
was to be held upon terms with which your Lordships are not concerned.

On the 18th July, 1938, the father made another Settlement by way of
further provision for the son. During the lifetime of the son the income was
to be held upon trusts similar to those set out above save that the words
" or in whose company or under whose care or control" are omitted, but
Counsel on neither side has sought to differentiate between the two Settle-
ments on this ground and I shall therefore refer only to Clause 2 (i) of the
1929 Settlement.

The whole question before your Lordships is whether that clause is void
for uncertainty or whether the clause is valid so that the son is an object
of the discretion. If so, certain subsidiary questions are raised by the
Originating Summonses which have been issued, but these questions are not
before your Lordships.

My Lords, upon the main arguments presented to your Lordships the
decision upon this matter lies in a very small compass though, in view of
the secondary argument of the Respondents with which the majority of the
Court of Appeal agreed, I shall have later to deal with the issues rather
more generally.

It is agreed between the parties that the discretion to the Trustees in
Clause 2 (i) to pay all or any part of the income of the Trust Fund at their
absolute discretion to one or more of the persons therein mentioned to the
exclusion of the other or others or to apply it for their maintenance support
or benefit is a mere or bare power or a power collateral, as it is sometimes
called. It is not a trust power: the Trustees have no duty to exercise it in
the sense that the Court has any power to compel the Trustees to exercise
it or to exercise it itself if the Trustees refuse or neglect to do so. In so far
as the power is not exercised by the Trustees or if it is void for uncertainty,
the income falls to be held upon the Trusts declared by Clause 2 (ii)

It is curious that there is no long line of decided cases as to what is the
proper test to apply when considering the validity of a mere power when the
class of possible appointees is or may be incapable of ascertainment, but
there is a body of recent authority to the effect that the rule is that provided
there is a valid gift over or trust in default of appointment (which was
fundamental to the decision of Clauson J. in Re Park [1932] 1 Ch. 580) a
mere or bare power of appointment among a class is valid if you can with
certainty say whether any given individual is or is not a member of the
class; you do not have to be able to ascertain every member of the class.

This was stated by Harman J. in Gestetner [1953] Ch. 672, followed by
Roxburgh J. in Re Coates [1955] Ch. 495 and by me in Re Sayer [1957]
Ch. 423. Its reasoning was, I think, approved in the Court of Appeal in
Inland Revenue Commissioners v. Broadway Cottages Trust [1955] Ch 20;
I say that because it is a little difficult to know whether on pages 32 and 33
Jenkins L.J. was doing more than setting out the Crown's argument. I note
that Danckwerts L.J. (probably rightly) treated it in the Court below as part
of the judgment of the learned Lord Justice.

And the rule was in general terms approved by Evershed M.R. in Re Hain
[1961] 1 W.L.R. 440 at 445. Counsel for the Appellants submits the fore-
going authorities correctly state the law and on his first line of argument
Counsel for the Respondents agrees.

5

Let me assume, then, for the present that is the right test. Does Clause 2(i)
satisfy that test or is it too uncertain? A very similar clause came before
Harman J. in Re Gresham [1956] 1 W.L.R. 573 and he held it void for
uncertainty even after construing it, as he described it, " benevolently ".

Counsel for the Appellants argued that you must give the words used their
literal meaning and then apply the test to see whether you can predicate
with certainty whether a given individual is or is not within the class and
no modification of the literal language is permissible to make sense of it. This
argument is based on a fallacy.

There is no doubt that the first task is to try to ascertain the Settlor's
intention, so to speak, without regard to the consequences, and then, having
construed the document, apply the test. The Court, whose task it is to
discover that intention, starts by applying the usual canons of construction;
words must be given their usual meaning, the clause should be read literally
and in accordance with the ordinary rules of grammar. But very frequently,
whether it be in wills, settlements or commercial agreements, the application
of such fundamental canons leads nowhere, the draftsman has used words
wrongly, his sentences border on the illiterate and his grammar may be
appalling. It is then the duty of the Court by the exercise of its judicial
knowledge and experience in the relevant matter, innate commonsense and
desire to make sense of the settlor's or parties' expressed intentions, however
obscure and ambiguous the language that may have been used, to give a
reasonable meaning to that language if it can do so without doing complete
violence to it. The fact that the Court has to see whether the clause is
" certain " for a particular purpose does not disentitle the Court from doing
otherwise than, in the first place, try to make sense of it.

My Lords, I do not think the late Mr. Withers' language (if indeed he was
responsible for the draftsmanship) is open to very serious criticism ; the clause
it is true ran together too many possible situations and did so rather ungram-
matically, but its general object was clear ; it was a " spendthrift " clause and
must be read in the light of that general intention and construed with the
object to giving effect to it if it is possible to do so.

I adopt the construction propounded by Harman J. in Gresham with amend-
ments. I do not regard his construction as benevolent in the least degree
but as the proper construction of the Settlor's imperfectly expressed language;
indeed, I do not regard my own interpretation of his language as perfect;
it is merely sufficient for the decision of this case.

So I would read the relevant words in this way :
After the words—

" the said Nubar Sarkis Gulbenkian and any wife and his children or
" remoter issue for the time being in existence whether minors or
" adults "

I would paraphrase the words of the Clause thus :—
" and any person or persons by whom the son may from time to time
" be employed and any person or persons with whom the son from time
" to time is residing whether in the house or apartments of such person
" or persons or whether in the company or under the care or control
" of such person or persons ".

Is such a clause too vague and indefinite to satisfy the test, namely, whether
a given person is within or without the class? Even adopting this construction
Counsel for the Appellants argued that it was uncertain and Harman J. thought
so because of the difficulty of the interpretation of the word " residing ".

In a very careful argument Counsel for the Appellants advanced a number
of points which he submitted showed there were 14 cases where the Trustees
would have an impossible task to execute, but these alleged impossibilities
can be classified I think under four headings; uncertainty upon the meaning
of

1. "Residing"

2. persons " with whom " the son is residing

3. persons " in whose company ' the son is residing

4. persons " under whose care or control" the son is residing.




6

My Lords, upon this matter I agree entirely with the Court of Appeal. Many
difficult and borderline cases may occur in any one of these situations. But
mere difficulty is nothing to the point. If the Trustees feel difficulty or even
doubt upon the point the Court of Chancery is available to solve it for them.
It solves many such problems every year. I cannot for myself see any
insuperable difficulty arising in the solution of any given state of affairs
which would make it necessary to hold that the relevant clause as I have
construed it fails to comply with the test. Of course I have not overlooked
Sifton v. Sifton [1938] AC 656 but that was the entirely different case of a
divesting clause. In my opinion, this clause is not void for uncertainty, and
the Court of Appeal were quite right to overrule the decision of Harman J.
in Re Gresham, where he held a similar clause was void on that ground.

My Lords, that is sufficient to dispose of the appeal, but, as I have
mentioned earlier, the reasons of two members of the Court of Appeal went
further and have been supported by Counsel for the Respondents with much
force and so must be examined.

The Master of the Rolls propounded a test in the case of powers collateral.
namely, that if you can say of one particular person meaning thereby,
apparently, any one person only that he is clearly within the category the
whole power is good though it may be difficult to say in other cases whether
a person is or is not within the category, and he supported that view by
reference to authority. Winn L. J. said that where there was not a complete
failure by reason of ambiguity and uncertainty the Court would give effect
to the power as valid rather than hold it defeated since it will not have wholly
failed, which put—though more broadly—the view expressed by the Master
of the Rolls. Counsel for the Respondents in his second line of argument
relied upon these observations as a matter of principle but he candidly
admitted that he could not rely upon any authority. Moreover, the Master
of Rolls expressed the view that the different doctrine with regard to trust
powers should be brought into line with the rule with regard to conditions
precedent and powers collateral [1967] 3 W.L.R. 1115 G.

So I propose to make some general observations upon this matter.

If a donor (be he a settlor or testator) directs trustees to make some specified
provision for " John Smith ", then to give legal effect to that provision it
must be possible to identify " John Smith ". If the donor knows three John
Smiths then by the most elementary principles of law neither the Trustees
nor the Court in their place can give effect to that provision ; neither the
Trustees nor the Court can guess at it. It must fail for uncertainty unless of
course admissible evidence is available to point to a particular John Smith
as the object of the donor's bounty.

Then, taking it one stage further, suppose the donor directs that a fund
or the income of a fund should be equally divided between members of a
class. That class must be as defined as the individual; the Court cannot
guess at it. Suppose the donor directs that a fund be divided equally between
" my old friends ", then unless there is some admissible evidence that the
donor has given some special " dictionary " meaning to that phrase which
enables the Trustees to identify the class with sufficient certainty, it is plainly
bad as being too uncertain. Suppose that there appeared before the Trustees
(or the Court) two or three individuals who plainly satisfied the test of being
among " my old friends " the Trustees could not consistently with the donor's
intentions accept them as claiming the whole or any defined part of the fund.
They cannot claim the whole fund for they can show no title to it unless
they prove they are the only members of the class, which of course they
cannot do, and so, too, by parity of reasoning they cannot claim any defined
part of the fund and there is no authority in the Trustees or the Court to
make any distribution among a smaller class than that pointed out by the
donor. The principle is, in my opinion, that the donor must make his inten-
tions sufficiently plain as to the objects of his trust and the Court cannot
give effect to it by misinterpreting his intentions by dividing the fund merely
among those present. Secondly, and perhaps it is the more hallowed principle,
the Court of Chancery, which acts in default of trustees, must know with
sufficient certainty the objects of the beneficence of the donor so as to execute



7





the trust. Then, suppose the donor does not direct an equal division of his
property among the class but gives a power of selection to his trustees among
the class; exactly the same principles must apply. The Trustees have a
duty to select the donees of the donor's bounty from among the class
designated by the donor; he has not entrusted them with any power to select
the donees merely from among known claimants who are within the class,
for that is constituting a narrower class and the donor has given them no
power to do this.

So if the class is insufficiently defined the donor's intentions must in such
cases fail for uncertainty. Perhaps I should mention here that it is clear
that the question of certainty must be determined as of the date of the
document declaring the donor's intention (in the case of a Will, his death).
Normally the question of certainty will arise because of the ambiguity of
definition of the class by reason of the language employed by the donor, but
occasionally owing to some of the curious settlements executed in recent
years it may be quite impossible to construct even with all the available
evidence anything like a class capable of definition (Re Sayer (supra)), though
difficulty in doing so will not defeat the donor's intentions (Re Hain (supra)).
But I should add this: if the class is sufficiently defined by the donor the
fact that it may be difficult to ascertain the whereabouts or continued existence
of some of its members ait the relevant time matters not. The Trustees can
apply to the Court for directions or pay a share into Court.

But when mere or bare powers are conferred upon donees of the power
(whether Trustees or others) the matter is quite different. As I have already
pointed out, the Trustees have no duty to exercise it in the sense that they
cannot be controlled in any way. If they fail to exercise it then those
entitled in default of its exercise are entitled to the fund. Perhaps the
contrast may be put forcibly in this way: in the first case it is a mere
power to distribute with a gift over in default; in the second case it is a
trust to distribute among the class defined by the donor with merely a
power of selection within that class. The result is in the first case even
if the class of appointee among whom the donees of the power may appoint
is clear and ascertained and they are all of full age and sui juris, nevertheless
they cannot compel the donees of the power to exercise it in their collective
favour. If, however, it is a trust power, then those entitled are entitled
(if they are all of full age and sui juris) to compel the Trustees to pay the
fund over to them, unless the fund is income and the Trustees have power
to accumulate for the future.

Again the basic difference between a mere power and a trust power is
that in the first case Trustees owe no duty to exercise it and the relevant
fund or income falls to be dealt with in accordance with the trusts in
default of its exercise, whereas in the second case the Trustees must exercise
the power and in default the Court will. It is briefly summarised in
Halsbury, 3rd edition, volume 30, paragraph 445: " The Court will not
" compel trustees to exercise a purely discretionary power given to them
" but will restrain them from using it improperly and if coupled with a duty
" will compel them to perform their duty ". It is a matter of construction
whether the power is a mere power or a trust power and the use of
inappropriate language is not decisive (Wilson v. Turner, 22 Ch D 521
at 525).

So, with all respect to the contrary view, I cannot myself see how,
consistently with principle, it is possible to apply to the execution of a
trust power the principles applicable to the permissible exercise by the donees
(even if trustees) of mere powers; that would defeat the intention of
donors completely.

But with respect to mere powers, while the Court cannot compel the
Trustees to exercise their powers, yet those entitled to the fund in default
must clearly be entitled to restrain the Trustees from exercising it save
among those within the power. So the Trustees or the Court must be able
to say with certainty who is within and who is without the power. It is
for this reason that I find myself unable to accept the broader proposition



8

advanced by Denning, M.R. and Winn, L.J. mentioned earlier, and agree
with the proposition as enunciated in Re Gestetner and the later cases.

My Lords, I would dismiss this appeal.

Lord Donovan

MY LORDS,

Where trustees are given power to make payments out of a trust fund
to members of a designated class, then if the trustees have a complete
discretion as to whom they shall pay the money, or as to whether they
shall make any payment at all. I see no reason why the whole clause should
be regarded by the law as void for uncertainty simply because some members
of the designated class might be unascertainable. It is true that this
means that such members will never even get considered as possible objects
of the trustees' discretion, but I regard that result as less unfortunate than
depriving all the ascertainable members of any chance of benefit. I find
myself therefore in complete sympathy with the rule that provided one can
say with certainty whether a given individual is or is not a member of the
class, the power collateral (as it is called) does not fail altogether simply
because a complete list of every member cannot be drawn up.

The Appellants in the present case, however, contend that the Trustees
could not say with certainty that any given individual was a member of
the class. Suppose, for example, that a particular claimant presented himself
and said that Mr. Nubar Gulbenkian was " residing " with him. What tests
would the Trustees apply to determine such " residence "? Would a short
stay of a week be enough, or must there be something more enduring about
the stay? The Trustees might even have to go further and ask themselves
whether Mr. Gulbenkian was residing or employed under the care and
control of the claimant. How would they decide what " care and control "
meant in this context? I would agree that if one attempted an exhaustive
definition of the persons and circumstances envisaged by the settlor when
putting his signature to a settlement containing these words, the task would
be impossible. But that simply means, I think, that one cannot determine
at the outset all those persons comprised in the class—which is not fatal
to the clause. When, however, a particular claimant presents himself, I
think it is going too far to assert that the question whether he is qualified
or not would be unanswerable. Take the word " residing " for example.
There are numerous cases where the Courts have had to decide whether
" A" was residing within the United Kingdom, or even " ordinarily"
residing there: and though some of these problems were certainly difficult
none was insuperable. If the Trustees were in doubt upon the matter,
they could seek the ruling of the Court, which in my opinion would be
forthcoming, not only as regards the question of " residing ", but also on
the problems raised by the words " care and control", " employed" and
so on. I agree, therefore, that the clause is not void for uncertainty. I
should, however, like to associate myself with the criticism of my noble
and learned friend, Lord Reid, of the language of the provision in dispute.
I have never understood why some conveyancers should regard it as beneath
their dignity to employ sub-paragraphs in a clause, so as to make their
meaning plain. Much trouble and expense would have been avoided had
that been done here.

Other matters were canvassed before your Lordships. First, suppose
that one individual alone is certainly within the class ; does the power
collateral remain good even though the identity of the remainder of the
class is uncertain: in other words, even though it would be impossible to
say that any one given claimant out of the remainder was or was not
within the class? The Master of the Rolls and Lord Justice Winn appear
to think that certainty as regards one particular person only would be good
enough: whereas hitherto the decided cases seem to have laid down that
one must be able to tell of any given claimant whether he is within the



9

class or not, even though it may be impossible to make a complete list of
the persons within the class. My noble and learned friend, Lord Upjohn,
deals with this matter in his opinion, and while I am inclined to share his
view I would reserve my opinion upon it, since in this case it would be
purely obiter.

Second, it has been suggested that it is irrational that in the case of a
power which imposes a trust on the donee it should be necessary to the
validity of the power that the whole range of objects eligible for selection
should be capable of ascertainment, although this is not required in the
case of a power collateral. At the moment I do not share this view. Nor
did the Court of Appeal in I.R.C. v. Broadway Cottages Trust ([1955] 1 Ch.
at page 36) for they described it as based on sound reasoning. This reasoning
is developed in the opinion of my noble and learned friend, Lord Upjohn,
and I agree with it. I say no more upon the matter for the point does not
presently arise for decision.

I agree that the appeal should be dismissed.

(318582) Dd.l96999 200 10/68 St.S.