De Vere's Will Trusts, Re. Jellet v O'Brien

• Jurisdiction: Ireland
• Judgment Date: 22 November 1961
• Date: 22 November 1961
• Docket Number: (1959. No. 1070.)
• Court: High Court

(1959. No. 1070.)

In re De Vere's Will Trusts. Jellett v.

In the Matter of the Trusts of the Will dated the 30th day of November, 1934, of Robert Stephen Vere de Vere

deceased.

Between HEWITT BARRINGTON JELLETT and DERYK KING WATERSTONE, Plaintiffs, and MORROGH VERE OBRIEN and COLM MORROGH VERE OBRIEN

Defendants.

Will - Construction - Name and arms clause - Validity - Condition subsequent - Uncertainty.

Summary Summons.

Robert Stephen Vere de Vere, the testator, died on the 15th September, 1936, having made his last will on the 30th November, 1934. The plaintiffs, Hewitt Barrington Jellett and Deryk King Waterstone, as trustees of his will, brought a summons in the High Court for the determination of questions arising on the construction of the said will. The first-named defendant, Murrogh Vere OBrien, was the tenant for life and the second-named defendant was the eldest son of the first-named defendant.

The relevant facts have been summarised in the headnote and are fully stated in the judgment of Budd J., post.

By his will a testator settled estates known as the Curragh, Bohard and Courtbrack estates and all other his real estate, on his wife, I. C. de V., for life with remainder to the use of any one or more of his cousins thereinafter named or their respective issue for such estates or estate interests or interest and in such manner as his wife should by deed or will or codicil appoint, with remainders in default of appointment.

Clause 8 of the will provided:—"I declare that every person who under the limitations hereinbefore contained becomes entitled as tenant in tail male or in tail by purchase to the possession or the receipt of the rents and profits of the premises hereby settled shall unless prevented by death or accident take use and bear and continue to use and bear in all deeds and writings which he or she shall sign and upon all occasions the surname of"de V. "either without any other or with and after any other surname and also use and continue to use the arms of" de V. "or quarter the same with his or her family arms and apply for and endeavour to obtain the Royal licence or take such other steps as may be requisite to authorise the user and bearing of the said surname and arms and further that in case any person becoming so entitled shall refuse or neglect to take use and bear the surname and arms aforesaid or to take such steps as aforesaid or shall at any time discontinue to use and bear the surname and arms aforesaid then and in every such case if the person who shall so refuse or neglect or discontinue as aforesaid should be tenant for life the estate for life of that person and all powers annexed thereto shall absolutely determine and become void."

After making provisions in case such determination should take place the clause continued:—"Provided also that in every case (except a case of discontinuance to use and bear the surname and arms aforesaid) one year from the date when the obligations became binding shall be allowed for compliance therewith and (except in a case of discontinuance as aforesaid) the proviso for the cesser of estates shall be postponed accordingly but shall take effect immediately upon the expiration of such one year if the obligations have not then been complied with."

I. C. de V. appointed that all the property subject to the trusts of the testator's will should go to the first-named defendant for his life and after his death to his first and every other son successively according to seniority in tail male, with remainder over. The deed of appointment contained the following proviso:—"The provisions of the said will as to taking and using the surname and using or quartering the arms of 'de V.' and the determination and avoidance of the estate of any person refusing or neglecting to take and use the said surname and use and quarter the said arms or discontinue to use the said surname or to use or quarter the said arms shall apply to the persons to whom estates for life or in tail male are hereby limited as if the same were herein repeated and expressed mutatis mutandis."

I. C. de V. died on the 9th January, 1959.

The first-named defendant refused to adopt the name and arms of de Vere and more than one year had passed since the death of I. C. de V.

Held by Budd J. that the defeasance clause was void for uncertainty.

In re Montgomery, deceased, 89 I. L. T. R. 62 considered and applied;Clayton v. Ramsden[1943] A. C. 320; In re Bouverie[1952] Ch. 400; In re Wood's Will Trusts[1952] Ch. 406; In re Kersey [1952] W. N. 541; In re Murray[1955] 1 Ch. 69; In re Neeld[1960] Ch. 455; In re Callaghan[1937] I. R. 84 considered.

Budd J. :—

This is a summons in which questions are asked as to the validity of a name and arms clause in the will of Robert Stephen de Vere. The testator made his will, dated 30th November, 1934, and appointed as his executors and trustees thereof his wife, Isabel Catherine de Vere, and his cousins, Dudley Spencer Perceval, Donough Richard O'Brien and James Burke Cole. He died on the 15th September, 1936, and probate of his will was granted forth of the Principal Probate Registry on the 14th January, 1943. Having made

certain dispositions with which I am not here concerned the testator, by clause 6 of his will, devised his Curragh, Bohard and Courtbrack estates and all other real estate to the use of his wife, Isabel Catherine de Vere, during her life with remainder (the only one here relevant) to the use of any one or more of his cousins thereinafter named or their respective issue for such estates or estate, interests or interest and in such manner as his wife should by deed or will or codicil appoint, with remainders in default of appointment.

Then by clause 8—and this is the principal clause I have to construe—he provided as follows:—"I declare that every person who under the limitations hereinbefore contained becomes entitled as tenant in tail male or in tail by purchase to the possession or the receipt of the rents and profits of the premises hereby settled shall unless prevented by death or accident take use and bear and continue to use and bear in all deeds and writings which he or she shall sign and upon all occasions the surname of de Vere either without any other or with and after any other surname and also use and continue to use the arms of de Vere or quarter the same with his or her family arms and apply for and endeavour to obtain the Royal licence or take such other steps as may be requisite to authorise the user and bearing of the said surname and arms and further that in case any person becoming so entitled shall refuse or neglect to take use and bear the surname and arms aforesaid or to take such steps as aforesaid or shall at any time discontinue to use and bear the surname and arms aforesaid then and in every such case if the person who shall so refuse or neglect or discontinue as aforesaid should be tenant for life the estate for life of that person and all powers annexed thereto shall absolutely determine and become void." There follow provisions for the shifting of the estate should such aforesaid determination take place. The clause then continues:—"Provided also that in every case (except a case of discontinuance to use and bear the surname and arms aforesaid) one year from the date when the obligations became binding shall be allowed for, compliance therewith and (except in a case of discontinuance as aforesaid) the proviso for the cesser of estates shall be postponed accordingly but shall take effect immediately upon the expiration of such one year if the obligations have not then been complied with."

By clause 11 of his will the testator left certain chattels as heirlooms in such manner that the same should go and devolve in the same manner as if they had been freeholds of inheritance and had been included in the devise in settlement thereinbefore contained.

The testator died without issue and, without having altered his will. His widow, Isabel Catherine de Vere, made a deed of appointment relating to the property on the 22nd January, 1943, but we are not now concerned with that deed. On the 2nd July, by deed poll of revocation and appointment, in exercise of the powers given by the testator's will, the widow revoked the deed of appointment of the 22nd January, 1943, and appointed in favour of Morrogh Vere OBrien, the first-named defendant in this suit.

By this deed Isabel Catherine de Vere appointed and directed that all the property subject to the trusts of the testator's will should go to Morrogh Vere OBrien for his life and after his death to the first and every other son of the said Morrogh Vere OBrien successively according to seniority in tail male, with remainders over.

This appointment was subject to the following proviso:—"The provisions of the said will as to taking and using the surname and using or quartering the arms of de Vere and the determination and avoidance of the estate of any person refusing or neglecting to take and use the said surname and use and quarter the said arms or discontinue to use the said surname or to use or quarter the said arms shall apply to the persons to whom estates for life or in tail male are hereby limited as if the same were herein repeated and expressed mutatis mutandis."

Isabel Catherine de Vere died on the 9th January, 1959, without having revoked the deed of appointment, dated the 2nd July, 1953.

In a memorandum addressed to the trustees of the testator's will and dated the 28th October, 1959, the defendant, Morrogh Vere OBrien, declined to take the name and arms of de Vere and gave his reasons for so doing. He has two sons—the second-named defendant, Colm...