BURROUGH v PHILCOX

The intention to bequeath when drafting a well organised and thoroughly considered will, remains the deciding authority of the testator; and so, when perhaps vital elements to that redistribution are left wanting, the power falls to the court to compel the wishes of the deceased in as full a manner as possible, as was found in this potentially convoluted suit.

Having given tremendous thought to the lifetime of his estate, and the unavoidable dilemma of untimely deaths, the deceased had made express stipulations as to the execution of his legacy should his immediate  progeny die, while this caveat was made clear by the words:

“[I]n case my son and daughter should both of them die without leaving lawful issue, then for the said estates to be disposed of as shall be hereinafter mentioned (that is to say), the longest liver of my two children shall have power, by a will, properly attested, in writing, to dispose of all my real and personal estates amongst my nephews and nieces or their children, either all to one of them, or to as many of them as my surviving child shall think proper.”

And so, in the sad event that his two children were unable to live long enough to bear children, or oversee the disposition of his estate as he had wished, the matter was presented to the Court of Chancery to establish if when dying, the power to assign to those in vivo was relinquished, or if the estate was to remain in trust for the benefit of those now dead.

After much deliberation, and a reinvestigation of a number of arguable precedents, the court turned to Brown v Higgs; in which, it was held that within circumstances where those granted executory powers have passed, the will itself becomes a mere trust, and therefore:

“[T]he trustee having died without executing it, or transgressing it, or refusing to execute it, shall not prevent its being held an absolute benefit for the objects, with a power to give a preference.”

Brown v Higgs

Thus, the court held that where a will or codicil is deliberate enough to provide express use of its power, the court is granted proper authority to ensure that its instructions are followed both with judicial impartiality and honest justiciability, therefore the will was enforced and the proper class of beneficiaries shown due privilege, while the court also held that:

“[W]hen there appears a general intention in favour of a class, and a particular intention in favour of individuals of a class to be selected by another person, and the particular intention fails, from that selection not being made, the Court will carry into effect the general intention in favour of the class.”

RE SLATER

The power of legislation to effect a disturbance in the bequeathment of company shares, provides the footing of a claim against ademption when a testator’s wishes fall victim to the dissolution of an established utility company.

Having taken the steps to leave a specific legacy to his sister in a will drafted little over year before his death, the testator expressed that:

“To Catherine Pontin Slater I bequeath the interest during her life arising from money invested in the following…Lambeth Waterworks Company.”

Unfortunately, eleven months after his declaration had been formalised, Lambeth Waterworks Company was acquired by Metropolitan Water Board under the powers provided for in the Metropolis Water Act 1902, whereupon shareholders were issued Metropolitan stock to the same values as before.

At the point of death, the executors challenged under summons, the existence of the new shares on principle that despite their reassignment, the Lambeth Waterworks Company shares were equally visible, despite the change of form preceding the will’s completion.

The first court disagreed, and referred to the principle of ademption under section 24 of the Wills Act 1837 which reads:

“[E]very Will shall be construed, with reference to the Real Estate and Personal Estate comprised in it, to speak and take effect as if it had been executed immediately before the Death of the Testator, unless a contrary Intention shall appear by the Will.”

This translated that despite the previous reference to Lambeth Waterworks Company and the resulting transferral from Lambeth stock to Metropolitan stock, there could be no correlation between the two sources, other than by the nature of their business.

Upon rejection of the claim, the executors appealed, whereupon the Court considered recent cases, that while supportive in their construction, offered little to uphold a challenge to the clarity provided for by the 1837 Act.

It was for this simple reason that the Court dismissed the appeal and allowed for the shares to lapse into the residual estate, while the court reminded the parties that:

“[Y]ou have to ask yourself, Where is the thing which is given? If you cannot find it at the testator’s death, it is no use trying to trace it unless you can trace it in this sense, that you find something which has been changed in name and form only, but which is substantially the same thing.”

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