Claud Denvers Richards & Other & Eustace De Kola. Richards & Ors [1922] SLCA 10 (14 February 1922)

14th Ftbruary 1922. 4F CLAUD DA.XYERS IUCHAHDS & Other.:; Appellants. v. EUSTACE de KOLA. RICHARDS & Others Respondents. Originating summons-Constr?l ction of will-Special power of appointment among " children " -General power of ap­ pointment-lnterp1·etation of w01·ds in a will by words in subsequent cod1'cil-Paymcnt of costs by Trustees in absence of misconduct. Elizabeth Davies, by her will , dc,·ised premises to her son, Jooeph D. Richards, for life, with a special power of appointment among his children, limitations over in default of the exercil':e of this special power and a general power of appointment to J. D. Richards . '!'here was also a. subs~>­ quent codicil to the will of Elizabeth Dtwies benefiting certain named natural child1·en of J. D. Richards. J. D. Richards ne>er married, but had illegitimate children by two different women. The Plaintiffs-Hespondents were the c·hildren of the first family, and were all born at the date of Elizabeth DaYies' will. 'fhe Defendant s-Appellants were the children of the second family. These were not bom at the date of Elizabeth Davies' will. Held, reversing the judgment of the l' llll't be"''·, that the special power of appointment was incapable of being excrci,ed by J. D. Hichards owing to the fact that he had no legit imat e children, aud ihat Lho general power ,·ested in him was exercised by him by express refe1·ence in his will, and executed under the proYisions of section 27 of the Wills .Act. Appeal from u juclg:meut o£ Yan der ~1cu1rJ•, .T .. iu tl1e ~tqHeme Court of the Colony o£ Gambia. Wright £or Appellants cites:- Boyes & Cook, L.R., 14 Ch. D., p. 53. Lewis v. Green, I •. R. (1905), 2 Ch., p. 344. llalsbury, Laws of Eng-land, Vol. 23, pp. 28, 29, 33. Encyclopredia of Forms and Prec edents, Vol. 12, p. 1Ci. Ilalsbury, Vol. 28, pp. 135-136. l\ote "D." Dorin v. Dorin, 1 Cb. App., p. 586. Re Pembroke (1890), 63 L.T., 159. Alliance Insurance Co. v. Franci s, 1914, 1 Ch. D., p. 254. Farwell on Powers, 2nd Edition, pp. 9 and 463. \Vilis Act, 1837. IJalsbur~·. Vol. 23, p. 293. Airey 1• . Bower, I •. R., 12 4\ .0., p. 263. l!"arwell on r ower<;, pp. 106-107. Tiabbnr~·, \ ol. 28, pp. 1;)9-WO. Ill re C'hennell, Toll('~ r. Chennell, 8 Ch. D., p. 492. -19 Graham for Respondents cites :­ Halsbury, Vol. 23, p. 58. Jarman on Wills, Yol. II., pp . 17'46-1754, 1760 and 1780. l>ANVERS RtCliARDS AXD OTHERS v. DE KOLA RICJIA.RDS O'Loughlin v. Bellew, 1906, Irish Reports 481. AND OTRERS Re Loveland, Loveland v. Lo>eland (1906), 1 Ch., PURCllr.r., C.J p. 542. Paul v. Children, L.n .. , 12 Eq., p. 16. PURCELL, C.J. This is an appeal from the Supreme Court of the Gambia from a judgment delivered by Sir Frederick Van der :Ueulen on the 18th of June, 1919. This appeal raises questions ·with regard to the construction of the ~Tills of two persons, mother and son. The method chosen by the Plaintiffs (Respondents in this appeal) was to bring the matter before the Court on an Originating Summons and at the trial it is to be observed that Mr. Roberts on behalf of the Defendants (now the Appellants) raised a preliminary objection, such· objection being that the Court had no jurisdiction to deal with this matter on an Originating Summons when the claim of the Plaintiffs was ad>erse to that of the Defendants, and cited authorities for his objection which it is unnecessary now for me to deal with. 'l'he Court overruled the objection and proceeded to deal with the matter. Mr. ·wright, who appeared for the Appellants, took the same preliminary objection when the appeal was argued before us, and without 'going into the matter and without expressing any definite opinion on lhe question invoh- ecl, we felt, in view of all that happened, especially in regard to the length of time which had elapsed since this litigation first began, that it would be a grave misfortune, to say the least of it, if the appeal succeeded on such a ground . The learned Judge exercised his discretion and allowed this matter to be dealt with on an Originating Summons, and for the reasons I have just stated we felt, all things considered, that it would be tbe best way for us to deal with it. \Vith all respect to the learned Judge, I think it highly probable, knowing as much as 1 do about this case at the present time, that I should have refused to have dealt with it by way of an Originating Summons had I been the .T udge in the Court below. In my opinion the record in this case leaves much to be desired, and from the way the matter was presented to the Court, as appearing from the notes, it is somewhat difficult to discover what it is all about. As I laboriously conned the pages DANVERS RICRARDS A~D OTliEIUI t•. n£ KoLA RICHARDS A~ I) OTHERS. Prn<:n.L, C~. 50 o£ the record I could not help recalling those words of the late Lord 'f ennyson - " Mastering the lawless science of our law, ·· That codeless myriad of precedent, " That wilderness of single instance:;." Had this matter come before the Court in the ordina ry way, that is, in the form o£ an action for a dl'elnration, with pleadings and, as I suppose, a considered judgment, our task would ha>e been far easier than it has been. llowewr, perhaps l have said enough about this and I ·will now proceed to come to close quarters with the case itself. These proceedings were brollght in order to uecide whether or nol Joseph Dn>isson Richards, deceased, had in his Will properly exercised the General Power of Appoinlmetlt which was vested in him by the will of his mother, Elizabeth Davies , deceased . This man Joseph Davisson Rich::nds had never married, but had two families by two women-II:mnah Elliott and Tassin K'jie . Plaintiffs (HespolHlentR), with the exceptio n of Annette, are children of Hannah Elliott. Two of the Defendants (Appellants), of the name of Richards, are the children of Tassin X'jie. It is to he notC'd that thP Will of Elizabeth DaYies ;;;: app<neutly well dnl\\n, either because it had been copied from some Jlrec e lent, or heeause the draughts ­ man knew his business. It contained in a form Yery usually adopted in wills and settlements the following limitations :- (1) .A special or limite(! power of appointment to .Joseph Davisson Richards amongst hi~ children. (2) Limitations oYer, in default of exercise of the special or limited power. (3) J.. charge on the rents of the premises in question. (4) A general power o£ appointment to Joseph Davisson Richards . The first question which arises for con:~idcration is, was the :;pecial po,Yer exercised by Joseph Davisson Hichards? It is admitted on all hands that it was not <'XCr('ised and the refore with regard to tha.t point there is no controversy . The next point that arises for considcrnt ion is, was it possible for Joseph Davisson Richards to exorcist> tl1e special power of appointment gi>en to him, in othC'r words dicl t11e objects of the Rpecial power fail? The answer must be in the affirmative, hecause the objects of the power of appointment to him were his " children " which in law prima facie must he legitimate children, as was decided in Hill v. Crol)k, 42 L .. T. Ch., p. 702, ( 0' r . . ' / . ) .. ,(, . ' _.· 51 and Dorin v. Dorin, 40 L .. T. Ch., p. G02, and he had no legiti­ mate children. \Vhcn' the g-ift is a iuture gift, as in the case of a power it alwn~·s must bP, and as in this case it is, illegitimate children rannot take at all if hy any pos--ibility legitimate children might arise who could take. In the present case Joseph DaYisson I~icl. ards rui!rht haYe m:uritHl an.l brought legitimate children into ex is tenet'. It has been argued on behalf of the Respondents that the W'ords "subject as aforesaid and without prejudice to the limitations hereinbefore mrn[ioned " were in the nature of a saYing· rlause, ancl t11:11lr t hl· SJH ial power a hust, nn<l one "·hic·h .Josrph DaYisson Rirhards was hound to exercise before resorting to the general power, pro>ided the object or objects of the special power were still in rxistence. The Appellants argued that the objects of the special power were IleYet· in exi~tem·c, a.;" c·hiJ,Jreu" must hP tnkt•n to lllenn in law legitimate cl1ildn•n and not illegitimate, and further that Joseph D avisson Richards, the donee of the special power, was uncler no oblig-ation to exet·•·i"e it. as a powl'r o£ appointment is a mere authority to be exercised or not as the donee pleases . The last question which arigps for consideration is, wheth<'r there was a general powe1· of appointment Yested in Joseph DaYist~on Richards and whether it was executed. As I understanJ it, it was admitted by hoth counsel, and I thi11k it is pe•·fectly c-lear, that ~edion 27 of the ·wills Act does in fact exec·ute the general power of appointment. The R espondent has nrguc<l that the general power was improperly exercised for the following reasons:- (1) Because Elizabeth Daviel'l' property ''as thereby gi>en to illep-itin'ate children of Hichards not in existence at her death in 18!H. (2) The spec-· al power to appoint his children meant the illegitimate cl1ildren in existenc·e at her death, who were well known to her, and thi" gpccial power was in the nature of a trust. (3) The general power <'01.ud only he ext'rcised subject to the special powt'r :mil its l'mitations, i.e., to the children of Richards living- at 'J'estator·'s death . '£he ;;pecial power could only gi•e way to the gE>neral power wheu the objects o£ the special powPr cea;;p to t•xist. 'l'o sum up the conclusions I h·t>e arrived at which may be summa1·isecl as follows:- (1) The spec·ial po·wer was not exercised by Josep h D::t>isson Richards. D ANVERS RICHARDS CID OTHERS v. o1: KoLA RICHARDS A~D OTHERS. PURCEJ,J,, C.J. D~VERS R.c.HARDS ANn O'rJIERS ·t.l. DE KoLA RIC!t;\RDS AS'U OTHERS. l'URt'F.I L, C.J. 5'2 (2) 'l'he word " children " cannot lw con:;trued to in­ clude illegitimate children. (~) 'fhere was no obli~ation <m .T oseph Da.-isson Ricbnrds to exercise the special power of appointment. (4} 'l'he general powE'r of nppointment Ye:-;led in Joseph Davisson Hichanls wn.s exercised by him and was executed under the proYisions of section 27 of the ·wills .Act. 'J'he resull!l o£ these nndin~s will be that the judgment of the Court will be set nsidc and jud:.rment entered for the Appellants with costs. ·with regard to the quest ion of costs the ,J ud~c in the Court hclo\1· oniNed the costs to he pnid hy the Defendants (..lppE'llants) personall~·. . . .\.s I unders1 :md it, executor:; :md Tnudces cn.n only be ordered to pay costs personall~· when the~· have been guilty of misconduct. There is ample authority for this proposition . Here, so far as I am aware, th<>re wns no misconduct, all that the Defendants did wns to put thf'i t' views properl~· before the Court, as they were entitled and indcNl bound to do. ha>in~ been made Defendants. \\ere any justification neces~ary for their conduct, the result of these proceE>dings ·wm1ld furni"h it. In my judg ­ ment the .A.pp<>llants should htwe their c·osts both in this Court ann in the Court below. I cannot take lea>e of this case wHh­ out expressing the obligation this Court is under to both the learned Counsel who ha-ve argued in this appeal. Both of them haw been of the greatest assi;;tance to us. I do not ,,·ish to draw invidious distinctions, but during ~Ir. '\Yright's ar~·uments, not only in this case but in the other Gambia appeal wbiC'h came before us, I could not help recalling what had been written of a ~rent advocate who became Lord Chancellor o£ England shortly aft er the 1?iddle of last century . The passage I refer to is as follows:- " But where l1e stood supreme wac; in the power of " concise and lucid exposition of mnrshnlling his £nets and 1 1 his comments and his law, in an order which was so logica l " that it seemed not merely appropriate but inevitab le. " Under his hand doubt -vani!'lhed, the obscure became plain, " the most tan~led and intricate propo.sitions were resolved " into perfect simplicity." SA W R EY-COOKSON, J. I a~ree, and only desire to add that this appears to me to be one o£ those unfortunate casE'" in which it could be wished that authority were not ~o compellin~ a~ to require that no effect can be gi-ven to what might well have been at one time the intentio n 53 of a testat or. 'l'hc case for t;lc Appellants has been extremely nbly argued by Mr. Wright, and he has satisfied me beyond any doubt that this being essentially au English Will, indeed, a!l perfectly drawn a Will as could ''"ell be met, it falls to be construed strictly in accordance with English authMily, and the authority he relies upon driYes me to the following conclu­ sion: -The term " children " must be tn ken in this instance where the gi£t under the ·will i!l not immediate but future, to mean children legally, i.e., legitimate children, as much as if the word legitimate had been written before it. As long as there is a possibility of legitimate children being born, "children " shall kwe no other meaning hut legitimate children. The Courts in England haYe on sevet·al occasions found th('mselves faced by extremely hard cases as a result of the abundant authority to the above t>ffP<·t, but haYe neYertheless invariably felt bound to give effect to it. Moreover, reference to the Codicil to tht> Testatrix'!'; ·will points to the possible contempla­ tion that there might be illegitimate c.hildren to benefit under her Will as she there use~ tl1e term " natural " children and take!'; the precaution to name them. I ngree, too, that the only power of appointment which was exercised b~ .Joseph DaYisson Richards was the general power, and that even if he had exercised the limited or Rpecial power. the objects of that power not being legitimate children. nnt~t he taken to haYe failed. The appeal must therE-fore be allowed. and I can find no renson for dt>prh·ing the Appellants of any costs. hut think they should hnYe thrm both here nnd below. 1fcDONNELL, Acting J. I concur. DA.-..VERS RICUARDS A..>\D OTHERS r. liE KIII.A HJCIL\RDS A.)IJI OTIIEil:l. :"i\WHPY­ CU OK~H"\, J.