July 7. PENNYCUICK V.-C. read the following judgment. It will be remembered that the testatrix directed that her residuary estate shall be held on trust as to one-tenth for certain charitable purposes, as to one-tenth for certain persons or institutions as the trustees shall decide, and then:
"As to the remainder of my estate to be divided equally between the descendants on the one hand of my late mother and the descendants on the other hand of my late father my trustees in this respect in their entire and sole discretion being empowered to make such enquiries and investigations as they think fit (but no more) and to divide the respective halves of the remainder of my estate between such of the said respective descendants living at my death as they shall think fit having regard particularly to any who may appear to be in need of help."
One then turns to the family tree which has been exhibited to the affidavit upon the summons and one finds that at the date of her death the state of the testatrix's family was as follows. Her parents were Robert Youngman Thurlow and Clara Thurlow: they were first cousins, but nothing turns on that fact. There were five children of Robert Youngman and Clara, two daughters who predeceased the testatrix and two sons who likewise predeceased the testatrix. None of those four brothers and sisters had any issue. The testatrix was never married. Turning to the collaterals, the testatrix's mother had a sister, Mary Ann Jackson, who had a daughter Mrs. Helen Bennett, who is still living. Mrs. Bennett in turn has three children and two of them have children. The testatrix's mother also had a brother William who had a daughter Jane Maria Howell who predeceased the testatrix. She had five children who are still living. The brother William also had a daughter Dorothy, who is still living, and she has a daughter Daphne Elizabeth Ann Clegg.
Upon the present summons Mrs. Clegg has been joined to represent those collateral relations of the testatrix who are not statutory next-of-kin, she not being one of the next-of-kin because her mother is still living. Mrs. Bennett was originally joined to represent the statutory next-of-kin. She, however, has taken no part in the proceedings and one of the sons of Mrs. Howell, namely Ronald, has been joined to represent the statutory next-of-kin.
It is clear that when the testatrix refers first to the descendants of her mother and secondly to the descendants of her father she cannot possibly have intended the word "descendants" to mean issue. There are two reasons for this. In the first place, her father and mother were married only to one another and, therefore, they being both dead at the date of her will, it was impossible that any person could be a descendant of one but not of the other, and yet the testatrix contemplated two different classes of descendants taking equal shares. In the second place, all of the descendants of the testatrix's parents except herself having died, there could never in fact be any descendant of either of them. That being the position, counsel for Mrs. Clegg has contended that in that clause in the will the word "descendants" should be construed as meaning collateral relations, being descendants of the testatrix's grandparents; that limits it to the three stirpes to which I have referred.
Apart from authority it seems to me that the word "descendants" is totally incapable of referring to collateral relations. The word "descendants" in its ordinary meaning in the English language means "issue" and nothing else. Counsel, however, has cited two cases decided in the last century, the latter of which, he says, supports his contention.
The earlier case is Craik v. Lamb (1844) 1 Coll. 489 where the headnote reads:
"I give and bequeath all the remainder of my real and personal estate ... unto and equally between and amongst all. my relations who may claim and prove their relationship to me by lineal descent. ..."
He had no wife or issue at the time of making his will, nor afterwards. He died, leaving several first cousins, his next-of-kin. It was held that the first cousins were entitled to the residuary estate, both real and personal. The reason given is that the testator could not have intended as beneficiaries those who were lineally descended from himself and, that being so, the particular words used by him, i.e., "relationship to him by lineal descent," could clearly be construed as denoting lineal descent from a common progenitor. That case, admittedly, is of very little assistance.
The case on which counsel relied is Best v. Stonehewer (1864) 34 Beav. 66 and in the Court of Appeal (1865) 2 De G.J. & Sm. 537. The headnote in the former report reads:
"A testator directed an estate to be sold on the decease of his sister and three others, and the produce paid to such persons as should then be nearest in blood to him as descendants from his great-grandfather, J. S.' The testator and his sister, both advanced in years, were the only lineal descendants of [Mr. Joshua Stonehewer]. Held, that the collateral descendants of J. S. were entitled."
The headnote omits the critical words "and whose kindred with me originates with him."
After reading the words, Sir John Romilly M.R. said, 34 Beav. 66, 69:
"Mr. Joshua Stonehewer had no lineal descendants except the testator and his sister, and, at the time when the testator made his will, it was highly improbable that either of them would leave any issue surviving either of them. By the words of the will, the property of the testator was to go to the descendants of Joshua Stonehewer alive at the decease of the survivor of four persons, of whom his sister was one. The words therefore could not mean lineal descendants, because on the death of the sister after the testator, and without leaving any issue, there could be no lineal descendants. The court has, therefore, to consider whether it is possible to put a fair intelligible meaning on the words, for if it is not, then there must be an intestacy and the plaintiff would be entitled. 1 think it is not only possible to put an intelligible meaning on these words, but that, in truth, the meaning of the testator is very obvious. It is usual, not merely in legal language, but even in popular parlance, to speak of two classes of descendants, the lineal descendants and the collateral descendants. In fact, if this were not so, the word lineal would be wholly superfluous as applied to descendants, but it is usual to call the transfer of an estate occasioned by the death of the holder of it as 'the descent of the estate,' and in like manner it is usual to call the person on whom it descends the descendant The definition of 'descendant' in Lord Coke, in Sir William Blackstone, and indeed in all the law books. bear out this view. This is also confirmed by the definition to be found in the best dictionaries. Johnson gives us one of the meanings of the word 'descent,' - the transmission of any thing by succession and inheritance. In truth, unless the issue of the brother of a man who died intestate be called 'the descendants' of that intestate, there is no word which would express the class; and unless we adopt this view, the words 'collateral descendants', so frequently to be found in law books, are mere jargon without any meaning.
"Suppose the testator here had used these words 'collateral descendants,' could anyone have doubted his meaning. He says 'descendants,' he had no lineal descendants, then he meant mere collateral descendants. It is impossible for this court to limit the words of a testator by a hypercritical and somewhat pedantic refinement to a narrow and unusual meaning, merely because it is not perhaps quite exact as familiarly used, and to do all this for the purpose of creating an intestacy. The words on which I hesitated on Saturday, viz. 'whose kindred with me originates from him' do not, on reflection, offer, to my mind, any difficulty. He, Joshua Stonehewer, is the link or point of union up to which both arrived, the testator directly and lineally, and the defendants directly up to Thomas the brother, and thence collaterally to Joshua."
If that decision stood alone it would certainly provide powerful support for the argument advanced by counsel, but I must say that, for myself, I would find it impossible to say that either in the ordinary use of the English language or in legal language, the word "descendants" was apt to include collateral relations. Apparently when this judgment was given it was apt, not merely in legal language but even in popular parlance, so to describe a collateral relation, but that was a century ago and I do not think it is so today. Words sometimes change their nuance over the years both in popular and in legal language.
However, I do not need to pursue that point, because the case went to the Court of Appeal, 2 De G.J. & Sm. 537 where the decision of Sir John Romilly M.R. was upheld because the two Lords Justices were equally divided. Turner L.J., who supported the decision, did so on entirely different grounds from those relied upon by Sir John Romilly M.R. and said, at p. 541:
"The will is certainly difficult of construction, but upon the whole my opinion upon it agrees in substance with that of the Master of the Rolls. The will, as I read it, gives the estates, or rather the proceeds of them, to the persons or person of a specified class or classes who at the specified time shall be nearest in blood to the testator; the words 'as descendants from my great-grandfather Joshua Stonehewer, and whose kindred with me originates from him,' describing the class or classes from which the devisees or legatees are to be taken, and the words 'nearest in blood to me' describing what members of the class or classes are to be taken. Looking at the case in this point of view, the true question seems to me to be, whether the words descriptive of the class or classes from which the devisees or legatees are to be taken are to be construed as referring to one set of persons only, the descendants from the great-grandfather, or to two sets of persons, those descendants and also the persons whose kindred with the testator originated from the great-grandfather. ... It was argued, for the appellant, that these latter words do not admit of being construed otherwise than as applying to descendants of the great-grandfather - that they are, in fact, no more than an emphatic declaration by the testator that those descendants (and those descendants only) were the persons who were intended to be the objects of the testator's bounty; but I cannot assent to that argument. I think these words were intended to apply to persons whose kindred with the testator resulted from his (the testator's) descent from the great-grandfather."
Then he deals with the word "originate," and concludes, at p. 543;
"... according to the true construction of the will. the plaintiff is a trustee of the estates in question, or of the proceeds of the sale thereof, for such persons or person as at the time of the decease of the testator's wife were or was nearest in blood to the testator of a class composed of the descendants of the testator's great-grandfather Joshua Stonehewer, and of the persons whose kindred with the testator originated from their being related to his said great-grandfather,"
So Turner L.J. there is not saying, as Sir John Romilly M.R. was saying, that the word "descendants" includes collateral relations; what he is saying is that on the true construction of the will two separate classes of objects are denoted, namely, a class consisting of descendants from the great-grandfather, and also another class consisting of those whose kindred with the testator originated from the great-grandfather. Upon that construction the case is of no assistance to the argument on behalf of Mrs. Clegg. Knight Bruce L.J. disagreed with both constructions.
No other authority has been cited which would support the argument put forward on behalf of Mrs. Clegg, which I am free to reject, and which I do reject.
I would like only to mention one further matter. As I have said, it is clear beyond argument that the testatrix when she used the word "descendants" did not intend that word to mean "issue." In other words, it is perfectly clear that something has gone wrong with the expression of her intention in this provision. I have been somewhat exercised as to whether this might be a case in which the court would be justified in striking out the word "descendants" and substituting some other word, the obvious other word being "relations." The principle on which the court acts in this context is set out in In re Whitrick [1957] 1 W.L.R. 884 in which the Court of Appeal, at p. 887, approved a passage in Jarman on Wills, 7th ed. (1930), vol. I, p. 556 in these terms:
"Where it is clear on the face of a will that the testator has not accurately or completely expressed his meaning by the words he has used, and it is also clear what are the words which he has omitted, those words may be supplied in order to effectuate the intention, as collected from the context."
Undoubtedly the first of those conditions is satisfied here. It might, I think, have been arguable that the second is also satisfied. Counsel for Mrs. Clegg has, however, disclaimed any contention on those lines. He found it impossible to contend that it is clear what word the testatrix did intend to use where in fact she used the word "descendants." There is no doubt difficulty in substituting the word "relations" and I must leave it there.
I propose, accordingly, to answer question 2 in the negative; that is to say, the remainder of the testatrix's estate is undisposed of and devolves as upon the intestacy of the testatrix.
Order accordingly.
Crown Copyright acknowledged
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Date: 07:33 14/10/2002
