Editorial Committee of the Cambridge Law Journal

Powers in the Nature of a Trust. Powers Collateral. Certainty of ObjectsAuthor(s): John HopkinsSource: The Cambridge Law Journal, Vol. 27, No. 1 (Apr., 1969), pp. 30-33Published by: Cambridge University Press on behalf of Editorial Committee of the Cambridge LawJournalStable URL: http://www.jstor.org/stable/4505276 .

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The Cambridge Law lournal The Cambridge Law lournal [1969] [1969] 30 30

claims be permitted if the valuables are found ten or twenty years after sale of the land? The Limitation Act 1939 could not apply unless there were an adverse claim and that surely cannot happen until the valuables are found. Of course, in such cases the earlier possessor is not the true osvner and he in turn may have to yield up the valuables to an even earlier possessor. Per}zaps the argument put fonvard in MoBat's case that a conveyance of land impliedly includes lost property could be justified, except where the vendor himself mislaid the property there, not only on the grounds of the potential impasse suggested, but as a means of preventing such unseemly scrambles between successive occupiers of the land concerned. But, if sos should this apply to leases of land? Should the lessees in Elwes v. Brigg Gas Co. (1886) 33 Ch.D. 563 have been entitled to retain the 2,000-year-old boat which they unearthed? Probably not, in view of the lessor's continuing reversion itI the land. The problem is not an easy one.

J. W. A. THORNELY.

POWERS IN THE NATURE OF A TRUsr-POWERS COLLATERAL- CERTAINTY OF OBJECTS

UNDER ffie name of Whishaw v. Stephens [1968] 3 W.L.R. 1127 «e House of Lords has unanimously upheld the Court of Appeal in Re Gzllbenkians Settlement [1968] Ch. 126 (noted at [1968] CL.J. 211).

The point which the House of Lords was asked to consider was whether powers to appoint under settlements to " alI or any . . . of the follosving persons, namely, [G.] and any wife and his children or remoter issue for the time being in existence . . . 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 [G.] may from time to time be employed or residing,s' followed by a gift over in default of appointment, were valid, or void for uncertainty.

Lords UpJohn (with svhom Lords Guest and Hodson concurred) and Reid were rightly critical of the drafting of this clause. As Lord Reid stated at p. 1130, " this clause does not make sense as it stands. One of the permutations which the grammar requires is any person ' by whom [G.] is residing.' . . . It is reasonably clear that this clause is the result of carelessly telescoping two separate clauses-(1) any person by whom [G.] 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." His Lordship was of opinion that " the ctient must not be penalised for his lawyer's slovenly drafting . . . [on this botched clause " and that

claims be permitted if the valuables are found ten or twenty years after sale of the land? The Limitation Act 1939 could not apply unless there were an adverse claim and that surely cannot happen until the valuables are found. Of course, in such cases the earlier possessor is not the true osvner and he in turn may have to yield up the valuables to an even earlier possessor. Per}zaps the argument put fonvard in MoBat's case that a conveyance of land impliedly includes lost property could be justified, except where the vendor himself mislaid the property there, not only on the grounds of the potential impasse suggested, but as a means of preventing such unseemly scrambles between successive occupiers of the land concerned. But, if sos should this apply to leases of land? Should the lessees in Elwes v. Brigg Gas Co. (1886) 33 Ch.D. 563 have been entitled to retain the 2,000-year-old boat which they unearthed? Probably not, in view of the lessor's continuing reversion itI the land. The problem is not an easy one.

J. W. A. THORNELY.

POWERS IN THE NATURE OF A TRUsr-POWERS COLLATERAL- CERTAINTY OF OBJECTS

UNDER ffie name of Whishaw v. Stephens [1968] 3 W.L.R. 1127 «e House of Lords has unanimously upheld the Court of Appeal in Re Gzllbenkians Settlement [1968] Ch. 126 (noted at [1968] CL.J. 211).

The point which the House of Lords was asked to consider was whether powers to appoint under settlements to " alI or any . . . of the follosving persons, namely, [G.] and any wife and his children or remoter issue for the time being in existence . . . 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 [G.] may from time to time be employed or residing,s' followed by a gift over in default of appointment, were valid, or void for uncertainty.

Lords UpJohn (with svhom Lords Guest and Hodson concurred) and Reid were rightly critical of the drafting of this clause. As Lord Reid stated at p. 1130, " this clause does not make sense as it stands. One of the permutations which the grammar requires is any person ' by whom [G.] is residing.' . . . It is reasonably clear that this clause is the result of carelessly telescoping two separate clauses-(1) any person by whom [G.] 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." His Lordship was of opinion that " the ctient must not be penalised for his lawyer's slovenly drafting . . . [on this botched clause " and that

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C.L.J. Case and Comment 3l

since " under modern conditions it may be necessaw to relax older and stricter standards " of construction, a benevolent construction should be placed upon the clause as a whole. Lord Donovan, at p. 1140, added force to this criticism when he observed that he had " 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."

Upon the question of certainty of objects, Lords Reid and Upjohn were of opinion that the instrument, which contained a gift over in default of appointment, was not void for uncertainty. Thus, as Lord Reid stated, " if one can reasonably envisage cases mrhere the court could not determine the question [whether a particular person is or is not within the class of objects of the power], the power must be void for uncertainty "; in the present case, however, it was not possible reasonably to envisage such person. It might be difficult to determine whether a particular person did or did not so fall, bllt mere difficulty should not be regarded as matenal.

This was enough to decide the case, but certain other remarks of their Lordships call for brief comment. In ffie first placeJ Lord Upjohn in a lucid judgment, adopted and explained the distinction between so-called " trust powers " (which impose a duty of selection- or exclusion upon a trustee-donee: see [1968] C.L.J. 212) and so-called " powers collateral 9 (which impose no such duty). In so doing, his Lordship rejected the suggestion of Lord Denning M.R. in Re Gulbenkian, supra, at p. 133 that the law relating to " trust powers should be brought into line with the nlle with regard to powers collateral.' In Lord Upjohn's views in the case of a trust power the full range of beneficiaries must be known at the outset; the court cannot order division of the fund amongst the members of a class smaller than that stipulated by the settlor; filrther, the court must be in a position to be able to divide the fund amongst all the members of the class in the event of the donee-trustee failing to do so. In the case of a power collateralb on the other hand, the donee is under no duty to act at all and, if he fails to distribute, "those entitled [In default of appointment] are entitled to the fund" (p. 1138).

Lord Reid, however, though he admitted (possibly with some slight reluctance) that " when a power is given to an individual he is under no duty to exercise it or even to consider whether he should exercise it,'8 continued: '4 where 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 jlldgment to be

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[1969] 32 The Cambridge Law Journal

exercised." Wi respect, this has never seriously been argued. Until

Lord Reid's assertion, it had generally been thought that in such a

case, the donee of the power had been under a dllt bona fide to

consider the merits of each supplicant for the testator's (or settlor's)

bounty: see Re Gestetner Settlement [1953] Ch. 672 at 688, per

Hannan J., and the numerous cases which have clted it with approval.

Lord Reid then proceeded severely to criticise Inland Revenue Com

missioners v. Broadway Cottages Trust [ 1955] Ch. 20, in which

Jenkins L.J. found a trust power void for uncertainty on the ground

that a complete list could not be drawn up of all possible objects.

One wouId readily agree with Lord Reid that " the present state of

the law is far from satisfactory," but it is submitted that a starting

point for its improvement is more satisfactorily found in the judgment

of Buckley J. in Re Leek [1967] Ch. 1061 (see [1968] C.L.J. 212) than

in the judynent of Lord Reid. It is submitted that Lord Reid's

analysis of the relationship between trust powers and powers collateral

is somewhat different from that of Lord Denning in Re Galbenkian

(above) but likely to lead to no less confusion if adopted. Lord

Upjohn dealt with the matter thus (at p. 1139): "with all respect to

the contrary view, I cannot myself see how, consistently wsth principle,

it is possible to apply to the execution of a trust power the princIples

applicable to the permissible exercise by donees (even if trustees) of

mere powers.'9 Secondly, as to the question of certainty of obJects in a power

collateral, the view of the Master of the Rolls (and of Winn L.J.) in

Re Gulbenkian was rejected by Lord Upjohn. It will be recalled

that Lord Denning had stated ([1968] C:h. 134) that " if ffiere is some

particular person at hand, of whom you can say that he is fairly and

squarely within the class intended to be benefited, then the clause is

good." Lord Upjohn, however, stated that " the trustees [-donees]

must be able to say with certainty who is withIn and who is without

the power," though his Lordship, as has been noted, agreed that it

was not necessary to draw up a "list of objects" and, further,

approved the Court of Appeal's overruling of Re Gresham 11956]

1 W.L.R. 573 upon a point of construction. What one might describe

as the " narrow interpretation " of Re Gestetner (see [19681 C.L.J.

214) has thus been approved by the House of Lords, though it should

be noted that Lord Donovan stated (at p. 1141) that thollgh he was

"inclined to share [Lord Upjohn's] view . . . lhe] wouId reserve

[his] opinion." Lord Reid expressed no opinion upon the matter.

The recent caution of judges of lower courts on this question (see

Re Baden's Trust Deeds [196f] 1 Ut.L.R. 1457, Goff J.; Re Woorton

[1968] 1 W.L.R. 681, Pennycuick J.; and now Re Denley's Trust Deed

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C.L.J. C.L.J. Case and Comment Case and Comment 33

[1968] 3 W.L.R. 457, Goff J.) would appear to be amply justified.

One cannot but sympathise on this point-with the view of Lord

Denning, but it is submitted that the opinion of Lord Upjohn is to

be preferred in the interests of the future certainty of the law.

Whishaw v. Stephens has something for everyone: Lord Reid

proceeds along unconventional lines; Lord Donovan leaves open a

liberal loophole devlsed by Lord Denning; Lord Upjohn provides a

reasonable and reasoned analysis of principle and of the principal

authorities. Leave to appeal to the House of Lords has been given

in Re Leek [1968] 2 W.L.R. 1385 (C.A.); this branch of the law will

thus be given a second ainng in the House and one hopes that Lord

Upjohn's judgment in Whishaw v. Stephens will be given the attention

it deserves in order to expel such uncertainties as are perpetuated by

other members of the House of Lords in that case. JOHN HoPKrss.

WITNESSING A WILL-WILLS ACI: 1968

BY virtue of section 9 of the Wills Act 1837 a will mllst ordinarily

be in writing and be signed "at ffie foot or end thereof " by the

testator, or by some other person in his presence and by his direction.

That signature moreover must be either made or acknowledged

by the testator in the presence of " two or more " witnesses, present

at the same time; and such witnesses shall " attest and subscribe the

will" in the presence of the testator. (Nowadays, however, in conse-

quence of the Wills (SoIdiers and Sailors) Act 1918 and the Wills Act

1963, there are certain circumstances in which section 9's formal

requirements do not invariably apply.) Section 15 of the Act of 1837 provides in effect that neither an

attesting witness nor the husband or wife of such a witness (nor any

person claiming under either of them) can take any benefit under the

will. The obvious purpose of this rule was to ensure that if, after

the testator dies, the attesting witnesses are questioned as to whether,

e.g., he really did sign the alleged will in their presence (or acknow-

ledge to them that the signature upon It was his own or was made by

someone e}se at his request) they will have nothing to gain by falsely

answering that section 9's formalities were duly observed.

However, since the Act of 1837 does not require that a will

should have more than two attesting witnesses, it is arguable that

section l5's penalty upon every attesting w}tness who or whose

spollse is given some benefit by the will extended further than was

necessary. If, for instance, three witnesses have attested the will,

and only one of them (or his spollse) is given a benefit by the will,

there would seem to be no good reason for enacting that his or his C.LJ. 2

33

[1968] 3 W.L.R. 457, Goff J.) would appear to be amply justified.

One cannot but sympathise on this point-with the view of Lord

Denning, but it is submitted that the opinion of Lord Upjohn is to

be preferred in the interests of the future certainty of the law.

Whishaw v. Stephens has something for everyone: Lord Reid

proceeds along unconventional lines; Lord Donovan leaves open a

liberal loophole devlsed by Lord Denning; Lord Upjohn provides a

reasonable and reasoned analysis of principle and of the principal

authorities. Leave to appeal to the House of Lords has been given

in Re Leek [1968] 2 W.L.R. 1385 (C.A.); this branch of the law will

thus be given a second ainng in the House and one hopes that Lord

Upjohn's judgment in Whishaw v. Stephens will be given the attention

it deserves in order to expel such uncertainties as are perpetuated by

other members of the House of Lords in that case. JOHN HoPKrss.

WITNESSING A WILL-WILLS ACI: 1968

BY virtue of section 9 of the Wills Act 1837 a will mllst ordinarily

be in writing and be signed "at ffie foot or end thereof " by the

testator, or by some other person in his presence and by his direction.

That signature moreover must be either made or acknowledged

by the testator in the presence of " two or more " witnesses, present

at the same time; and such witnesses shall " attest and subscribe the

will" in the presence of the testator. (Nowadays, however, in conse-

quence of the Wills (SoIdiers and Sailors) Act 1918 and the Wills Act

1963, there are certain circumstances in which section 9's formal

requirements do not invariably apply.) Section 15 of the Act of 1837 provides in effect that neither an

attesting witness nor the husband or wife of such a witness (nor any

person claiming under either of them) can take any benefit under the

will. The obvious purpose of this rule was to ensure that if, after

the testator dies, the attesting witnesses are questioned as to whether,

e.g., he really did sign the alleged will in their presence (or acknow-

ledge to them that the signature upon It was his own or was made by

someone e}se at his request) they will have nothing to gain by falsely

answering that section 9's formalities were duly observed.

However, since the Act of 1837 does not require that a will

should have more than two attesting witnesses, it is arguable that

section l5's penalty upon every attesting w}tness who or whose

spollse is given some benefit by the will extended further than was

necessary. If, for instance, three witnesses have attested the will,

and only one of them (or his spollse) is given a benefit by the will,

there would seem to be no good reason for enacting that his or his C.LJ. 2

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