Case No. EWHC-63-(Ch)

This is the trial of a preliminary issue ordered by Master Moncaster on 8 June 2010. It concerns the construction and effect, in the events which have happened, of a name and arms clause contained in clause 8 of the Will dated 19 February 1930 (“the Will”) of Philip John Canning Howard (“the Testator”) who died on 22 April 1934. The claimant is the son of the defendant, and they are respectively the great-great grandson and the great-grandson of the Testator.

This is a very sad case in that the claimant and the defendant, son and father, have fallen out in a very bitter dispute. The claimant seeks to recover what he sees as his rightful inheritance, alleging that the defendant incurred a forfeiture under the name and arms clause but that it was hidden from him by the defendant, past trustees and past lawyers. He says he only discovered the true position relatively recently when, with great difficulty, he managed to obtain access to trust files. He says if it had not been concealed from him, there would have been no need for him to enter into an Individual Voluntary Arrangement in 1993 and he would not have been adjudged bankrupt.

The defendant, on the other hand, denies that there was any forfeiture. He says that after a disentail the claimant obtained a large part of the Corby Estate which he then mismanaged with the result that the estate, including the house Corby Castle, in the family since the 17^th century, has had to be sold. He alleges that the claimant will take any steps, having squandered one half of the estate, to obtain the other half, notwithstanding that some 50 years have passed since the alleged forfeiture. He also contends that the claimant is now intent on bankrupting the defendant who cannot meet his demands.

The claimant was represented before me by solicitors and both leading and junior Counsel. This case involves complicated issues of construction and has necessitated citation of much authority on technical questions of law. Several opinions have been expressed over the years by solicitors and leading counsel on the issue I have to decide. The reasoning is different each time. Mr Pymont QC and Mr Aldridge for the claimant have taken yet another stance. The defendant’s case has also shifted in certain respects. I have therefore been very troubled by the fact that the defendant wishes to, and does, appear in person. Without disrespect to his conduct of his case, it is one unsuitable for any lay person to undertake and the defendant was demonstrably unqualified to get to grips with the detail of the issues. I have therefore done my best (with proper assistance from Mr Pymont) to redress the inequality of arms thus presented.

I am not at this stage concerned with such matters as the effect of the claimant having entered into disentailing arrangements, the effect of the lapse of time since crucial events of the early 1960s or whether any rights the claimant succeeded to by virtue of the operation of the name and arms clause have been assigned to the defendant. It occurs to me that a logically prior question of the claimant’s standing to bring the claim arises because of his bankruptcy. However I have been told that this was considered when the preliminary issue was ordered and that I am not concerned with it now. I have also not been asked to consider whether relief from forfeiture may be available in principle and on the facts. The sole question for the court on the preliminary issue is whether, on the true construction of the Will, the defendant forfeited his interest on 5^th January 1962 under the provisions of clause 8 of the Will, the name and arms clause.

The Testator had issue one daughter only, the defendant’s grandmother, who at the time of the Will was married to Sir Henry Joseph Lawson Bt, and after his death married a Colonel Levin who became one of the trustees of the settlement. Her sons by her first marriage and their children, including the defendant, were thus born with the name of Lawson. The Testator was concerned to ensure the continuance of the association of his family name and arms with his landed estate. Hence the inclusion of clause 8 in the Will which made the enjoyment of that estate (or parts of it) by each successive remainderman conditional upon the adoption of the surname and arms of Howard.

The Testator’s estate comprised three estates. The Foxcote and Middleton Estates (in Warwickshire and Shropshire respectively) were settled on his granddaughters. I am directly concerned with the lands identified in clause 3 of the Will as the Corby Estate in the then county of Cumberland, which were settled on the Testator’s grandson (the defendant’s father) William Howard Lawson (“William”). One third of the residuary estate was devised on trusts corresponding to those affecting the Corby Estate.

Clause 8 of the Will has already been the subject of litigation in this Court, and the decision of Wilberforce J was reported as In re Howard’s Will Trusts [1961] Ch 507. The claimant was not born until some three months after the judgment, which was delivered on 29 March 1961. That summons was brought to determine whether the name and arms clause was valid or not; it was common ground that William had failed to comply with the requirements of the clause in the time prescribed for him to do so. Wilberforce J upheld the validity of the clause, save in certain respects immaterial to this present application, so that William’s interest was forfeit on 5 January 1961 and the defendant became entitled as tenant for life.

The defendant was not at that date entitled to the Lawson Family Estates or the Lawson Baronetcy, but he became so entitled on the death of William, the 5^th Baronet, in 1990. He then took the name Howard-Lawson and nothing arises out of that change of name for present purposes.

The Will contains a clause which was obviously intended to prevent the Testator’s descendants from disentailing his estates for as long a period as available. It had the effect of cutting down the interests of William and the defendant to life interests so that the claimant became the first tenant in tail in that line. Thus in the events which happened, the Corby Estate was devised by the Will (after interests in favour of the Testator’s wife and daughter during their lives) to William for life, with remainder to the defendant for life, with remainder to the claimant in tail male with further remainders over.

Clause 8 seeks to cover a very wide range of circumstances and is accordingly both complex and tortuous in expression. The first part of Clause 8 provides as follows:

Clause 8 then contains the forfeiture provision:

I have quoted the whole clause partly to indicate how tortuous it is and partly because of the defendant’s submission that the provisions about use of the surname of Howard “in all deeds and writings which he or she shall sign and upon all occasions” did not apply to him. He contended that this provision only applied to a person who already used the name of Howard when he or she became entitled.

A somewhat corresponding argument was raised on behalf of the claimant in an opinion provided for him by leading counsel in December 1998 in which the view was expressed that the provision about a royal licence only applied to someone entitled to the Lawson family estates or to the Lawson Baronetcy at the time his interest fell into possession. Mr Pymont, rightly in my view, does not pursue that part of his predecessor’s argument.

In my judgment those are both untenable readings of the clause. As to the defendant’s interpretation, the two words “shall” must both be followed by “take use and bear…the surname of Howard” and must both also be followed by “and shall also use the arms of Howard”. It is artificial to read the words “in all deeds and writings which he or she shall sign and upon all occasions” as applicable only to “every person becoming so entitled who already uses the surname of Howard”. “In all deeds and writings…” must in my judgment follow on from the words “take use and bear” applicable both to those persons who did not, and to those who did, use and bear the surname and arms of Howard at the time of becoming entitled.

As to the claimant’s former contention, it is plain to my mind that as a matter of grammar and sense the provision about a royal licence relates to every person, that is to say including the defendant, who has become entitled in possession and who has not already borne and used the Howard surname and arms.

Thus the first part of the clause, as it applies to the defendant, reads as follows:

Mr Pymont’s submission is that this provision imposes two separate and cumulative obligations, with the result that the defendant was obliged to adopt the name of Howard, and thereafter use it exclusively, during the first year after entitlement, irrespective of the separate obligation imposed by the second part of the clause to obtain a royal licence to bear arms.

If the defendant did change his surname to Howard within the year the claimant’s case would be cut from under his feet. Accordingly this is an issue of fact which has to be decided.

This was one of the areas in which I felt the defendant’s absence of legal representation very keenly. In particular I would have liked to have heard submissions as to the effect of the lapse of time on the completeness of the picture and as to the undoubted fact that the family solicitors, Blount Petre, who drafted all the legal documents and whose correspondence is the principal surviving documentation, plainly believed that the defendant should not (and under clause 8 did not have to) use the name of Howard until after the royal licence had been obtained.

It is common ground that at some time after the end of July 1961 (when the family was considering an appeal against Wilberforce J’s decision) but before the beginning of October 1961, the defendant applied to the College of Arms with a view to securing permission for his change of name and arms. The procedure was for the College to forward the application to the Home Office (which happened at the beginning of October), to establish the family pedigree and then to prepare the petition for submission to the Queen.

The chronology, in so far as it can be established after such a space of time from the contemporaneous documentation, is as follows. William forfeited his interest on 5^th January 1961 and the defendant’s year began. The hearing before Wilberforce J was on 21^st March 1961 and he gave judgment on 29^th March 1961. Letters were written by the family solicitors advising on the effect of the judgment and an opinion was obtained from leading counsel. In June and early July the family solicitors wrote to the defendant about changing his name but there was apparently no reply as a chasing letter was sent through William. Incidentally I accept the defendant’s evidence that William took an old-fashioned view about his position as head of the family and the defendant accepted his decisions without question.

An application was made to the College of Arms at some time during the autumn of 1961 (a meeting having taken place with Chester Herald that summer to discuss the procedure) to initiate the process for obtaining a royal licence. An application to the Home Office for permission to lodge the formal petition was made in October 1961 and the Home Office gave permission to proceed in November 1961: see a letter from Blount Petre of 18 December 1961. In order to save costs the defendant had decided to apply jointly with his cousin Denis Waterkeyn (who had an interest in Foxcote Estate) and it appears from the surviving correspondence that Mr Waterkeyn was not responding to letters and was thus holding up the preparation of the required pedigree, apparently causing annoyance to the defendant and embarrassment to Chester Herald in his dealings with the Home Office. In December 1961 Mr Waterkeyn provided the missing information for the pedigree. The defendant’s one year time limit expired on 5^th January 1962. The formal petition was sent to the defendant for his signature on 15^th February 1962 and was sent to the College of Arms which forwarded it to Garter King of Arms for transmission to the Home Office. The royal licence was signed on 26^th April 1962 and issued on 3^rd May 1962. The change of name was published in the London Gazette on 1^st June 1962 and there was formal exemplification on 10^th September 1962.

The defendant gave oral evidence. He continued to maintain that he did use the name of Howard within a year of his interest falling in. The defendant was an entirely honest witness but 50 years have passed since the events in question and his recollection was admittedly and understandably hazy. The only example of use of the name Howard during the year that he can now recall is an engraving on the claimant’s napkin ring for his christening. That does not in my view take the matter any further as at most it shows an intention to call the claimant, rather than the defendant, by the name of Howard. However I am not prepared to find that the defendant did not use the new name during the course of 1961 (or rather, I am prepared to find that on some occasions he did) since he plainly told his solicitors and the trustees some years ago (for example at the time instructions to leading counsel for the trustees were prepared in 1999) that he did, and his memory of events then is likely to be better than it is now.

However the surviving contemporaneous documentary evidence shows that the defendant continued to use the name Lawson on many formal occasions calling for the use of a surname. It is I think fair to say that when faced with the documents he accepted that he did not use the name Howard exclusively at any time during the year after his interest fell in. It was not until well after the expiration of the year that the defendant received a letter from Blount Petre saying that as a result of the royal licence he would thenceforward be addressed as Howard rather than Lawson.

Vesting deeds were deferred until completion of the formalities of the royal licence. It was said by Blount Petre in March 1962 that “it is not worth having the deeds put into his name until this change of name has been completed”. As it was however acknowledged that the defendant was the beneficial owner of the estate, the sale particulars were, to the defendant’s knowledge, headed “By direction of JP Lawson Esq”. A letter from those solicitors to Mr Waterkeyn specifically stated that he was to be at liberty to use the name Howard (and, by implication, only then at liberty to do so) as soon as the notice in the London Gazette had appeared.

Most of the correspondence is from Blount Petre, who also drafted conveyancing documents in which the defendant retained the name of Lawson. However on the evidence before me (and, as I have said, without the benefit of legal argument on the defendant’s behalf) I find that he must be taken to have acquiesced in the continued use of his old name on formal documents. He signed several legal documents in the name of Lawson. I do not place much weight on the use of that name in the documents sent to the College of Arms, since it is possible that an application in a name other than Lawson would not have been acceptable. However, on 1^st October 1963 the defendant executed a deed cancelling a deed of family arrangement of 1960, containing the following recital:

Further on 4^th June 1962 there is a letter from Blount Petre to the defendant containing a draft notice for publication in the local press to the effect that as a result of the royal licence the defendant, his wife and family had discontinued the use of the surname Lawson and would “henceforward” use the surname of Howard only. Although no published notice or letter in reply survives, there is nothing to suggest that the defendant disagreed with this analysis.

Mr Pymont’s principal submission on construction is based on the premise that there is a distinction, recognised in clause 8, between use of a name and use of a coat of arms. As he rightly points out, it is settled law (see e.g. Davies v. Lowndes (1835) 1 Bing (NC) 597) that there is no need to take any formal steps to use a surname, whereas arms can lawfully be assumed only by applying for a royal licence. A clause requiring assumption of arms which will not be exemplified and recorded by the College of Arms is void for impossibility: Re Croxon [1904] Ch 252, Re Berens [1926] Ch 596. Thus, runs the argument, the provision about a royal licence refers to authorisation of a change of arms (and by implication a change of name in that connection only) and does not affect the independent requirement to adopt the surname Howard within the one year period.

It is said that the clause recognises this distinction in the explication of what it means to “take use and bear” the surname of Howard, namely “in all deeds and writings which he or she shall sign and upon all occasions”. As I have said, I do not think that grammatically those words only apply to a person who at the time of his interest falling in already uses the name of Howard. However, as I have also already said, the clause suffers from its endeavours to cover a multitude of different circumstances.

What is meant by using the surname of Howard also has to be expounded for the purpose of the forfeiture clause in relation to discontinuance of use. The forfeiture provision focuses not only on forfeiture in the event of failure to change the name and arms in the first instance but also on discontinuance of use at some future date. Thus clarity is lost at the expense of an endeavour to cover a wide range of circumstances: contrast Re Drax (1906) 75 LJ Ch 317.

An important case in this context is Re Neeld deceased, Carpenter v. Inigo-Jones [1962] Ch 643, a decision of the Court of Appeal which consisted of Lord Evershed MR, Upjohn and Diplock L JJ on appeal from Cross J. One can hardly imagine a more distinguished court whose views on a matter of this kind, even when expressed obiter, must carry very great persuasive weight.

It is immediately apparent that the clause under consideration in Neeld, while similar to clause 8, appeared to allow two successive periods of one year: one in which to assume the name and arms and a further year in which to take steps to obtain lawful authority to do so. However, not only Cross J at first instance, but also Upjohn LJ and Diplock LJ, thought that it was unlikely that the testator intended that the time within which the beneficiary was to take the requisite steps to enable him lawfully to bear the Neeld arms was other than co-extensive with the time within which he was to bear those arms by quartering them with his own. Thus Diplock LJ said (at 684) that there was,

Only Evershed MR took a different view and held that it was impossible to say that the clause had that degree of clarity and precision essential, particularly as regards its divesting operation, to validity. He plainly inclined to the view that there were two separate one year periods. He said (at 669),

Mr Pymont relied in particular on a passage from the judgment of Diplock LJ where he said (at 682),

However one has to bear in mind that the question for the Court of Appeal was whether the clause in question was void for uncertainty. The passage quoted above was delivered in the context of considering whether the concept of discontinuance as prescribed by the clause was inherently uncertain. In that context, Evershed MR at 667 and Upjohn LJ at 678 agreed with what Diplock LJ had said.

Neeld therefore appears to support Mr Pymont’s submission that there was a distinction between surname and arms and the provision about a royal licence referred to authority to bear arms and not use of a name. Persuasive as the decision is, however, it must be read in the context of the particular clause under consideration and of the question before the court.

The precedent used in the present case is similar to and apparently taken from precedent XXXVII in Davidson’s Precedents and Forms in Conveyancing, Vol III.2 p.1141-4, without the amendments which had been made to the precedent in Neeld (as to which see Evershed MR at 664-5).

The notes to the precedent are contained in Vol III.1 at 351-58. The editors say (at 356-7),

There is no logical difficulty in principle in saying that a person must de facto take and use a name on all formal occasions calling for use of a surname (as in

Drax

I do however have a difficulty with the argument in that, on the claimant’s case, the clause would require the defendant to use and bear the Howard arms prior to such authority. A condition to assume arms is not satisfied by mere user: see Berens at 605. Indeed Mr Pymont accepted that it would not be possible lawfully to use and bear arms for which one had not received the permission of a royal licence as it would be contrary to the law of arms to do so: see Halsbury’s Laws (4^th edition) Vol 35 paragraph 1278 and Manchester Corpn v. Manchester Palace of Varieties Limited [1955] P 133 at 149, cited in the footnote to that paragraph.

If Mr Pymont is right and there are two discrete requirements, it is hard to see what could in practical terms be done in anticipation of the licence in relation to arms. All I can think of is (as in Croxon) carving the arms into furniture or having them engraved on a signet ring or writing paper. More recently, the beneficiary could digitally represent them on a mug, tea towel or table mat. However I believe that the Testator would have been astonished at the suggestion that any of these things had to be done, let alone done prior to and in anticipation of authentication. By its terms a licence is expressed to be “void and of none effect” in the absence of exemplification of the armorial bearings, that is to say, the production of a sealed representation of the armorial bearings recorded in the registers at the College of Arms.

Now that arms are no longer borne in battle, there is no formal occasion on which the Howard arms could be borne prior to such exemplification. They could not be published in the Peerage and Baronetage or painted up in the hall of a Livery Company or Inn of Court. Significantly, if the person concerned already had a coat of arms, he would not be able to use the Howard arms instead of or quartered with his own. Until exemplification only his own arms would appear in the reference books and all such other formal places where such arms could be said to be used and borne.

Thus there must be a serious question as to whether the assumption of the surname and of the arms goes together. The defendant could not satisfy the clause by using one and not the other and to my mind the form of clause treats them as an entity. I note that the licence itself ties the grant of the use of the surname to the grant of the right to bear arms so that the wording of the clause can be seen as reflecting the form of the licence. The royal licence is in the following terms,

In my judgment the determinative factor is that the draftsman of clause 8 would not have produced the clause in a vacuum. On the contrary, he must be taken to have had the terms of the licence in mind when setting out the conditions of the clause. It is the royal licence which is the formal method stipulated for change of surname to Howard as well as the right to bear the Howard arms. The exemplification of the arms was expressed to be a condition precedent under the terms of the royal licence to the use of the surname as well as the arms. Once it was determined that a royal licence was the appropriate course, the defendant could not properly have used the Howard surname in anticipation of the licence. That was evidently the view taken by Blount Petre, and in my judgment it was correct.

The clause caters both for the assumption of surname and arms and for their continued use, both by persons who had previously used them and by those who had not. Once lawful authority has been acquired, use of surname and use of arms become two separate requirements both of which must be independently satisfied if a forfeiture by discontinuance is to be avoided.

I accept that the requirement to use the surname is not limited to occasions when the surname is used in conjunction with the arms. However in my judgment both must be assumed together to satisfy the requirements of the clause. The name and arms clause in Neeld was different in that the clause there used demonstrated a clearer distinction between use and authority and each case is to be determined by the court on the particular wording which is before it. However even in Neeld the clause was, as the members of the Court acknowledged (see e.g. Evershed MR at 667), capable of giving rise to real difficulty, as it has done in the present case.

I therefore turn to the forfeiture provision. Mr Pymont submitted that the use of the word ‘or’ (and indeed ‘respectively’) in the second part of the clause bears out his submission that use of the name and arms is a distinct requirement from that of taking steps to authorise such use. He pointed out that forfeiture operates if there is a refusal or neglect “to take use and bear the same respectively [the Howard surname and arms] or to take such steps as aforesaid”. However it does not seem to me that this use of ‘or’ is conclusive. It is not clear whether the ‘or’ is to be construed conjunctively or disjunctively, that is to say whether the person must within the year do both things or merely one or the other.

Mr Pymont says that it must be construed conjunctively as otherwise there would be no point to providing for forfeiture where a person who has not already taken or used and borne the surname and arms of Howard refuses or neglects within the year to take use and bear the name and arms. However that in my judgment ignores the fact that merely acquiring permission by royal licence is insufficient by itself. The permission cannot be obtained and then ignored. It seems to me that unless the provision for applying for the royal licence in some way dilutes or detracts from the obligation to use the surname and arms it can have no operation at all in relation to the bearing of arms. In my view that would be an untenable construction of the forfeiture clause, which ought to be construed against the person relying on it in any event.

I therefore find that it was sufficient to avoid the forfeiture provision for the defendant within the year to “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”.

That is not however the end of the matter. There is the further issue of whether the defendant did what he was required to do to authorise his use and bearing of the name and arms or whether he forfeited his estate by, in accordance with the terms of the forfeiture provision, refusing or neglecting within the year to take the steps required of him. The “steps as aforesaid” were to:

The first question under this head is whether the defendant’s participation in a deed of family arrangement on 20^th December 1960, by which he agreed to proceed on the basis that the name and arms clause was invalid, constituted a refusal to take the name and arms. That was however before the deadline for William’s change of name and arms (5^th January 1961) and before the decision of Wilberforce J (29^th March 1961) that the clause was valid. The fact that the defendant entered into the deed did not constitute a refusal to take the name and arms within the year. After the decision the defendant proceeded on the basis that the clause was valid and signified his intention during his year to comply with its requirements.

Mr Pymont’s principal submission under this head is that the defendant did not comply with the requirement to “apply for and endeavour to obtain” a royal licence within the year. He said that the plain object of the provision was to cater for delays outside the control of the beneficiary. It was not intended to permit the beneficiary to apply on the last day of the year and then to drag his heels. He went so far as to submit that the beneficiary could only rely on the provision in cases where it was impossible for him to obtain the royal licence within the one year period. On this argument it follows that the beneficiary is obliged to apply on the first day of the one year period or he takes the risk that he will not obtain the licence during the year. In this context I was referred to the decisions in Re Quintin Dick [1926] Ch 992, Re Hughes [1943] Ch 296, Doe d. Duke of Norfolk v. Hawke (1802) 2 East 481 and Doe d. Luscombe v. Yates (1822) 5 B & Ald 544, but I do not find any of them particularly helpful in construing the clause in the present case.

Clause 8 provides for forfeiture in the event that the beneficiary should refuse or neglect within the year to apply and endeavour to obtain the licence. It does not require the beneficiary to endeavour to obtain the licence within the year. In my judgment all that the clause requires is that the beneficiary should apply within the year and thereafter genuinely pursue the application.

Doubtless if the application were, without being positively abandoned, left in abeyance for a considerable period, it could be cogently argued that the beneficiary had neglected to endeavour to obtain the licence. But that is not the present case. The defendant applied within the year as so specified, used reasonable endeavours to obtain the licence and did in fact obtain it not long after the end of his year.

Accordingly in my judgment there was no forfeiture under the provisions of clause 8 of the Will.