Analysis
Philip John Canning Howard (testator), who died on 22 April 1934, was entitled to landed estates but his only child was a daughter who married and had issue with Sir Henry Joseph Lawson Bt. The testator was concerned to ensure the continuance of the association of his family name and arms with his landed estates, and by his will, he settled them on trusts that were designed to prevent his descendants from disentailing them for as long a period as possible, but made the enjoyment of possession by each successive remainderman conditional on adopting the name and arms of Howard. Each tenant for life was required within one year of entitlement to adopt that name and to apply for and endeavour to obtain a royal licence or take such other steps as requisite to use and bear the name and arms of Howard. There was a forfeiture provision in the clause to the effect that if the tenant for life should refuse or neglect to adopt the name and arms or to take such steps within that period, then the estate for life of that person would at its expiration determine. In the events that occurred, the respondent’s father contended that the clause was void for uncertainty and took no action to comply with it during the year that elapsed following his mother’s death with the result that his estate for life was forfeited on 5 January 1961. However, Wilberforce J upheld the validity of the clause; see [1961] Ch 507. The respondent then applied to the College of Arms in October 1961 for a petition and the Home Office gave permission for it to proceed in November 1961 but, due to delay in establishing a cousin’s pedigree, it was not lodged until after the expiry, on 5 January 1962, of the year following his entry into possession of the estate for life. The royal licence was issued on 3 May 1962 and shortly afterwards the respondent took on the name and arms of Howard. The appellant, who was his son, was the first tenant in tail who was able, after a disentail, to obtain a part of the estate but which was lost through mismanagement. He then sought to recover the other part of the estate by alleging that his father had incurred a forfeiture under the name and arms clause, but that it had been hidden from him during the 50 years that had since passed. Thus, the sole question for the court as a preliminary issue was whether, on the true construction of the testator’s will, the respondent had forfeited his estate for life under the name and arms clause. Proudman J held that he had not and the appellant appealed.
Held (dismissing the appeal)
There was no presumption either for or against forfeiture. The name and arms clause should be interpreted in the same way as any other clause in a will; the object being to ascertain the testator’s intention from the words that he has used and interpreting the clause as a whole in the context of the will and the circumstances surrounding its execution that may reasonably be expected were known to the testator. As a matter of impression, the respondent had sufficiently complied with the clause by instructing the herald at the College of Arms to seek to obtain the royal licence within the year. It merely required the tenant for life to ‘apply for and endeavour to obtain’ the royal licence, not that the petition had to be presented to the queen within the year. The word ‘apply’ was used, not ‘petition’, and that bore a looser meaning that was of wider application than ‘present the petition’. Moreover, once an application had been made, the handling of the presentation was a matter for the College of Arms. The obligation to adopt the name was not independent of the obligation to use and bear the arms since the clause appeared to treat them as a single entity – the draftsman would not have devised the wording in a vacuum but would have had regard to the terms of the royal licence, and the respondent having made the application could not properly have used the name without the royal licence. Consequently, there was no obligation to adopt the name if an application for a royal licence was made but not granted within the year, and therefore no ‘refusal or neglect’ to take it up for the purposes of the forfeiture provision. As the testator had used the word ‘or’, that had to read disjunctively so that forfeiture would follow if there had been a refusal or neglect either to adopt the name and arms or to apply for and endeavour to obtain the royal licence within a year. The provision did not apply if in fact the heir had within the year made an application for a royal licence and endeavoured thereafter to obtain it.
JUDGMENT LADY JUSTICE ARDEN: [1] This appeal is about a clause in a will known as a ‘name and arms clause’, which I will call a ‘NAC’. In it, the testator declares that the heir to specified estates devised by his will must use the testator’s name and bear his coat of arms. If necessary, …Continue reading "Howard v Howard-Lawson [2011] EWHC 63 (Ch)"