ICLR: Chancery Division/1903/Volume 2/In re WOOLLEY. WORMALD v. WOOLLEY. [1903 W. 31.

] - [1903]
2 Ch. 206
[1903] 2 Ch. 206
[CHANCERY DIVISION]
In re WOOLLEY. WORMALD v. WOOLLEY. [1903 W. 31.]
1903 April 2, 8.
JOYCE J.
Will - Construction - Gift after Life Estate to Children, to Grandchildren then living "or the Issue of such as
may have died" - Original or Substitutional - Conjunctions "or" and "and" - Joint Tenancy or Tenancy in
Common.
Testator gave his property to trustees upon trust after the death of the survivor of his children to divide the
same between and among his "grandchildren then living equally per stirpes and not per capita, or the issue
of such as may have died (such issue taking a parent's share only), that my grandchildren (or their issue)
may take their shares equally in loco parentis":-
Held, that the gift to the issue of the grandchildren was original and not substitutional, and that a
great-grandchild of the testator who predeceased his own parent and the last surviving tenant for life took a
vested interest:
Held, also, that upon the whole will the issue of the grandchildren took as tenants in common.
Martin v. Holgate, (1866) L. R. 1 H. L. 175, followed.
In re Merrick's Trusts, (1866) L. R. 1 Eq. 551, considered and explained.
STEPHEN WOOLLEY, by his will dated June 22, 1860, gave all his real and personal estate to
Benjamin Woolley and Jabez Woolley, upon trust out of the income of his estate to pay to his
widow during her widowhood, and to his daughter Kesia (the widow of Joseph Lupton) during her
life, a weekly sum, and to pay the residue of the said income to his sons Edward, Benjamin,
Jonathan, and John, and his daughter Elizabeth (the widow of James Tempest), in equal shares.
And he further directed that on the death or re-marriage of his widow the weekly payment to his
daughter Kesia should cease, and the whole of the income should be paid equally between and
among his daughters Kesia and Elizabeth, and his sons Edward, Benjamin, Jonathan, and John;
and on the death of the survivor of his said children he directed his trustees to divide the trust
estate between and among his "grandchildren then living equally per stirpes and not per capita, or
the issue of such as
[1903] 2 Ch. 206 Page 207
may have died (such issue taking a parent's share only), so that my grandchildren (or their issue)
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may take their shares equally in loco parentis." And he empowered his trustees to apply the interest
and produce of the share of the said principal moneys of any of his grandchildren (or their issue) in
their support and education during their respective minorities.
The testator died on August 15, 1860, leaving surviving his widow (who died on November 2, 1872)
and six children, namely:-
1. Edward Woolley, who died without issue on October 19, 1864.
2. Benjamin Woolley, who died without issue on October 22, 1861.
3. Kesia Lupton, who died July 16, 1877, leaving a child, the defendant Mrs. Sarah
Carter.
4. Elizabeth Tempest, who died March 27, 1890, having had one child, Mary Jane
Webster, who died November 2, 1901, having had three children, Frederick Charles
Webster (who died without issue on December 17, 1900, having previously married
the defendant Alice Lodge, who was his sole executrix and legatee), and the daughter
Annie Webster and Arthur Ernest Webster.
5. Jonathan Woolley, who died September 2, 1889, having had four children, some
of whom had died leaving issue.
6. John Woolley, who died February 25, 1902, leaving one child, Walter John
Woolley.
This was an originating summons, taken out by the present trustees of the will, raising, inter alia,
the following questions:-
1. Whether the testator's great-grandchild, F. C. Webster, who died before his
mother, M. J. Webster, now deceased, and before the said John Woolley, took a
vested interest in the testator's estate?
2. Whether the issue of the testator's grandchildren took as joint tenants or as
tenants in common?
Baker, for the trustees.
Hughes, K.C., and Underhill, for Mrs. Lodge. F. C. Webster took a vested interest notwithstanding his death
before his
[1903] 2 Ch. 206 Page 208
mother and before John Woolley. There is nothing on the face of the will to suggest the necessity of the
great-grandchildren of the testator surviving their own parents or the tenant for life in order to entitle them to
take: Martin v. Holgate (1); In re Smith's Trusts (2); Theobald on Wills, 5th ed. 584.
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[JOYCE J. referred to King v. Cleaveland. (3)]
Younger, K.C., and Clauson, for the defendants W. J. Woolley, A. Webster, A. E. Webster, and Mrs. Carter.
The gift to the issue of the grandchildren is substitutional. "Or" is disjunctive here, and does not mean "and."
The gift being substitutional, in order to take a vested interest F. C. Webster must have survived his mother:
In re Merrick's Trusts. (4) The great-grandchildren take as joint tenants, there being no words of severance.
G. Cave, for the issue of Jonathan Woolley.
JOYCE J. (after referring to the will). With reference to the word "or" occurring in the foregoing disposition, it
is not, I think, necessary to go so far as to say that it must be read "and." In a similar case, King v.
Cleaveland (3), Turner L.J. said: "The word 'or' in this case, following, as it does, immediately upon the words
'then living,' seems to me to be the proper commencement of an independent gift. The testator having
completed the gift to the children then living, it occurs to him that some of the children may have died, and he
proceeds to provide for that event and does so by extending the gift to their legal personal representatives.
This word 'or' seems to me to be put in opposition to the words 'then living,' and to have the same effect as if
the testator had said, 'or in case any of them be then dead, to their legal personal representatives.' "The only
gift to grandchildren in the present case being to those then living, and therefore wholly contingent until the
death of the last survivor of the children, and no interest of any sort or kind being made to vest in any
grandchild before the period when the distribution was to take place,
(1) L. R. 1 H. L. 175.
(2) (1878) 7 Ch. D. 665.
(3) (1859) 4 De G. & J. 477, 487.
(4) L. R. 1 Eq. 551.
[1903] 2 Ch. 206 Page 209
the gift to great-grandchildren by virtue of the words "or the issue of such as may have died (such issue
taking a parent's share only)" appears to me to be in no sense substitutional, but a distinct independent
substantive, or, as it is sometimes called, an original gift. It is so when tried by the rule enunciated by
Kindersley V.-C. in Lanphier v. Buck (1), in which his Honour says: "A gift to issue is substitutional when the
share which the issue are to take is by a prior clause expressed to be given to the parent of such issue: and
a gift to issue is an original gift when the share which the issue are to take is not by a prior clause expressed
to be given to the parent of such issue." The judgment of Turner L.J. in King v. Cleaveland (2) is to the same
effect. Further, the decision in Martin v. Holgate (3) is to my mind an unquestionable and conclusive authority
upon this part of the case, even if there might otherwise have been any room for doubt upon it. The question
whether each great-grandchild must, in order to take, survive its own parent did not actually arise in that
case, though there are to be found in the judgments some incidental observations bearing upon the point.
The gift here in question is original and independent, and there is nothing expressed in this will, nor is there
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anything involved in the terms of the gift (which I have held not to be substitutional), even to suggest that a
great-grandchild is precluded from taking unless or until it survive its parent. There is no artificial or other rule
of construction, nor, as I think, any decision since Martin v. Holgate (3) that requires this. The decision of
Lord Hatherley, when Vice-Chancellor, in In re Merrick's Trusts (4), not long before the hearing in the House
of Lords of Martin v. Holgate (3), has been pressed upon me. Kindersley V.-C. had said in Lanphier v. Buck
(5), as reported in 34 L. J. (Ch.) 650, 657: "I conceive that the true rule upon principle that ought to be
applied is this, that if the gift be an original gift to issue, they need not survive the parent, but if it be a gift by
substitution, then they must survive the parent in order to be
(1) (1865) 2 Dr. & Sm. 484, 494.
(2) 4 De G. & J. 477, 487.
(3) L. R. 1 H. L. 175.
(4) L. R. 1 Eq. 551.
(5) 2 Dr. & Sm. 498.
[1903] 2 Ch. 206 Page 210
substituted for the parent." Lord Hatherley quotes this with approval as very sound sense, and as a lucid
interpretation of the principle upon which the Court ought to proceed. But he then held, as appears by the
terms of the order made, that, in the case before him, the issue to take must survive their parents. The
explanation is that, rightly or wrongly, he considered the gift there in question to be substitutional. He must, I
suppose, have done this either because he thought that the gift to the children of a deceased child named in
the will was in substitution for the share the parent would have taken, or because he considered that by a
prior clause the share which the issue were to take was in the first instance expressed to be given to the
parent of such issue. I am unable to reconcile the decision upon this point in In re Merrick's Trusts (1) with
the later decision in Martin v. Holgate (2), which, of course, I must follow as that of a superior tribunal. I may
add that the doubt which I expressed during the argument as to whether the whole of the marginal note in
the report of In re Merrick's Trusts (1) be warranted by the judgment is fully confirmed by the observations of
James L.J., when Vice-Chancellor, in Hurry v. Hurry (3), where he says: "I do not consider that the remarks
of the Lord Chancellor in In re Merrick's Trusts (1) warrant the conclusion that every gift which is preceded by
the word 'and' is an original and not a substitutional gift."
It was argued, however, that the gift to the issue of the grandchildren - that is, to great-grandchildren issue of
each deceased grandchild - was a gift in joint tenancy. I do not think this is consistent with a fair reading of
the will. As among the grandchildren there is a severance by the words "equally per stirpes and not per
capita." The later words, "so that my grandchildren or their issue may take their shares equally in loco
parentis" (being double or repeated words of severance), are superfluous as relating to grandchildren. I think
they of themselves express that the issue, or rather each family of great-grandchildren, are to take their
shares equally between
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(1) L. R. 1 Eq. 551.
(2) L. R. 1 H. L. 175.
(3) (1870) L. R. 10 Eq. 346, 348.
[1903] 2 Ch. 206 Page 211
themselves just as much as the grandchildren. But in a case of ambiguity the Court very properly leans to the
construction which creates a tenancy in common in preference to a joint tenancy. Not one ordinary person in
twenty, I doubt whether one in a hundred, not being a lawyer, has the slightest idea that a devise or bequest
to several nominatim, or to a class of persons without more, does not confer upon each a several and
separate share which would pass to his representatives. So, as Lord Hatherley says in Robertson v. Fraser
(1), "anything which in the slightest degree indicates an intention to divide the property must be held to
abrogate the idea of a joint tenancy." Here, moreover, that my reading of the words of the will in this respect
must be the correct one is established by the terms of the subsequent clauses in reference to maintenance
and separate use where the shares of great-grandchildren as well as of grandchildren are mentioned and
referred to: Gant v. Laurance (2); and see also L'Estrange v. L'Estrange. (3)
The consequence is that, in my opinion, the great-grandchild Frederick Charles Webster, who lived to be
married, but died before his mother, took a share which has passed to his representative.
Solicitors: O. Edmonds, for Ford & Warren, Leeds; Thorowgood, Tabor & Hardcastle, for Bond, Barwick &
Co., Leeds; M. L. B. Braund.
G. A. S.
(1) (1871) L. R. 6 Ch. 696, 699.
(2) (1811) Wigh. 395; 12 R. R. 747.
(3) [1902] 1 I. R. 372, 467.
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EQUITY LEANS AGAINST JOINT
TENANCY