Lynch Investment Trust Ltd v Jones et Al

• Jurisdiction: Barbados
• Court: High Court (Barbados)
• Judge: Gomes, CJ.,Gomes, C. J.
• Judgment Date: 13 November 1957
• Neutral Citation: BB 1957 HC 6
• Date: 13 November 1957

Court of Ordinary (High Court)

Gomes, V.C.

Lynch Investment Trust Ltd.

and

Jones et al

Appearances:

Mr. J. S. B. Dear with Cottle, Catford & Co. for the applicants.

Will - Construction — Principles applicable.

JUDGEMENT ON PRELIMINARY POINTS

Gomes, CJ.

1 The plaintiff company is the trustee under the will of the late James Challenor Lynch to which he left a certain sum of money to be held in trust to be divided into six shares for his six children giving to each child a special power of appointment in respect of his one-sixth share.

2 One of these children, Percy Algernon Lynch (hereinafter referred to as “the testator”) died testate and it is in respect of certain terms of his will that this matter has arisen. The first-named defendant is the widow of that son, the second-named defendant their only child and daughter and the remaining defendants their grand-children. No question arises with respect to the benefit which accrued to his widow: the only question relates to the benefits which accrue to the only child and/or grandchildren by virtue of the exercise or purported exercise of or the failure of execution of the testator's special power of appointment.

3 It is clear from the will of the testator that the objects of his bounty were, or were to be, four classes – his widow, his only daughter, his grandchildren and, contingent on the failure of his bounty with regard to the second and third classes (a contingency which did not arise) his brothers and sisters and their issue. For convenience therefore and in order to avoid confusion I shall hereafter refer to only the relevant objects, viz, the daughter and the grand-children.

4 The most relevant portion of the testator's will (clause 18) is in the following terms:

“WHEREAS under the trusts of the will of my late father James Challenor Lynch I have a special power by deed or will of appointing my share of the residuary trust funds of the said will (but subject to the payment out of the annual income thereof to my wife of five hundred pounds per annum) for the benefit of my children and other issue born in my lifetime or in due time thereafter and failing children or other issue then among my brothers and sister and their issue in such manner in all respects as I should think fit NOW in exercise of the said power and of any and every other enabling me in this behalf I hereby direct and appoint that the trustee of the will of the said James Challenor Lynch being The Lynch Investment Trust Limited shall from and after my death stand possessed of my share of the said residuary trust funds (hereinafter called the appointed fund) upon trust to invest the same in manner directed by the will of the said James Challenor Lynch and subject to the payment out of the annual income thereof to my wife during her life of the said sum of five hundred pounds as provided by the will of the said James Challenor Lynch during the life of my daughter the said Joan Paula Luise Jones to set aside annually three sums of three hundred pounds each and to hold and apply such sums in manner hereinafter directed and subject thereto upon trust as to the balance of the annual income of the appointed fund to apply the whole or such part as my trustees shall think fit for the personal maintenance and support of my daughter the said Joan Paula Luise Jones or to pay the said income or such part as my trustee shall think fit to any person or persons to be so applied without liability on the part of my trustee to enquire into the application thereof or at the discretion of my trustee to pay or apply the whole or such part as it shall think fit of the said income for the benefit of the said Joan Paula Luise Jones or her children and other issue for the time being in existence or some one or more of them if any to the intent that my trustee may be entitled to adapt the disposition of the income to the circumstances of the said Joan Paula Luise Jones and thereby secure as far as possible her personal enjoyment thereof and prevent the same from becoming the property of her alienees or creditors. And I direct that the trustee shall stand possessed of the appointed fund from and after the death of my said daughter upon trust or trusts for the benefit of all or any one or more of the children or other issue of my said daughter (such children and other issue to be born in my lifetime or within twenty-one years after) as my said daughter by any deed or deeds with or without power of revocation and new appointment or will or any codicil thereto appoints and in default of such appointment and so far as any such appointment shall not extend upon trust for all the children of the said Joan Paula Luise Jones who being male shall attain the age of twenty-one years or being female shall attain that age or marry in equal shares and if there shall be only one such child the whole to be in trust for that one child but no child of the said Joan Paula Luise Jones in favour of whom or any of whose issue an appointment shall be made under the power last aforesaid shall participate in the unappointed portion of the appointed fund without bringing the appointed interest into hotchpot unless the said Joan Paula Luise Jones in making such appointment shall thereby direct to the contrary …..”

5 After the first hearing, at which the parties named in the rubric were represented by counsel, I made the following oral declaration:

“Intention of the testator that three sums of £300 should be set aside. There are indications in clauses 19 and 20 and extrinsic evidence that this money should be set aside for the benefit of the children of Mrs. Jones.

• 1. Paula Jones is entitled to the income subject to 1500 to the widow and subject to £900 being paid to the 6 children with power to the trustee to advance to the full amount.

• 2. After the death of Mrs. Jones the capital goes to such of the children as being male attain 21 years or being female attain that age or marry.

• 3. Costs as between solicitor and client as to

• 7/8 from the appointed fund, and

• 1/8 from the estate of P. A. Lynch.”

6 On a subsequent date counsel for the trustees sought and obtained my consent to re-open the matter for further argument on that part of my declaration that dealt with the disposition of the three sums of £300. It is necessary to state briefly the facts on which counsel based his grounds and reasons for his request. In their application for probate in solemn form of law of the testator's will the executors and trustees stated (as was the fact) that the testator had cut, removed and destroyed certain portions of the will and they alleged that that had been done with the intention of revoking and making void the said portions. In his judgment the judge of the probate court, inter alia, said:

“I find that clause 18 is revoked by partial destruction in so far only as the exercise of the power of appointment in respect of the three sums of £300 each is concerned.”

7 Counsel submitted that, in view of that finding, that portion of the will that referred to or dealt with the three sums of 000 each had been rendered void and therefore formed no part of the testament that had been admitted to probate; that a court of construction cannot be asked to construe a document or any part of it that had not been admitted to probate and that therefore that part of the declaration that was founded on a consideration and construction of the voided portion should not, or cannot, be allowed to stand.

8 I think I am correct in saying that the effect, or perhaps I should say the effect in relation to this proceeding of the finding of the probate judge, was not really or not fully debated at the first hearing, and it was for that reason (and no doubt other counsels' reticence in putting forward any objections were based on a similar reason) that I allowed plaintiff counsel's request. I told counsel for the plaintiff that I agreed with him in a general way that a court of construction could not be called upon to deal with a document that had not been admitted to probate but, as the situation here is somewhat different, I consider therefore that I should deal in the first place with the question whether the portion referred to has or has not been admitted to probate and, if admitted, what effect the decision of the probate court has on a court of...