[HOUSE OF LORDS]

AND

Will - Construction - Forfeiture clause - Prohibition of being Roman Catholic - Shifting clause - Acceleration of interest - Decision that accelerated interest not determined by birth of son to original tenant for life - Whether son estopped from claiming against remaindermen - Operation of forfeiture clause - Whether son incurred forfeiture between coming of age and executing disentailing deed

Will - Construction - Uncertainty - Condition subsequent - If any person entitled should be a Roman Catholic his estate should determine and be utterly void - Whether void for uncertainty or public policy - Whether tendency to influence parents' decisions relevant

By clause 6 of his will a testator who died in 1936 settled certain estates upon trust for C for life with remainder to his first and other sons successively in order of seniority in tail male, with remainder to J (the younger brother of C) for life with remainder to his first and other sons successively in order of seniority in tail male, with remainders over. By clause 9 if any person who should become entitled as tenant for life or tenant in tail male to possession of the estate should

"be or become a Roman Catholic... the estate hereby limited to him shall cease and determine and be utterly void and my principal estate shall thereupon go to the person next entitled... in the same manner as if the person whose estate shall so cease determine and become void being a tenant for life were then dead or being a tenant in tail male were then dead without issue inheritable under the estate tail."

In November 1939 C was received into the Roman Catholic Church. He had then no son and in June 1940 Farwell J. on an originating summons held that he had forfeited his life interest and that the interest of J was accelerated, subject to determination in the event of the birth of a son. In June 1949 a son, M, was born to C and was received into the Roman Catholic Church by baptism in infancy. In February 1950 Wynn-Parry J. on an originating summons held that the interest of J had not determined by reason of the birth of M. In 1970 M (having attained his majority by the operation of the Family Law Reform Act 1969) executed a deed of disentail, with the consent of C and J as protectors of the settlement, and also assigned to J all the interest (if any) to which he was entitled in equity in the settled estates during the life of J.

In 1971 proceedings were commenced to determine how the trust property should be held on the death of J. Goulding J.,

whose decision was affirmed by the Court of Appeal, held that the property would be held on the same trusts as would have taken effect if C had previously died without issue.

On M's appeal: -

Held, (1) (Lord Wilberforce and Lord Fraser of Tullybelton dissenting) that, on the true construction of the will, the property should be held during the remainder of the life of C on the same trusts as would have taken effect if he had previously died without issue and subject thereto on trust for M, since the terms of clause 9 meant no more than that on forfeiture the subsequent interests were to be accelerated although the life tenant was still alive, and did not prevent M from taking an entailed interest on his birth (post, pp. 428A,435A-B, 440F, 441A-B).

Doe d. Heneage v. Heneage (1790) 4 Term Rep. 13 applied.

(2) That, since the remaindermen were not represented in the proceedings before Wynn-Parry J., there could be no estoppel between them and M, since estoppels must be mutual. and accordingly M was not estopped from claiming as against them that he was entitled to an entailed interest after J, whether on his death or subject to his interest (post, pp. 419C-E,F-G, 427B-C, 430A-D, 439A-B, 441G).

(3) That such a forfeiture clause was not invalid either for uncertainty or for public policy (post, pp. 424G, 425H - 426B,427H, 429D-E, 441C-E, G-H).

Clayton v. Ramsden [1943] A.C. 320, H.L.(E.) and In re Borwick [1933] Ch. 657 distinguished.

(4) (Lord Wilberforce and Lord Fraser of Tullybelton dissenting) that M incurred no forfeiture by remaining a Roman Catholic between coming of age and executing the disentailing deed because any entailed interest which he may have had was not an interest in possession to which alone the condition in clause 9 applied (post, pp. 427H - 428A, 436D, 441F).

Quaere. Whether such a forfeiture clause was void as against a person who was an infant at the date when the instrument containing the relevant interest took effect because it might influence the decision of his parents as to what (if any) religious education he was to receive (post, pp. 426F - 427A, 435E-H, 436C-D, 441H - 442A).

Decision of the Court of Appeal reversed.

The following cases are referred to in their Lordships' opinions:

Blathwayt's Will Trusts, In re [1950] 1 All E.R. 582.

Borwick, In re [1933] Ch. 657.

Brooke, In re [1923] 2 Ch. 265, C.A.

Carr v. Earl of Erroll (1805) 6 East 58.

Church Property Trustees of the Diocese of Newcastle v. Ebbeck (1960) 104 C.L.R. 394.

Clavering v. Ellison (1859) 7 H.L.Cas. 707, H.L.(E.).

Clayton v. Ramsden [1943] A.C. 320; [1943] 1 All E.R. 16, H.L.(E.); sub nom. In re Samuel [1942] Ch. 1; [1941] 3 All E.R. 196, C.A.

Clive v. Clive (1872) 7 Ch.App. 433.

Conyngham, In re [1921] 1 Ch. 491, C.A.

Doe d. Heneage v. Heneage (1790) 4 Term Rep. 13.

Evans, In re [1940] Ch. 629.

Lambarde v. Peach (1859) 4 Drew. 553.

McCausland v. Young [1948] N.I. 72; [1949] N.I. 49.

McKenna, decd., In re, Higgins v. Bank of Ireland [1947] I.R. 277.

May, In re [1917] 2 Ch. 126.

May, In re (No. 2) [1932] 1 Ch. 99, Luxmoore J. and C.A.

Morrison's Will Trusts, In re, Walsingham v. Blathwayt [1940] Ch. 102; [1939] 4 All E.R. 332.

Patton v. Toronto General Trusts Corporation [1930] A.C. 629, P.C.

Sandbrook, In re [1912] 2 Ch. 471.

Stanley v. Stanley (1809) 16 Ves.Jun. 491.

Talbot v. Earl of Shrewsbury (1840) 4 My. & Cr. 672.

Tegg, In re [1936] 2 All E.R. 878.

Wright, In re (1937) 158 L.T. 368.

The following additional cases were cited in argument:

Allen, decd, In re [1953] Ch. 116; [1953] 2 W.L.R. 244; [1953] 1 All E.R. 308; [1953] Ch. 810; [1953] 3 W.L.R. 637; [1953] 2 All E.R. 898, C.A.

Baden's Deed Trusts, In re [1971] A.C. 424; [1970] 2 W.L.R. 1110; [1970] 2 All E.R. 228, H.L.(E.).

Balkind, decd., In re [1969] N.Z.L.R. 669.

Brown's Will, In re (1884) 27 Ch.D. 179.

Bullock v. Downes (1860) 9 H.L.Cas. 1, H.L.(E.).

Connecticut Fire Insurance Co. v. Kavanagh [1892] A.C. 473, P.C.

Defries, In re (1883) 48 L.T. 703.

Dickson, Ex parte (1850) 1 Sim.N.S. 37.

Donaghey v. P. O'Brien & Co. [1966] 1 W.L.R. 1170; [1966] 2 All E.R. 822, C.A.; sub nom. Donaghey v. Boulton & Paul Ltd. [1968] A.C 1; [1967] 3 W.L.R. 829; [1967] 2 All E.R. 1014, H.L.(E.).

Evanturel v. Evanturel (1874) L.R. 6 P.C. 1, P.C.

Executor Trustee and Agency Co. of South Australia Ltd. v. Deputy Federal Commissioner of Taxes (South Australia) (1939) 62 C.L.R. 545.

Falkiner v. Commissioner of Stamp Duties [1973] A.C. 565; [1973] 2 W.L.R. 334; [1973] 1 All E.R. 598, P.C.

Fussell v. Dowding (1884) 27 Ch.D. 237.

Giffard v. Hort (1804) 1 Sch. & Lef. 386.

Henderson v. Henderson (1843) 3 Hare 100.

Lane v. Esdaile [1891] A.C. 210, H.L.(E.).

Lysaght, decd., In re [1966] Ch. 191; [1965] 3 W.L.R. 391; [1965] 2 All E.R. 888.

Shiloh Spinners Ltd. v. Harding [1973] A.C. 691; [1973] 2 W.L.R. 28; [1973] 1 All E.R. 90, H.L.(E.).

Tasmania (Owners) v. City of Corinth (Owners) (1890) 15 App.Cas. 223 H.L.(E.).

Waring, In re [1948] Ch. 221; [1948] 1 All E.R. 257.

Wemyss v. Wemyss's Trustees, 1921 S.C. 30.

Whitehouse v. Board of Control [1960] 1 W.L.R. 1093; [1960] 3 All E.R. 182, H.L.(E.).

Williams, In re (1860) 6 Jur.N.S. 1064.

Yat Tung Investment Co. Ltd. v. Dao Heng Bank Ltd. [1975] A.C. 581; [1975] 2 W.L.R. 690, P.C.

APPEAL from the Court of Appeal.

This was an appeal, by leave of the Court of Appeal, from an order of that court (Davies, Karminski and Stamp L.JJ.) dated March 16, 1972, affirming an order of Goulding J. dated July 9, 1971.

The respondents, Frederick Lee, Baron Cawley, Charles Stephen Hare Blathwayt and Edward Herbert Frank were the trustees of a settlement created by the will dated August 7, 1934, of Robert Wynter Blathwayt, deceased in 1936, the testator. By clause 6 of the will the testator gave the settled property (a) upon trust for Christopher George Wynter Blathwayt during his life with remainder (b) upon trust for the first and other sons of Christopher successively in order of seniority in tail male with remainder (c) upon trust for the respondent Justin Robert Wynter Blathwayt during his life with remainder (d) upon trust for the first and other sons of Justin successively in order of seniority in tail male, with remainders over. By clause 9 of the will the testator declared that the estate of any person who, being entitled as a tenant for life or tenant in tail male by purchase to the possession of the settled property should (a) be or become a Roman Catholic or (b) disuse the surname and arms of Blathwayt should be forfeited.

The appellant, Mark Henry Wynter Blathwayt, was the first son of Christopher. Justin had no sons. The respondent, the Reverend Linley Dennys Blathwayt, was the person next entitled in remainder to the settled property on the determination or failure of the estates limited to the first and other sons of Justin.

The facts, stated by Lord Wilberforce, were as follows: The will was made on August 7, 1934, and the first three respondents are the present trustees. We are concerned only with the trusts affecting the trust estates in Somerset and Gloucestershire, or their proceeds of sale, referred to as "my principal estate." By clauses 6 to 9 of the will the principal estate was settled on the following trusts and subject to the following powers and provisions:

"6. (a) Upon trust for Christopher George Wynter Blathwayt (the elder son of my late cousin Henry Wynter Blathwayt) during his life with remainder (b) Upon trust for his first and other sons successively in order of seniority in tail male with remainder (c) Upon trust for Justin Robert Wynter Blathwayt (the younger son of my said late cousin) during his life with remainder (d) Upon trust for his first and other sons successively in order of seniority in tail male with remainder (e) Upon trust for the said Francis Linley Blathwayt during his life with remainder (f) Upon trust for such person or persons being male and for such purposes as the said Francis Linley Blathwayt shall by any deed revocable or irrevocable or by will or codicil appoint.

"Provided always and I hereby declare that if any person in whose favour such an appointment shall be made shall: - (a) Be a Roman Catholic at the date when such appointment takes effect or (b) If not then using or bearing the surname and arms of Blathwayt shall neglect or refuse or fail within 12 months from the date aforesaid to assume the said surname (either with or without his or her own proper surname) and apply for proper authority to bear the said arms (either alone or marshalled with his or her own arms) and in case such authority shall be obtained to assume such arms forthwith then and in any of such cases my principal estate or the portion thereof appointed to such person shall go and devolve as if such appointment had never been made.

"7. I declare that if any person who under the limitations herein contained (including this clause) of my principal estate takes an estate in tail male by purchase shall be born in my lifetime then and in every such case I revoke such estate in tail male and in place of such estate in tail male my trustees shall hold the principal estate (a) Upon trust for such person for life with remainder (b) Upon trust for his or her first and other sons successively in tail male with the like remainders over as are hereinbefore limited to take effect after the determination of such estate in tail male so revoked as aforesaid...

"9. I further declare that if any person who under the trusts hereof shall become entitled as tenant for life or tenant in tail male by purchase to the possession of my principal estate shall (a) Be or become a Roman Catholic or (b) Disuse the surname and arms of Blathwayt then and in either of such cases the estate hereby limited to him shall cease and determine and be utterly void and my principal estate shall thereupon go to the person next entitled under the trusts hereinbefore declared in the same manner as if the person whose estate shall so cease determine and become void being a tenant for life were then dead or being a tenant in tail male were then dead without issue inheritable under the estate tail and so that in the case of a tenant for life all powers annexed to his estate shall cease to be exercisable and that the enjoyment of any jointure rentcharge previously appointed by such person in favour of his wife under the power hereinafter contained shall not be accelerated."

Christopher George Wynter Blathwayt ("Christopher") was alive at the death of the testator in 1936 and was unmarried. He was received into the Roman Catholic church on November 10, 1939. The appellant Mark Henry Wynter Blathwayt ("Mark") is the eldest son of Christopher and was born on June 8, 1949: he was received into the Roman Catholic Church by baptism in infancy and has at all times adhered to the faith of that Church. He attained majority on January 1, 1970, by virtue of the Family Law Reform Act 1969. The third respondent Justin Robert Wynter Blathwayt, designated in clause 6 (c) of the will, is alive but has no son. The fourth respondent the Reverend Linley Dennys Blathwayt ("Linley") is the person next entitled in remainder to the settled estates by virtue of an appointment made pursuant to clause 6 (f) of the will.

On September 16, 1970, Mark executed a deed of disentail of the settled estates with the consent (as protectors) of Christopher and Justin. By a deed of assignment of the same date, Mark assigned to Justin all the interest (if any) to which Mark was entitled in equity in the settled estates during the life of Justin.

Proceedings in Chancery which took place in 1940 and 1949.

(i) The 1940 proceedings were brought by the then trustees as plaintiffs with Christopher and Justin as defendants. The questions submitted to the court were (a) whether Christopher had forfeited his life interest by reception into the Roman Catholic Church in 1939 and, if so, (b) whether Justin's life interest was accelerated subject to determination in the event of the birth of a son to Christopher, or (c) whether section 175 of the Law of Property Act 1925 applied so that the income of the settled estates

should be accumulated until the expiry of 21 years from the death of the trustee or the previous birth of a son to Christopher, or his previous death without having had a son; (d) generally, who was entitled to the income of the settlement estates.

This originating summons was heard by Farwell J. who, on June 5, 1940, made an order declaring that Christopher forfeited his life interest on reception into the Roman Catholic Church, and further declaring:

"... that the life interest of the defendant Justin Robert Wynter Blathwayt in the said settled property is accelerated subject to determination in the event of the birth of a son to the defendant Christopher George Wynter Blathwayt and the defendant Justin Robert Wynter Blathwayt is entitled to the income thereof and to the usual vesting deed."

(ii) The 1949 proceedings were brought soon after, and no doubt in consequence of, the birth of Mark. The parties were the then trustees as plaintiffs and Justin and Mark as defendants. Mark was represented by Christopher as his guardian ad litem. The questions submitted to the court were: (a) whether the life interest (sic) of Justin was determined upon the birth of Mark, and (b) generally that it might be determined what were the respective estates interests and rights in or over the settled estates of the two defendants (i.e., Justin and Mark respectively).

On February 22, 1950, an order on this summons was made by Wynn-Parry J. [In re Blathwayt's Will Trusts [1950] 1 All E.R. 582]. This contained a declaration:

"... that upon and by reason of the birth on June 8, 1949, of the infant defendant Mark Henry Wynter Blathwayt the life interest of the defendant Justin Robert Wynter Blathwayt in the settled estates comprised in the above mentioned settlement or otherwise under the trusts of the will of the above mentioned Robert Wynter Blathwayt has not determined."

A report of the judgment given by the learned judge was available and included in the record. He was reported as having said, in explanation of his judgment, that he had not decided as to what was to happen on the death of Christopher and had only decided that Justin's interest had not determined on Mark's birth.

(iii) The present proceedings were started in 1971. The substantive question submitted to the court was whether:

"(a) upon the death of Justin Robert Wynter Blathwayt or (b) upon the forfeiture of the estate limited to the said Justin Robert Wynter Blathwayt during his life by the said will the property then subject to the trusts of the said will will be held - (i) upon trust for the defendant Mark Henry Wynter Blathwayt absolutely or (ii) upon the same trusts during the remainder of the life of the said Christopher George Wynter Blathwayt (if he is then living) as would have taken effect if the said Christopher George Wynter Blathwayt had previously died without having had issue and subject thereto upon trust for the defendant Mark Henry Wynter Blathwayt or (iii) upon the same trusts as would have taken effect if the said Christopher George Wynter Blathwayt

had previously died without having had issue or (iv) upon some other and if so what trusts."

This question was answered by Goulding J. and the Court of Appeal in the sense of (iii).

A. J. Balcombe Q.C. and J. M. Chadwick for the appellant. The law dislikes forfeiture clauses because they take away what has already been given. When the testator intended to cut out Christopher he did not intend to cut out any of Christopher's sons. The issues are: (i) whether the forfeiture clause itself is valid, assuming that the appellant is given leave to argue this point which involves the questions of certainty and public policy in the light of changing attitudes; (2) whether Justin's interest determined on the birth of Mark; (3) if Justin has a valid interest, whether, when it determines, the property goes to Mark absolutely.

As to the forfeiture point, Mark was not born till 1949 and accordingly not bound by the decision of Farwell J. in 1940 that Christopher's interest had been forfeited. No representation order had been made. The point that Christopher's life interest was not forfeited was not taken in the courts below in the present case because it would have been difficult to argue it below the level of the House of Lords: In re May (No. 2) [1932] 1 Ch. 99. In support of the application for leave to argue this point now reliance is placed on Connecticut Fire Insurance Co. v. Kavanagh [1892] A.C. 473, 480.

In Clayton v. Ramsden [1943] A.C. 320 the decision rested on the uncertainty inherent in the expression "of Jewish parentage." If the present case goes through without this point being argued it might be said that the House of Lords had declared that a clause of this kind was valid.

See also Tasmania (Owners) v. City of Corinth (Owners) (1890) 15 App.Cas. 223; Donaghey v. P. O'Brien & Co. [1966] 1 W.L.R. 1170, 1179-1180 and Donaghey v. Boulton & Paul Ltd. [1968] A.C. 1, 23-24, 31. The House of Lords has a judicial discretion to allow this point to be taken now, although it was not taken in the courts below.

G. M. Godfrey Q.C. and Elizabeth Gloster for the respondents. Counsel on this side appear in a representative capacity for unborn persons with interests liable to be defeated if the point now taken succeeds.

Leave should not be given to go behind a decision arrived at more than 25 years ago, although the House of Lords can allow points to be taken which were not raised in the courts below. Persons may have made dispositions on the faith of that decision, which was unappealed, and it would not be right to upset them now. The trustees were there to protect the interests of the remaindermen. A practice which may be adopted to deal with situations like that in the lower courts is to tell the court that, because of authority, it is not possible to argue a particular point but that it is desired to reserve it for a higher court. That practice was not followed in this case. The question is not one of jurisdiction but of law. The desire to raise this point was only heard of between the judgment of the Court of Appeal and the lodgment of the appellant's printed case in the House of Lords.

The race relations legislation excludes religion from consideration.

The difficulty is that public policy is a shifting thing and in 1975 one cannot be guided by what happened in 1925. In general, public policy relates to the present time but here it would be reasonable to look at it either as at the date of probate or at the date where Farwell J. would have been called on to decide the point.

Balcombe Q.C. It is conceivable that a different will raising this question might come before the House of Lords. Clayton v. Ramsden [1943] A.C. 320 changed the law. What has been done in the past can be overturned. A refusal to take the point now would only mean that it would arise at some other time. The words of this will are almost common form so that the question arising in another case would be almost indistinguishable in principle. The trustees took out this summons; it is not the appellant's. He was not a party to the proceedings before Farwell J., which were not contested by Christopher and in which the point was not raised. In Shiloh Spinners Ltd. v. Harding [1973] A.C. 691 a point abandoned in the Court of Appeal was raised in the House of Lords at the instance of the House. This is purely a question of judicial discretion. The point is one of considerable general importance and the House should take the opportunity to consider it. The House is in no worse a position to do so because it was not dealt with in the Court of Appeal.

[LORD WILBERFORCE intimated that their Lordships would not allow the point to be taken.]

Balcombe Q.C. The second question is whether Justin's interest determined on the birth of Mark. Since the remaindermen were not represented in the proceedings before Wynn-Parry J. there can be no estoppel between them and Mark since estoppels must be mutual: Halsbury's Laws of England, 3rd ed., vol. 15 (1956), p. 201, para. 379. Accordingly Mark is not estopped from claiming against them that he became on his birth entitled to an entailed interest after Justin. The trustees were the plaintiffs in the originating summons and Justin and Mark were defendants. There is nothing to prevent Mark from arguing that the decision of Wynn-Parry J. was wrong and that accordingly Goulding J. was also wrong. The construction of the shifting clause is res integra.

The appellant's primary construction is that which Goulding J. expressed as follows:

"There is no half-way house. It is possible to hold that the first interest is displaced, that the second is not yet ready, so that the third interest takes provisionally. That would mean that Christopher is displaced and Justin takes until the birth of Mark."

Goulding J. held that this, the third possible construction which he postulated was not open to him. The second possible construction, which he also rejected, would be acceptable to the appellant:

"One can limit the hypothesis of notional death to the purpose of excluding Christopher's own interest. One then looks at clause 6 to see who comes next, i.e., Mark. There is no room for Justin until after the eldest or only son of Christopher. This would result in the intermediate income being accumulated under section 125 of the Law of Property Act 1925, or, alternatively, such income being undisposed of."

If the House of Lords is against the appellant so far, then reliance would be placed on Goulding J.'s fourth possible construction:

"... that the testator's equation of forfeiture with death should be confined to the interest forfeited and the next interest in remainder at the date of forfeiture and should extend no further. That is to say, in 1939 the interest goes to Justin, as if Christopher had died in 1939, and Justin had it for life; but Linley or whoever else is in line of succession cannot then rely on the hypothesis of Christopher's death because Linley is not 'the person next entitled' at the time of the forfeiture."

If the House of Lords is against the appellant on all these points, leave is asked to appeal from the decision of Wynn-Parry J. This is a different case from Lane v. Esdaile [1891] A.C. 210 and that case should not be followed: see section 31 (1) (d) of the Supreme Court of Judicature (Consolidation) Act 1925. The Supreme Court Practice 1973, Vol. 2, p. 912, para. 332 and Whitehouse v. Board of Control [1960] 1 W.L.R. 1093, 1096 as to the finality of decisions. It is desired to keep this point open.

In clause 6 of the will the testator made his own order of priority putting Christopher's children in line before Justin. There is no reason why he should have wished to disinherit a son of Christopher even if Christopher became a Roman Catholic. The testator refers to "my personal estate" and the shifting clause shows who gets it. Wynn-Parry J. held that Justin's life interest was not determined by the birth of Mark who never got an interest in possession and still has not got one. The will should not be so construed as to defeat this principal purpose of clause 6.

The rules governing legal remainders are set out in Megarry and Wade, The Law of Real Property, 4th ed. (1975), pp. 183-195.

The limitations of clause 6 show an intention that on the determination of Christopher's estate under paragraph (a) the property is to be held on the trusts of paragraph (b) for his first and other sons successively in order of seniority before the estate limited to Justin by paragraph (c) can vest in possession. Clause 9 falls into three parts (i) the forfeiture provision; (ii) shifting provision and (iii) the accumulation provision. The two latter were included ta give effect to the forfeiture provision and not to defeat the primary limitations and, so far as possible, they should be construed to preserve the primary limitations. In construing the shifting provision the words "the person next entitled under the trusts hereinbefore declared" should be read as including a person unborn at the determination of the prior estate if that person will, when born, be entitled to a vested estate in possession under the primary limitations. So, on the determination of the life estate limited to Christopher, the person next entitled for the purposes of the shifting provision was the first son born to Christopher. The words "in the same manner as if the person whose estate shall so cease determine and become void being a tenant for life were then dead or being a tenant in tail male were then dead without issue inheritable under the estate tail" is a description of the estate which is to be taken by the person next entitled and is not a direction as to how the person next entitled is to be identified. Accordingly the hypothesis that Christopher is dead is not to be reflected back into the shifting provision so as to defeat the interest of his first son.

The hypothetical death of the forfeiting tenant for life is not to have precisely the same consequences as would have ensued if he had been actually dead.

Reliance is placed on Doe d. Heneage v. Heneage (1790) 4 Term Rep. 13, 16; Stanley v. Stanley (1809) 16 Ves.Jun. 491, 493, 508-509; Coke upon Littleton, 18th ed. (1823), vol. 2, Note II 1 and 2 to Book 3, c 11, s. 597 by Charles Butler; Lambarde v. Peach (1859) 4 Drew. 553, 554-555, 563-564, 568, 571, 575-576, 581; Davidson's Conveyancing, 2nd ed. (1861), vol. 3, part 1, pp. 273-290 and Megarry and Wade, The Law of Real Property, 4th ed., pp. 202-204. The object of such clauses is to enforce a course of conduct, i.e., to assume a certain name and arms or not to became a Roman Catholic.

If it be held that the expression "the person next entitled under the trusts hereinbefore declared" is a direction as to how the person next entitled is to be identified, the distinction between the hypothesis "... being a tenant for life were then dead" and "... being a tenant in tail male were then dead without issue inheritable under the estate tail" shows that the testator did not intend that a tenant for life should be treated as if he had died without issue. The distinction is not to be explained by the need to determine the estate tail in whole and not in part, since the words used are not appropriate for that purpose in a will drawn after 1925. Alternatively, if that were the right explanation, it would support the submission that the purpose of the acceleration provision was to define the estate to be taken by the person next entitled and not to identify that person.

The estate limited to Mark as the first son born to Christopher is not defeated by clause 9 and so, on the determination of the estate limited to Christopher it was necessary to determine whether the income of the settled property, pending the birth of a son to Christopher, was payable to Justin or should be accumulated under the provisions of section 31 of the Trustee Act 1925 and section 175 of the Law of Property Act 1925. This question was correctly decided by Farwell J.

Reliance is placed on In re Conyngham [1921] 1 Ch. 491 and In re Brooke [1923] 2 Ch. 265.

The appellant's argument involves holding that, on the true construction of the will and in the events which happened, when Mark was born (and not on the death of Justin) he should have been held to be entitled to the principal estates and should have come into possession. One is not bound to perpetuate the error of Wynn-Parry J. on the ground of estoppel. Because of his order the forfeiture clause never bit. The will is not to be construed in vacuo.

Mark could not forfeit his interest until he came of age and was able to make a choice of his religion: In re May [1917] 2 Ch. 126; In re May (No. 2) [1932] 1 Ch. 99 and Patton v. Toronto General Trusts Corporation [1930] A.C. 629. Mark came of age on January 1, 1970, by virtue of section 1 of the Family Law Reform Act 1969. He had been brought up by his father as a Roman Catholic and after that he should have had at least a year to reconsider matters, free from his preconditioning, before incurring any forfeiture. What is a reasonable time to make such a choice depends on all the relevant circumstances.

Further, since the effect of the decision of Wynn-Parry J. was that, as against Mark, the interest in possession resided in Justin, Mark could not forfeit on his birth, because he had not an interest in possession to forfeit. Thus he had a locus poenitentiae because being a Roman Catholic is a matter of volition. The forfeiture clause was not valid in so far as it operated on Mark when he was born or when he attained his majority.

Godfrey Q.C. If it is now sought to take a point which has not previously been taken, the appellant should ask for leave to do so. Leave has been already refused in relation to Christopher. Is it now sought to raise the point in relation to Mark? The respondents would not oppose this.

[LORD WILBERFORCE. We should not shut out this point as we shut out the other point previously.]

Balcombe Q.C. The forfeiture clause should not operate against Mark because (1) it is uncertain and (2) it is contrary to public policy.

As to uncertainty, see Clavering v. Ellison (1859) 7 H.L.Cas. 707, 725, per Lord Cranworth. It is not possible to say with certainty from the moment when the will came into operation whether a given person was a Roman Catholic, e.g., he might have been baptised and confirmed but at some later date he might have become an atheist or an agnostic without any overt act.

In the light of Clayton v. Ramsden [1943] A.C. 320, 325, 328-329, 331, 334, which cannot be distinguished from the present case, this clause is void for uncertainty. Since that decision it would be unreal to say that, although one cannot tell with certainty whether or not a person is of the Jewish faith, one can tell whether he is a Roman Catholic. The tests are the same. It is no more possible to say at the outset that a man is a Roman Catholic than that he is of the Jewish faith. If that cannot be said with certainty the clause is void, for a forfeiture condition must be defined with certainty. In re McKenna, decd. [1947] I.R. 277 and McCausland v. Young [1948] N.I. 72; [1949] N.I. 49, 55, 61, 99 were wrongly decided.

A Roman Catholic who has decided that he will not go to church any more might say that he was no longer a Roman Catholic but the Church might say that he still was. It may be that in 99 cases out of a hundred one can say with certainty that a person is a Roman Catholic, but in the hundredth case conflicting answers to the question might be possible. For the purposes of a forfeiture clause the test must be certain in all cases. One may be able to tell whether a person becomes a Catholic or professes the Catholic faith, because these are overt acts. But it is hard to say in all cases whether he is a Roman Catholic since he might start as one and gradually lapse from the faith.

Compare the language of section 2 of the Act of Settlement 1700 (12 & 13 Will. 3, c. 2).

This forfeiture clause is void on grounds of public policy. (1) If a clause like this, as a matter of construction, operates to defeat a benefit to a minor his parents might be tempted to bring him up in a particular way for the sake of the money and not because they thought it morally right. (2) In the light of present attitudes exemplified by such enactments as the Race Relations Act and the European Convention on Human Rights the courts would hold a clause discriminating against a person on religious grounds to be void.

As to (1), it is wrong to put a person into the dilemma of having to bring up his child so that either he must renounce his faith or lose a large inheritance: In re Williams (1860) 6 Jur.N.S. 1064; In re Sandbrook [1912] 2 Ch. 471, 476 and In re Borwick [1933] Ch. 657, 667-668.

If Mark had inherited (as he should have done) it would have been at his birth. But at that time he had no religion. The earliest he could have been said to have a religion was on his baptism as a Roman Catholic. But at that time in early infancy he had no volition and it would have been wrong to put pressure on his parents to make a decision which would affect the prospects of his inheritance: In re Tegg [1936] 2 All E.R. 878, 882. A forfeiture clause seeking to oblige a parent to send a child to a particular school would also be void because to do so might not be for the benefit of the child. There is no distinction in principle.

A child brought up in a particular faith is preconditioned to believe that it is the only one to which adherence should be given. The clause is void because preconditioning is unavoidable.

As to (2), the broad ground of public policy, this clause at the relevant time, 1949, the birth of Mark, was void because the courts would not then recognise clauses which sought to discriminate against a particular faith. Public policy is not static: Evanturel v. Evanturel (1874) L.R. 6 P.C. 1. 29. and public opinion is now against discrimination on grounds of race, sex or religion and discrimination should not be encouraged by the courts holding that such clauses are valid and enforceable. The Race Relations Acts make some forms of discrimination illegal. For the European Convention on Human Rights, see Brownlie's Basic Documents in International Law, 2nd ed. (1972), pp. 207, 209, 211 (articles 1, 9 and 14). The right of every man involves a corresponding fetter on someone else. A person's right to dispose of his own property may be fettered by the law against discrimination. In the light of the general development of public opinion in the last 30 years English law should not allow such discrimination as is represented by this clause. It is not a manifestation of religion to withhold one's property from a person because his religion is different from one's own. Compare In re Lysaght, decd. [1966] Ch. 191, 205-206 and In re Allen, decd. [1953] Ch. 116, 121, 810. It is just as undesirable to discriminate on grounds of religion by a condition precedent in the grant of a scholarship as in the present case. The test to be applied is to ask whether a testator or a settlor is discriminating against a particular religion or is making a selection in its favour.

The third question (if the previous question is decided in the negative) is whether on the determination of Justin's interest in possession of the settled property it will be held on trust for Mark absolutely or for the person who would be entitled to it if Christopher had died before that determination without leaving issue.

On Justin's death one must look to see whether there is anyone to take under clause 9 (b) of the will. There is Mark, so he takes. It would be capricious to attribute to the testator a desire to cut out Christopher's unborn sons and the court should strive to find an answer which is not so capricious.

Fearne on Contingent Remainders, 10th ed. (1844), vol. 1, pp. 252, 255n., contains statements which were correct till section 176 of the Law of

Property Act 1925 made it possible to bar an entail. See also Davidson's Precedents and Forms in Conveyancing, 3rd ed. (1880), vol. 4, pp. 287-289, particularly note (p) at pp. 288-289. For the situation after the Act, see Key and Elphinstone's Precedents in Conveyancing, 14th ed. (1940), vol. 2, p. 735, in particular note (k). If the words in this will are given their literal meaning, they cannot be explained away by the old rule in Fearne. If a tenant for life like Christopher does in fact have issue and that issue is alive there is no reason not to let him in.

The Court of Appeal were wrong in holding that the provision in clause 9 of the will that the enjoyment of any rentcharge previously appointed in favour of a wife of the forfeiting tenant for life is not to be accelerated is an indication that the testator intended the hypothetical death of a forfeiting tenant for life to have precisely the same consequences as would have ensued if he had been actually dead because (a) if the testator had so intended it would have been unnecessary for him to provide in clause 9 that all powers annexed to the estate of the forfeiting tenant for life shall cease to be exercisable and (b) the purpose of the provision is to limit the effect of the acceleration provision. It was not intended to, and does not, affect the identity of the person who is to take the jointure rentcharge.

If the tenant for life is to be treated as dead for all purposes, he cannot be put in at all. Once he is hypothetically dead for all purposes he cannot execute a deed. The last part of clause 9 strengthens the contention that acceleration and nothing else was being dealt with.

Chadwick following. In construing a will one must look at it as a whole in order to find the testator's intentions. From this will two clear intentions emerge: (1) that the principal estate should descend through the family of the testator's cousin Henry Wynter Blathwayt and (2) that the estate should not be enjoyed in possession by a Roman Catholic or a person who did not bear the name and arms of Blathwayt. On a forfeiture by any person in possession in giving effect to the second intention, the testator would not have wished that the primary intention should be abandoned; it was still to prevail.

This will is a lawyer drawn document based on precedents. It is probable that: (a) every expression in a clause is there for a specific purpose and is not mere repetition. (b) Every purpose for which the words are used is the result of some circumstances which the draftsman has foreseen and attempted to provide for, since that is the function of a draftsman. (c) The draftsman will have provided for similar consequences and the results will not be capricious; precedents are devised for rational testators.

Clause 9 has the specific purpose of bringing to an end the interest of a person who has suffered forfeiture; but the document does not say what is to happen after the interest has determined. The questions which it leaves unanswered are (1) who is to get the estate? (2) For what interest does he take? (3) When should his interest commence? (4) What happens if the person to take is not yet in existence?

When one reaches the end of the first provision one goes to the remainder of the clause expecting to find some clue. If nothing is said one must deduce it from the rest of the will. The estate is to go to the persons next entitled under the trusts hereinbefore declared. There is a clear indication

that the forfeiture is not setting up any new limitations but that one is going back to the scheme in clause 6.

Lambarde v. Peach, 4 Drew. 553, shows that there is no difficulty in holding that the person next entitled can be an unborn son. In this case Christopher's son would be the person next entitled, though he was not alive at the time of the forfeiture.

One is then faced with the question: What happens in the meantime? If one inserted some such words as "shall go in the same manner as if the previous estate had determined naturally," one would achieve what the draftsman had in mind. That tells you (a) what the person next entitled is to get and (b) when he is to get it. He is to get it as though the previous estate had determined through natural causes. The person who is to come in takes the estate he would have got if the previous estate had determined naturally and he gets it at once. The word "then" in clause 9 (b) adds nothing to the provision. It does not change the whole sense of the clause.

The acceleration provision is not a qualification on the identity of the person next entitled under the trusts. If one wanted to provide that the person next entitled should be determined on a hypothesis, the words "in the same manner" would be unnecessary. The phrase which starts with those words is not designed to indicate who the person next entitled is. The word "thereupon" means that the person next entitled gets the estate at once.

The effect of the order of Wynn-Parry J. was that it prevented Mark claiming the estate from Justin during Justin's lifetime and prevented Mark from contending against Justin that Justin's interest was determined by the birth of Mark. It also prevented Mark from contending against Linley or anyone in remainder after Linley that Justin's interest ought to have determined on Mark's birth. It is conclusive that Mark is not in possession of the estate: see Spencer Bower and Turner, Res Judicata, 2nd ed. (1969), p. 209 and Executor Trustee and Agency Co. of South Australia Ltd. v. Deputy Federal Commissioner of Taxes (South Australia) (1939) 62 C.L.R. 545, 562, 570. If it were suggested that Mark forfeited at birth, the person so contending would be faced with the order of Wynn-Parry J. keeping Mark out of possession.

As to the form of the shifting clause and acceleration provision ("were dead intestate" etc.) see Key and Elphinstone, 12th ed. (1927), the first after the legislation of 1925, vol. 2, p. 666, and 13th ed. (1932), vol. 2, p. 655, where the wording is the same. In the 14th ed., vol. 2, p. 735 there is the addition of note (k) explaining the use of the word "intestate" by reference to the power to bar the entail enacted in section 176 of the Law of Property Act 1925.

Godfrey Q.C. One must first construe clause 9 (b) of the will. (1) The words down to "determine and be utterly void" are a proviso for cesser and there is no doubt as to their meaning. (2) As to the following words, "the person next entitled under the trusts hereinbefore declared," they identify that person and he is Justin. (3) As to the following words down to "were then dead," they are to be taken literally.

Justin was the person next entitled because in the events which happened at the relevant moment he was the only person capable of taking. His interest was accelerated so as to exclude Mark. Mark is not to be identified

as the person next entitled, while Justin is entitled to the intermediate income.

One cannot speculate as to what a testator intended; one must look at what he said. There is nothing here to warrant doing violence to the words the testator used. There is a hypothesis of Christopher's artificial death. The estate is to go to the person next entitled "in the same manner" as if the person whose estate is determined "were then dead." The testator's own hypothesis is that the person is literally dead and incapable of having issue capable of taking. The nature of the problem is considered and a precedent is provided in Coke upon Littleton, 18th ed., vol. 2, Note II and II 2 to Book 3, c. 11, s. 597 by Charles Butler. But some testators do and others do not adopt the precedent in Butler's note, the present testator cannot have intended to let in Christopher's unborn children.

After the legislation of 1925 it still remained necessary for a testator to provide for contingencies which he might wish to be dealt with. The fact that by the express terms of this will the jointure rent charge was not accelerated indicates that the testator did not intend that consequence to follow, as it would otherwise have done, on the words "as if he were then dead." The purpose of including those words is to cut out the issue of the defaulter. In the model provisions in Butler's note there is a declaration "that the cesser or determination of the estate of the said A... by force of the proviso hereinbefore contained, shall not operate to exclude, prevent or prejudice, any of the contingent remainders...." But in the present case there is no such provision.

As to Doe d. Heneage v. Heneage, 4 Term Rep. 13, see Stanley v. Stanley, 16 Ves.Jun. 491, and Lambarde v. Peach, 4 Drew. 553, 572. There is here an intention that the estate shall go over as if the defaulter were actually dead. The testator was clearly aware of the technical implications of the words he used. At the start of clause 9 he refers expressly to a tenant in tail male by purchase, i.e., who was named in the grant itself. A defaulter might be found well down the line and it might be desired that the estate should go to the nearest cousin. When considering the limitations to be construed one should take into account the fact that the draftsman was applying his mind to the ends which the testator wished to achieve: see Davidson's Precedents and Forms in Conveyancing, 2nd ed. (1861), vol. 3, p. 286. As a matter of construction the effect of the forfeiture clause is to cut out Mark on the ground that, when the estate of Christopher determined, he must be deemed to be dead and that was at a time when Mark was not in esse.

If the respondents are held to be wrong on the point, the question of forfeiture by Mark must be considered. The only logical conclusion from the events which have happened is that Mark should have come in on his birth. In Chancery practice a girl of 16 and a boy of 14 are usually taken to have reached the age of discretion when they can choose their religion. If Mark was a Roman Catholic at 14 that was sufficient for the forfeiture to operate. One should look, not at the age when he is capable in law of exercising certain functions but at the age when he is sufficiently developed to make a decision, i.e., years of discretion. In some cases it might be a reasonable conclusion that the age of majority was the age for decision but one would have to look at the individual case. Here one does not know

what was said to Mark. The only question is: When was he of an age to decide whether to become or remain a Roman Catholic? The most reasonable period might be that consistent with the testator's intention and common human experience that a person can make up his mind as to his religion at his majority or soon after.

It is not right that Mark, being then of an age to decide and knowing the testator's intention that a Roman Catholic should not take should yet be in a position to frustrate that intention by disentailing. If he could make a settlement or disentail, he had the capacity to make an election as to his religion.

Assuming that Mark is liable to forfeit by becoming a Roman Catholic the question arises whether it is right to give that effect to the words of clause 9 or whether it should be struck out for uncertainty or on grounds of public policy.

As to uncertainty, it is suggested that a distinction may be drawn between a qualification, on the one hand, and a condition subsequent, on the other. The right test is to ask whether one can determine with reasonable certainty what is the event which forfeits the estate: In re Sandbrook [1912] 2 Ch. 471, 477. But there has been a divergence in the tests of certainty in the case of conditions precedent, on the one hand, and conditions subsequent, on the other. That divergence is undesirable and the test should be similar in both cases. In this the House of Lords is unfettered by authority. The right approach is that laid down in In re Baden's Deed Trusts [1971] A.C. 424, 456B-D. The whole position was reviewed in Church Property Trustees of the Diocese of Newcastle v. Ebbeck (1960) 104 C.L.R. 394, 401, 403, 404-405, which supports the proposition that the provision in the present case is not void for uncertainty, nor is the test it lays down uncertain. Reasonable certainty as to the instant when the condition comes into effect is much the same in the cases both of conditions precedent and conditions subsequent. There is no rational basis for distinguishing between them and the test in the case of each need not be different. Wemyss v. Wemyss's Trustees, 1921 S.C. 30, 41, 43 is prayed in aid. Falkiner v. Commissioner of Stamp Duties [1973] A.C. 565 does not assist nor does Bullock v. Downes (1860) 9 H.L.Cas. 1.

In the case of the expression "be or become a Roman Catholic" the difficulties are negligible. Reliance is placed on In re Balkind, decd. [1969] N.Z.L.R. 669, 670-671. As between conditions precedent and conditions subsequent, an unrealistic degree of precision should not be demanded in the one case and not in the other. The distinction is a blot on our jurisprudence and the House of Lords should put the law in order, giving effect to the wishes of testators in accordance with common sense.

Applying the relevant test ta the present case, here there is no uncertainty and Clayton v. Ramsden [1943] A.C. 320 is no direct or indirect authority for saying that the words "be or become a Roman Catholic" are too uncertain to be given effect to in the case of a condition subsequent. In some provisions there is a greater degree of certainty than in others. There is more certainty in the case of a Roman Catholic than a Jew. A Protestant falls between the two. The words in In re Wright (1937) 158 L.T. 368 were quite close to those in the present case. Reliance is placed on McCausland v. Young [1948] N.I. 72, 79, 90. 93; In re Morrison's

Will Trusts [1940] Ch. 102; In re Evans [1940] Ch. 629, 632-634 and Ex parte Dickson (1850) 1 Sim.N.S. 37. The expression "be or become a Roman Catholic" in a condition subsequent is not to be held void for uncertainty.

As to the broad ground of public policy, it is agreed that a parent must regard the welfare of his infant child as a first and paramount consideration. He must (a) consider in what faith he should be brought up and afford him such religious instruction as he thinks best and (b) promote his material benefit. He must weigh the relevant considerations. He should not be cynical like Henri Quatre when he said: "Paris vaut bien une Messe." One consideration which he would have to weigh would be that the boy, by being brought up in a certain faith, would come into a big estate. It would be a permissible view for a father to take that the child should be brought up a Protestant rather than lose the estate. There are many degrees of influence which may be brought to bear on a father in bringing up his child, some stronger, some weaker. The House should not adopt the principle enunciated in In re Sandbrook [1912] 2 Ch. 471, 476.

The appellant relied on In re May [1917] 2 Ch. 126. But see Talbot v. Earl of Shrewsbury (1840) 4 My. & Cr. 672 and what was said of In re May in argument in In re Borwick [1933] Ch. 657, 663. There is a conflict between the freedom of the testator to dispose of his property and the freedom of the testator to bring up his child as he wishes. But public policy is always about conflicts. One must consider the circumstances of the cases. A Jewish testator might wish his descendants to continue in the faith of his fathers. Or another testator might wish his descendants to become Scientologists. It is no worse to influence a father to bring up a child in a particular religion for wordly motives than to influence a young man to change his religion for the same motives: In re Tegg [1936] 2 All E.R. 878. This is an attempt to extend the bounds of public policy. They should not be carried beyond the bounds of In re May (No. 2) [1932] 1 Ch. 99 and In re Morrison's Will Trusts [1940] Ch. 102. The condition in question is not void on the grounds of public policy, since Mark was to make his choice on attaining his majority.

Elizabeth Gloster following. Two further questions remain: (1) whether Mark is estopped by the judgment of Wynn-Parry J. from asserting that on his birth his estate in tail vested in possession and (2) whether, if the House of Lords find in favour of the appellant on the construction of the will and on the estoppel point, then, in consequence of the judgment of wynn-parry J., Mark must be deemed not to have an estate on which the forfeiture clause could bite on the ground that he was not a tenant in tail in possession.

As to (1), Mark is not entitled to assert as against Linley and the remaindermen that his estate vested in possession on his birth. The matter is res judicata between the parties, including the remaindermen. So that Linley and the remaindermen can rely on res judicata it must be established (a) that the decision of Wynn-Parry J. involved a determination of the same question or questions as Mark seeks to have determined in the present proceedings and (b) that the remaindermen were parties to the proceedings before Wynn-Parry J. or were privies of the parties.

In the second proceedings issues determined between the parties in the first proceedings cannot be reopened. The fundamental question is whether

Linley and the remaindermen were indeed privies in the first proceedings. What the appellant Mark is here seeking to establish is that by reason of his birth on June 8, 1949, the interest of Justin in possession of the settled property was determined. That is equivalent to saying that on Christopher's forfeiture there was a suspension of the life interest, that Justin came in temporarily and that on Mark's birth his estate was divested. But Wynn-Parry J. clearly determined this question. He decided that on Christopher's forfeiture Justin took a life interest and that he was not divested of his estate on Mark's birth. It is accepted that Wynn-Parry J. did not decide the third issue, i.e., whether on the determination of the interest of Justin in possession the settled property will be held for Mark absolutely or for the persons who would have been entitled thereto if Christopher had died before that determination without having had issue. He expressly left open the question whether or not on the determination of Justin's interest the property would be held for Mark as remainderman. Mark is not entitled to say that at birth he should have got possession of the estate or that Justin never took an interest on the forfeiture of Christopher's estate. When Mark argues the third issue he must rely solely on the point of construction.

As to (2), the question arises who were privies to the parties in the proceedings before Wynn-Parry J. As to who are deemed privies, see Spencer Bower and Turner, Doctrine of Res Judicata, 2nd ed., pp. 209-210, paras. 241, 242, which shows that a broad meaning should be given to the concept of a privy.

Prima facie the trustees represent the beneficiaries in the action: see R.S.C., Ord. 15, rr. 13 14, with the note at p. 208 headed, "Trustees represent Absent Parties," and In re Brown's Will (1884) 27 Ch.D. 179, 186. In the proceedings in 1949 before Wynn-Parry J. counsel for the trustees took, on behalf of Justin, all the points which would affect the remaindermen behind him. In the then current Rules of the Supreme Court the relevant rule was Ord. 16, r. 8, in much the same terms as the present Ord. 15, r. 14, and the relevant note at p. 286 of the Annual Practice 1949 is similar to that in the later editions. In Ord. 16, r. 32, of the earlier rules there is provision for representation of persons or classes of persons in certain proceedings. Reliance is placed on Fussell v. Dowding (1884) 27 Ch.D. 237, 240. It was the duty of the trustees to take all points on behalf of every person interested. In a case where the trustees have no interest and where the remainderman is not yet born and the tenant for life is making a claim against the interest of the remainderman, the trustees could take the points in favour of the remainderman.

Alternatively, in the proceedings in 1949 the interests of Linley and the remaindermen were identical with those of Justin. They had the same interest to see that Justin's life estate was not divested by the birth of Mark. The interest of Justin's son, if he had had one, would have been the same as Justin's. Wynn-Parry J. decided that for the time being the estate had gone to Justin. That was to the advantage of the remaindermen coming in behind Justin. The fact that Justin was there was enough to bind the remaindermen coming behind: see Daniell's Chancery Practice, 8th ed. (1914), vol. 1, p. 171. There is no distinction between an action brought by an outsider and one dealing with the respective interests of the beneficiaries. See also Giffard v. Hort (1804) 1 Sch. & Lef. 386, 407-408. The submission that

the respondents were privies to Justin is based partly on this decision. The respondents as well as Justin were interested in the decision. In re Waring [1948] Ch. 221 is to be distinguished from the present case because its circumstances were quite different in that no one had the same interest in the same property.

In the present case the House of Lords should apply the principle of res judicata in a wide sense, as was recently done in Yat Tung Investment Co. Ltd. v. Dao Heng Bank Ltd. [1975] A.C. 581, 589-590. The doctrine of res judicata there laid down should be applied here. Henderson v. Henderson (1843) 3 Hare 100, cited in that case, was an instance of strict res judicata. See also In re Defries (1883) 48 L.T. 703, 704.

The House of Lords should not give Mark leave to appeal against the decision of Wynn-Parry J.: Lane v. Esdaile [1891] A.C. 210. Alternatively, if the House is entitled to give leave, it should not so exercise its discretion.

Alternatively, Mark, who, by purporting to disentail, approbated the decision of Wynn-Parry J., is not entitled to rely on that decision to say that at the date of the disentailing deed he was not entitled to possession of the estate. If the House were to decide that under the trust Mark was entitled at birth to an interest in possession, that would be declaratory of the rights of the parties, going back to Mark's birth; see Spencer Bower and Turner, Doctrine of Res Judicata, 2nd ed., pp. 58 - 59, para. 62. The House if it held that Mark had an interest in possession, would have to decide whether he forfeited it. On that basis Mark has been in possession all along. The fact that Justin has been enjoying the rents and profits is immaterial. The question is: Who is entitled to possession of the estate? The answer does not depend on finding the people who were actually enjoying possession. The fact that Justin was in possession does not alter the position either way. The Executor Trustee and Agency case, 62 C.L.R. 545, 562, does not really deal with the present situation and is distinguishable.

If the respondents were not privy to the decision of Wynn-Parry J. they are not bound by it if its effect is that Mark becomes entitled to the estate. A decision determining the rights of parties under a trust is not a decision in rem against all the world. No one was in a position to question the decision of Wynn-Parry J. in this respect.

Balcombe Q.C. in reply. On Christopher's forfeiture the principal estate was to go to the person next entitled, i.e., the first son of Christopher, when born. The only reason Justin got the income in the interval was because under In re Brooke [1923] 2 Ch. 265 and In re Conyngham [1921] 1 Ch. 491 it had to be decided what was to happen to the income pending the vesting of the estate in possession.

All the precedents in this sphere derive from Butler's note to Coke upon Littleton, already cited. It is the start of all the modern precedents on shifting clauses and the commentaries on them. A dead person cannot have children, but in this will there is an express provision to preserve contingent remainders. Moreover, it is clear that Butler, in using the hypothesis "as if he were dead," is not carrying it so far as to treat the defaulter as being incapable of having children. See also Vaizey on Settlements (1887), vol. II, pp. 1285-1290, 1296. Davidson's Precedents and Forms in Conveyancing, 3rd ed., vol. 4, pp. 465 et sea. follow Butler's

pattern. As to the shifting clause see p. 545. The precedent used in the present case presumably derives from Key and Elphinstone's Precedents in Conveyancing, 1st ed. (1878), vol. 2, pp. 1152-1153 (clause 17). See also clause 21 in the 12th ed. (1927), the first after the legislation of 1925, (vol. 2, pp. 664-666) and clause 21 in the 13th ed. (1932) the current edition when this will was made (vol. 2, pp. 653-656) and Prideaux's Precedents in Conveyancing, 22nd ed. (1926), vol. 3, pp. 795-797. Nobody draws a forfeiture name and arms clause so as to cut out the children of the tenant for life.

The precedents indicate: (1) In no case of a name and arms clause precedent is there an intention to cut out afterborn children of a defaulting tenant for life, despite the inevitable use of the phrase "as if he were dead." (2) In the present case of a professionally, though not perfectly, drawn will one cannot impute to the draftsman and, through him, the testator an intention to depart so radically and capriciously from a well trodden path in the absence of clear and express words. (3) One cannot infer, from the absence of an express provision to deal with the income during the gap period, an intention to alter the well settled rule relating to capital in a name and arms clause. One must construe the words actually used.

As to estoppel, it is not the appellant's case that Mark's estate vested in possession at the time of his birth. It should have been so vested but, because of the judgment of Wynn-Parry J. it did not. His order has never been reversed and would only be reversed if the House of Lords were to give leave to appeal and he was held to have been wrong. He was wrong for a reason connected with issue estoppel. His reason is inconsistent with the case which the appellant is now advancing.

Giffard v. Hort, 1 Sch. & Lef. 386, was relied on by the respondents but that case turns on the fact that in 1804 the legal estate in land could be less than a fee simple and if one brought an action the result of which would be to bind the land in the hands of subsequent owners, the question arose which legal owners must be joined. But that has nothing to do with the present case.

The respondents submitted that the trustees in general terms represented all persons who were not parties and referred to R.S.C., Ord. 15, rr. 13, 14, but those rules are not of general application. If they were, there would never be a need for a representation order. See also R.S.C., Ord. 85, rr. 2, 3. It is wrong to take a few words out of In re Brown's Will, 27 Ch.D. 179, and Fussell v. Dowding, 27 Ch.D. 237, and make a general rule out of them: see p. 182 of Brown and p. 240 of Fussell from which it appears that in that case the trustees were held properly to have represented the interests of the other beneficiaries. But in 1949 there was in the present case only a common form application by neutral trustees asking as between Justin and Mark, who was entitled to the income. No one then appreciated that the remainderman was in any way concerned. If it had been appreciated Linley would have been joined as a party to represent the persons coming behind Justin and Mark. Justin did not represent the interests of the remaindermen which were not identical with his own. His claim to the income did not concern them.

As to the cases cited for the respondents, In re Waring [1948] Ch. 221 was a sub silentio case: Yat Tung [1975] A.C. 581 was an attempt to litigate

a case twice over; In re Defries, 48 L.T. 703, raised the same point as the Executor and Trustees case, 62 C.L.R. 545, where a husband was under an order to make a settlement of property, which he could not gainsay; the case was not technically one of estoppel.

As to the technical consequences of the order of Wynn-Parry J., the appellant is not seeking to have it reversed; the House of Lords is only being asked to say that what he did, was done for the wrong reasons. One must not confuse what the appellant says should have happened with what did in fact happen. Mark was not entitled to the interest at birth: his entitlement depended on a relevant order of the court and until the order that was made is set aside it governs the entitlement.

Mark did not approbate the decision of Wynn-Parry J. An infant cannot effectively disentail: Megarry and Wade, The Law of Real Property, 4th ed., p. 99. Mark's action in disentailing was specifically related to the order of Wynn-Parry J. Apart from that decision Mark could always have avoided the consequence of forfeiture by disentailing.

The Executor Trustee and Agency case, 62 C.L.R. 545-560 is not distinguishable from the present case. If there is an order of the court determining the rights of the parties, then those are the rights of the parties. That case was cited in Spencer Bower and Turner, Res Judicata, 2nd ed., p. 209 in support of the proposition that the order of the court is as much a relevant fact as any other. The order of Wynn-Parry J. is a matter of fact.

Mark did not incur forfeiture under the forfeiture clause, which was void for uncertainty. If it be said that Mark was capable of becoming a Roman Catholic when he attained years of discretion, that date cannot be fixed and the uncertainty is fatal to the validity of the clause. If it be said that the relevant time is the attaining of his majority, then at that time he was free to avoid the dilemma by disentailing.

In re Baden's Deed Trusts [1971] A.C. 424 has nothing to do with the present case, nor has Wemyss v. Wemyss's Trustees, 1921 S.C. 30, because the law of Scotland is different from the law of England on this point. Reliance is placed on Clavering v. Ellison, 7 H.L.Cas. 707; Clayton v. Ramsden [1943] A.C. 320 and the Diocese of Newcastle case, 104 C.L.R. 394, 405, 411. In the condition precedent cases it can easily be said whether a person is a strict and observing Roman Catholic or a member of the Church of England. In condition subsequent cases it is harder.

The clause is also void as being contrary to public policy in seeking to influence a parent to bring up his child in a particular way. The court will not tolerate a situation which accentuates a parent's dilemma in deciding what is right for his child or which brings it to the forefront. It might be sought to impose other conditions, e.g., ruling out a particular public school. One cannot say that such a condition is always void. It might not be contrary to public policy if all the others were open. Public policy is always a matter of degree but the choice of religion is one of the most important decisions which a parent can make in regard to his child: see Talbot v. Earl of Shrewsbury, 4 My. & Cr. 672, 689.

Whether a forfeiture clause bites at birth or at majority, it imposes a fetter in either case. A condition may be against public policy because it fetters the parent's discretion in a fundamental matter, and religion is

fundamental. Some matters between parent and child are so fundamental that a condition which fetters the parent's discretion on them is void on grounds of public policy.

There is no divergence between In re May [1917] 2 Ch. 126 and In re May (No. 2) [1932] 1 Ch. 99, 102-104, 109 and In re Borwick [1933] Ch. 657. In the Court of Appeal In re May (No. 2) was not a decision on public policy.

Godfrey Q.C. as to the three works cited for the appellants in reply. As to Vaizey on Settlements, the present testator was not intending the usual result there described: see vol. II, pp. 1290, 1297. He intended to exclude the defaulter and his descendants. As to Key and Elphinstone's Precedents, 13th ed., vol. 2, pp. 653-656 the draftsman in the present case did not take his wording from there but followed Butler's form in Coke upon Littleton, 18th ed., vol. 2, Note II 2 to Book 3, c. 11, s. 597. In this will "then dead" means "actually dead." As to Prideaux's Precedents in Conveyancing,22nd ed., vol. 3, p. 796, the respondent's whole point is that the draftsman in the present case clearly and expressly departed from the well trodden paths because that was what the testator intended to do.

Their Lordships took time for consideration.

October 22. LORD WILBERFORCE. My Lords, this is an appeal, relating to the trusts of the will of Robert Wynter Blathwayt, from an order of the Court of Appeal affirming an order of Goulding J. There have been previous proceedings relating to this will in 1940, and again in 1949, which have added to the complications arising from the will itself. I shall first refer to the relevant provisions.

[His Lordship stated the facts and continued:]

My Lords: It is necessary to add three points at this stage. First, in the Court of Appeal, in case that court might consider itself precluded by the decision of Wynn-Parry J. from deciding in favour of Mark, leave was asked to appeal out of time against that decision. The Court of Appeal, on independent consideration, reached the conclusion that the decision was correct and, having done so, refused leave to appeal. Mark's application was renewed in his printed case before this House.

Second, in this House, leave was asked, on behalf of Mark, to appeal out of time against the decision of Farwell J. in 1940 that Christopher's life interest determined upon his reception into the Roman Catholic Church. In support of this it was pointed out that Mark was not a party to the 1940 summons and that no representation order was made by which he would be bound. Your Lordships however considered that this point could have been contested during or at any time after the 1949 proceedings; that the 1949 proceedings were conducted and decided on the basis that such determination had occurred; that over 20 years elapsed from the 1949 proceedings until the present action was commenced, during which time persons interested under the will must have assumed that the determination had occurred; that the present originating summons was issued upon the same assumption, and that no application was made for the point to be raised, nor was it raised either before Goulding J. or the Court of Appeal. It was

therefore announced to the parties during the hearing that your Lordships would not allow the point to be taken in this House at this stage.

Third, it was submitted by the respondents that Mark was estopped by the order of Wynn-Parry J. from arguing that upon his birth he became entitled under the trusts of the will to an entailed interest in the settled property. It was said that a decision to that effect would be inconsistent both with the order made by Wynn-Parry J. and with the terms of his judgment. For Mark it was contended that although he was a party to the 1949 proceedings, the remaindermen (represented by the present fifth respondent) were not: that estoppels must be mutual, and that since the remaindermen would not have been estopped by any order of Wynn-Parry J. as against Mark, conversely Mark is not estopped against them. In answer to this it was contended that the remaindermen would have been bound by any order against their interest in 1949 either because their interest was represented by the trustee, or because they should be regarded as "privies" of Justin who was a party in 1949.

My Lords, in my opinion this series of issues, which gave rise to some intricate arguments, must be resolved in favour of Mark. The general proposition that estoppels must be mutual is clear (vide Halsbury's Laws of England, 3rd ed., vol. 15 (1956), p. 201). I do not think that there is any doubt that Justin, as a party to the 1949 proceedings, was only concerned to represent, and to defend, his own particular interest (for his life or during Christopher's life) and not the interest of any remaindermen. The form of the questions submitted to the court, which I have already quoted, makes this clear. In no sense therefore could the remaindermen be said to be "privies" of Justin; his interest was not theirs: they could not succeed to that interest of his which was at issue in 1949.

I cannot, either, agree with the alternative argument that the interests of the remaindermen were represented by the trustees, attractively though this was put. It is true that in proceedings brought against a trust estate by a third person, or on behalf of a trust estate against a third person, the interests of beneficiaries under a trust can and normally ought to be represented by the trustees - this situation is procedurally regulated by R.S.C., Ord. 15, r. 14 (in 1949 by Ord. 16, r. 8). But when the proceedings are internal to the trust and concern the rights inter se of beneficiaries, the situation is different: beneficiaries represent their own interests or those which they are appointed by the court to represent: if trustees are to represent them, this must be made clear in the summons or at least in the order. This situation is procedurally regulated by Ord. 83, r. 3. In 1949, if it had been intended to call in question, or to bind, the remaindermen's interests, nothing would have been easier than for the fifth respondent, joined as a trustee, to have been made a defendant. This was not done, and, as I have pointed out, the originating summons was not framed so as to extend to any interest beyond that of Justin.

I am therefore of opinion that Mark is not estopped from claiming as against the remaindermen, after Justin, that, whether on his birth, or subject to Justin's interest, he became entitled to an entailed interest.

I can now deal with the substance of the appeal. It may be useful first to set out the various and successive points which Mark has to establish if he is to succeed.

1. He must show that, whether on birth, or upon the determination of Justin's interest (these are alternatives) he became entitled to an entailed interest in the settled estates. This involves his saying that the decision of Wynn-Parry J. in 1949 was wrong, as also were the decisions of Goulding J. and the Court of Appeal. It is a pure question of construction of the will.

2. If he succeeds in submission (1) he must then face the contention that his interest has been forfeited by reason of his adherence to the Roman Catholic Church. This he seeks to do in one of the following ways: (a) the clause directing forfeiture in this event is void, either for uncertainty or as contrary to public policy. No such contention has ever yet been put forward in any proceeding upon this will. (b) Alternatively, Mark was not, at the relevant time for considering whether the clause of forfeiture applied, a tenant "in tail in possession" as this clause requires. This paradoxical result is arrived at by the following reasoning: although upon birth Mark became entitled to an entailed interest, he was de facto kept out of it as regards possession by the decision of Wynn-Parry J. which though - on Mark's own submission ((i) above) - wrong, takes effect as a fact in the situation. In aid of this argument Mark did not pursue his application to appeal against Wynn-Parry J's. order, success in which would embarrass him. He merely said that he is not bound by it and that it is wrong. Finally, Mark having now disentailed, the forfeiture clause cannot operate. It is not unfair to say that by the effect of this convoluted submission Mark seeks to achieve a result directly contrary to the intention of the testator.

3. As an alternative to the above submissions, Mark contends that the settled property will be held upon trust for himself absolutely upon the determination of Justin's interest in possession. This means that upon forfeiture by Christopher the estate was shifted to Justin, but that on his interest coming to an end the limitations (viz. to Christopher's issue) may take effect. A submission to this effect is not necessarily inconsistent with the earlier decisions but it found no favour below. Nor, I should say at once, does it find favour with me; it is effectively negated by the argument on the main issue.

The main issue of construction ((1) above) turns upon the comparatively short clause 9 (b). I have to confess that I find it reasonably clear and in this I am in agreement with both courts below. It is articulated in two parts. First the life interest (in the case we are considering) is to cease and determine and be utterly void. With these words alone it would be clear that the following interests are accelerated, and in accordance with normal principle it might be the case that if, what would according to the trusts set out in clause 6, be the next interest, was not represented by anyone in existence, there would be a gap, or suspense of vesting, so that the income would have to be dealt with by accumulation, or by temporary payment to the next person in succession (cf. In re Conyngham [1921] 1 Ch. 491). But this possibility is unequivocally removed by the words which follow. The estate (i.e., the capital) is to go to (i.e., vest in) the person next entitled in the same manner as if the life tenant were then dead. To a layman there would seem to be no room for doubt that there is a complete and final passing to that person who would take if the life tenant were dead in 1939, i.e., to Justin as the next tenant for life. This seems the plain meaning of plain

words. Are there any solid arguments against giving the words this effect? First it is said that the use of the words "under the trusts hereinbefore declared" the shifting must be in favour of persons taking under the next limitation in clause 6 immediately following that which confers the forfeited interest, i.e., here, to the issue of Christopher. But to say this is artificially to divide the shifting clause into two parts: in fact there is one provision only - in favour of the person next entitled in the same manner as if the tenant for life is then dead. I do not see how these words can authorise retention of the estate in favour of a person who may become entitled during the life of the tenant for life. Then it is said that there is significance in the reference to a hypothetical absence of issue in the case of a tenant in tail and the absence of any such reference in the case of a tenant for life. The answer to this is that there was no occasion to presuppose absence of issue in the latter case: if there are issue they take, if there are not, the property goes to the next entitled. The reference to issue in the case of an entailed interest is needed in order to shift the whole of the entailed interest rather than only part of it. Thirdly, an argument is sought to be drawn from the final provision about powers. This, it is said, would be unnecessary if the tenant for life is supposed to be dead for the purpose of ascertaining who is entitled. But this is transparently fallacious. Under clause 6 (initial words) the estate is given (as is normal) "upon trusts and with and subject to the powers and provisions following" one of the powers being (clause 10) to appoint a jointure rentcharge to a wife. Clause 9 (b), in the first part, deals with the trusts on which the estate is to devolve. It would be an elementary blunder not to continue to deal specifically with the powers, and that is all that the latter words do. Finally, the clause is said to be capricious if it allows the estate to go to a child of the forfeiting tenant for life, if living at the time of forfeiture, but not to an afterborn child. My Lords, I agree with the judges below in their approach to this argument. Whether such a distinction was intended by the trustees or the draftsman is pure speculation; how can one say what the testator would have intended, as regards a child such as Mark who was born and brought up in the Roman Catholic Church or, it might be, with some other surname than Blathwayt, except by interpreting the words used? A will, which eliminates as this will does the issue of a forfeiting tenant in tail (existing or not), which distinguishes between a wife in whose favour there is a subsisting rentcharge and one in whose favour none has been appointed, shows, to my mind, that the only safe course is to follow out what has been said - certainly if it has been clearly said.

It was sought to escape from the consequences of this analysis by references to conveyancing precedents and your Lordships were referred to numerous editions of the works of such eminent craftsmen as Vaizey, Davidson and the successive editors of Key and Elphinstone's Precedents in Conveyancing and Prideaux, Precedents in Conveyancing. I would say of this process, as an aid to interpretation, that it is to be deprecated. It is one thing to appeal to the settled practice of conveyancers on some question of law - a course which has often been approved (see for example Clive v. Clive (1872) 7 Ch.App. 433, 437 per James L.J.). It is quite another to appeal to various drafts by persons, however eminent, as a guide to the construction of a clause not identical with any of them. Who

can say which precedent was used in this case - it may resemble one more than another, but what conclusion does that suggest? If one could identify the book which was used where would that lead one? From all the material which was read to us, there were, in my opinion, only two legitimate sources of enlightenment. The first lies in decided cases which may have been based on, or influenced, certain specific words: the second lies in the identification of certain problems which in the relevant area (here that of strict settlement) face the draftsman.

To take the second first. It has been apparent for some 150 years that draftsmen have had to ask themselves what is to happen if, when a shifting clause comes into operation, the next person to take, according to the limitations, is not in existence, and, as part of the same problem, what is to happen meanwhile to the income? If this was not realised before, it became crystal clear when Mr. Charles Butler produced his annotated edition of Coke upon Littleton. In the edition of 1823, Vol. 2 in Note II to section 597 this matter receives detailed treatment. "There are few occasions," says Mr. Butler, "where greater nicety, or skill, is required, in limiting uses of this kind, than in the two following cases...." The second case is that of a name and arms clause - which we have here. Mr. Butler draws attention to the necessity for providing in detail to whom the estate is to go on forfeiture, for whether the estate is to be preserved for persons not in esse, and for the interim destination of the income. In order to practise as well as preach, he even sets out in extenso a clause which he suggests covers everything.

The relevant portion of it repays attention (Note II 2). After the name and arms clause has been spelt out he continues,

"... the limitation hereinbefore contained of the said manors and other hereditaments, to the use of him or them so refusing, or neglecting, shall cease, determine, and become utterly void: and that the same manors, and other hereditaments shall, in such cases, immediately thereupon, devolve to the person next beneficially entitled in remainder, under the limitations hereinbefore contained, in the same manner, as if the person or persons whose estate shall so cease, determine, and become void, being tenant or tenants for life, was or were dead, or being tenant or tenants in tail, was or were dead without issue inheritable under such entail;... And it is hereby further agreed and declared between, and by, the parties to these presents, that the cesser or determination of the estate of the said A or of any other tenant for life, by force of the proviso hereinbefore contained, shall not operate to exclude, prevent, or prejudice, any of the contingent remainders hereinbefore limited to her, his, or their son or sons, daughter or daughters, or any other person or persons; but that the remainder limited to the said C and D and their heirs, during the life of the said A or such other tenant for life, shall, after such cesser or determination, take effect, and continue, for preserving such contingent remainders, and giving them effect as they may arise. And that immediately from and after such cesser or determination of such preceding estate for life, and during the suspense and contingency of such then expectant remainder, the said C and D their heirs and assigns, shall receive, pay

and apply the rents and profits of the said manors and other hereditaments, which would belong to such tenant for life, if such cesser or determination had not taken place, unto the person or persons, for the intents and purposes, and in the manner, to, for, and in which, the same rents and profits would be, or would have been payable and applicable respectively, under and by virtue of the limitations and provisoes hereinbefore contained, in case such tenant for life was actually dead; so that, immediately from and after such cesser or determination, the issue of the said A or of such other tenant for life, entitled for the time being, under the limitations aforesaid, to the said manors and other hereditaments, in remainder immediately expectant on the decease of the said A, or of such other tenant for life, may be entitled to the rents and profits of the said manor and other hereditaments, for his and their own proper use and benefit respectively, during the life of the parent, as if such parent were dead: and that in case no such issue shall be in existence, then, during the vacancy or contingency of such issue, the person next entitled, for the time being, under the limitations aforesaid, to a vested remainder in the said manors and other hereditaments, expectant on the decease of the said A or of such other tenant for life, and failure of such issue of her, or his body, shall and may be entitled to the said rents and profits for his and their proper use and benefit respectively, but without any exclusion of, or prejudice to the estate, interest, or right of any such issue, afterwards coming into existence, but only from the time of the birth of such issue respectively."

My Lords, if one eliminates the provisions as regards trustees for preserving contingent remainders, which in the modern law are unnecessary, here is a clause which clearly and explicitly provides for exactly those events which it is said are intended to be provided for here. Yet although in the present will we find initial dispositions corresponding - in fact almost verbatim - to the suggested draft, the later provisions for enabling after born issue to take and for disposing of the income are totally lacking. The problem is stated, it must have been appreciated: a solution is offered: it is not adopted, either in the words proposed or in any other words. What conclusion can be drawn other than that the testator or his professional adviser has chosen another course?

Then as to authority: the argument here overlaps because Mr. Butler cites and must have in mind some of the most relevant - Doe d. Heneage v. Heneage (1790) Term Rep. 13 and others. I shall refer to this case and to one other.

Doe d. Heneage v. Heneage was decided in the King's Bench on an ejectment action. It was a case where the particular life estate determined, on vesting of another family property, before the birth of issue to the tenant for life. Lord Kenyon C.J. in a brief and trenchant judgment found that the gift to trustees to preserve contingent remainders during the life of the tenant for life showed an intention that the estate should be preserved for the benefit of issue when born, and held that the trustees' interest continued notwithstanding that the life interest determined as if the tenant for life were dead.

The judgment of Kindersley V.-C. in Lambarde v. Peach (1859) 4 Drew. 553 contains an ample discussion of clauses similar to the present. In the will before him, the words "as if he were dead" occurred in the shifting clause but only in the clause providing for cesser of the life interest. They did not appear in the following provision which directed that the estate should go to the next in remainder. The Vice-Chancellor continues at p. 573:

"... the direction is that the estate is to cease as if he were dead, but not that the lands shall go over to the next in remainder as if he were dead. This appears to me to be a substantial and important distinction."

The opposite is of course the case in the present will and there can surely be no doubt that Kindersley V.-C. would have interpreted the present will as I would do.

"Why" he asks, "are we to construe this latter branch as if the testator had said that the lands shall go over to the person next entitled in remainder as if the party were dead, when in truth he had said no such thing?" (p. 574)

Here he has said just this. That an intention to pass the estate direct to the "next entitled" without holding it for the benefit of contingent remaindermen is nothing extraordinary, or outrageous is exemplified by Carr v. Earl of Erroll (1805) 6 East 58: see also Stanley v. Stanley (1809) 16 Ves.Jun. 491, where also the omission of such words as "as if he were dead" was considered decisive.

Of the two possible results in these cases, viz., (a) that contingent remainders are to be respected or (b) that they are to be passed over in favour of the existing person first next in line, which is correct is a question of intention, and even if one accepts that the court is ready to find in favour of the former, and perhaps to strain words to do so, the words used in the present case, in my opinion, are too clear to admit that any such intention exists.

I am therefore in agreement with the Court of Appeal and Goulding J. on this point, and so I would dismiss the appeal.

On this view of the matter, no further points arise, but since your Lordships take a different view, I may briefly express my opinion upon them - at least such as may be of general application apart from the present will.

1. On the question whether the forfeiture clause, in so far as it relates to being or becoming a Roman Catholic is void for uncertainty. I am clearly of opinion that it is not. Clauses relating in one way or another to the Roman Catholic Church, or faith, have been known and recognised for too many years both in Acts of Parliament (e.g., the Bill of Rights and the Act of Settlement ("Popish religion") and Roman Catholic Relief Acts of 1791 and 1829) and in wills and settlements for it now to be possible to avoid them on this ground. I am of course aware that the present clause is a condition subsequent (or resolutive condition) and I need not quarrel with the accepted doctrine of English law derived from Lord Cranworth's words in Clavering v. Ellison (1859) 7 H.L.Cas. 707, 725 which requires a greater degree of certainty in advance as to the scope of such conditions than is

needed when the condition is precedent (or suspensive). I can respect this distinction for the purposes of this case without renouncing the right, which I conceive judges have, to judge the degree of certainty with some measure of common sense and knowledge and without excessive astuteness to discover ambiguities. The decisions which have been given, in relation to clauses as to Roman Catholicism, as well as those in which such clauses have passed scrutiny sub silentio, are, with rare exception, one way. They include: In re May [1917] 2 Ch. 126; In re May (No. 2) [1932] 1 Ch. 99; In re Wright (1937) 158 L.T. 368; In re Morrison's Will Trusts [1940] Ch. 102; In re Evans [1940] Ch. 629; In re McKenna [1947] I.R. 277; McCausland v. Young [1948] N.I. 72; [1949] N.I. 49. A decision the other way is In re Borwick [1933] Ch. 657, but there the condition was composite: "be or become a Roman Catholic or not be openly or avowedly Protestant." The balance of authority is strongly in favour of validity and the contrary would be barely arguable but for the views expressed in this House in Clayton v. Ramsden [1943] A.C. 320. The condition there was composite "not of Jewish parentage and of the Jewish faith." It was held by all members of the House that the first limb (and therefore on this ground the whole condition) was void for uncertainty nd by four of their Lordships that the second limb was void on the same ground. Lord Wright took the opposite view on the second limb, as had Lord Greene M.R. delivering the judgment of the Court of Appeal.

My Lords, I have no wish to whittle away decisions of this House by fine distinctions; but accepting, as I fully do, the opinions of the majority of their Lordships as regards the religious part of this condition, I do not consider myself obliged, or, indeed justified, in extending the conclusion there reached, as to uncertainty, to other clauses relating to other religions or branches of religions. The judgment of Lord Greene M.R. in the Court of Appeal (sub nom. In re Samuel [1942] Ch. 1) contains a very full account of decisions relating to the Roman Catholic faith, to the Protestant religion and the Church of England (amongst which he cited Clavering v. Ellison, 7 H.L.Cas. 707, and to which could be added the Church Property Trustees of the Diocese of Newcastle v. Ebbeck (1960) 104 C.L.R. 394) and the Lutheran religion (Patton v. Toronto General Trusts Corporation [1930] A.C. 629). All of these cases must, from a reading of that judgment, and from their Lordships' own experience, have been present to their minds. The absence of any reference to them in the speeches in this House refutes any suggestion that a new general principle was being laid down as to the invalidity on ground of uncertainty of all subsequent conditions whatsoever relating to all varieties of religious belief. It confirms that the decision in Clayton v. Ramsden [1943] A.C. 320 was a particular decision on a condition expressed in a particular way about one kind of religious belief or profession. I do not think it right to apply it to Roman Catholicism.

2. Finally, as to public policy. The argument under this heading was put in two alternative ways. First, it was said that the law of England was now set against discrimination on a number of grounds including religious grounds, and appeal was made to the Race Relations Act 1968 which does not refer to religion and to the European Convention of Human Rights of

1950 which refers to freedom of religion and to enjoyment of that freedom and other freedoms without discrimination on ground of religion. My Lords, I do not doubt that conceptions of public policy should move with the times and that widely accepted treaties and statutes may point the direction in which such conceptions, as applied by the courts, ought to move. It may well be that conditions such as this are, or at least are becoming, inconsistent with standards now widely accepted. But acceptance of this does not persuade me that we are justified, particularly in relation to a will which came into effect as long ago as 1936 and which has twice been the subject of judicial consideration, in introducing for the first time a rule of law which would go far beyond the mere avoidance of discrimination on religious grounds. To do so would bring about a substantial reduction of another freedom, firmly rooted in our law, namely that of testamentary disposition. Discrimination is not the same thing as choice: it operates over a larger and less personal area, and neither by express provision nor by implication has private selection yet become a matter of public policy.

The other and narrower branch of the argument is that first given modern currency by Parker J. in In re Sandbrook [1912] 2 Ch. 471, 477. A condition "is bad which operates to restrain or forbid a man from doing his duty." This principle was applied to a condition applicable to a child during infancy, forfeiting his interest if he should "be or become a Roman Catholic or not be openly or avowedly Protestant" (In re Borwick [1933] Ch. 659). On the other hand, In re May (No. 2) [1932] Ch. 99 an argument that the condition was void as against public policy, though put forward at first instance, was abandoned before the Court of Appeal and in In re Morrison's Will Trusts [1940] Ch. 102, a case concerned with the mother of Christopher and Justin Blathwayt, no contention based on public policy seems to have been raised and Bennett J., who decided In re Borwick, held that the condition operated.

My Lords, the force of the observations of Parker J. in In re Sandbrook, in relation to conditions applying to infants, may well be appreciated but is diminished to some extent at least by the doctrine evolved by the courts that, where an infant is involved, the time for choice as to compliance or non-compliance with the condition must be postponed until majority and a reasonable time thereafter (see In re May [1917] 2 Ch. 126 and (No. 2) [1932] 1 Ch. 99). In view of this sensible mitigation of the condition, I do not find myself able to discern a rule of public policy sufficiently clear and definite for total invalidation of conditions of the kind now in question. To say that any condition which in any way might affect or influence the way in which a child is brought up, or in which parental duties are exercised, seems to me to state far too wide a rule. And even if the rule were confined to religious upbringing, I am unpersuaded that, in relation to landed estates in which family attitudes and traditions may be strong and valued by testators, and moreover which may often involve close association with one or another Church, public policy requires that testators may not prefer one branch of the family to another upon religious grounds. Certainly I should need much more concrete and positive reasons bearing upon the particular gift in question before I felt justified in nullifying the condition the testator has chosen to attach. After all, a choice between

considerations of material prosperity and spiritual welfare has to be made by many parents for their children - and, one may add, by judges in infants' interests - and it would be cynical to assume that these cannot be conscientiously and rightly made. I find reassurance in the case of Talbot v. Earl of Shrewsbury (1840) 4 My. & Cr. 672 and in the whole discussion by Lord Cottenham L.C. I would therefore reject all the appellant's arguments against the validity of the condition.

My Lords, for the reasons I stated earlier I would dismiss this appeal.

LORD SIMON OF GLAISDALE. My Lords, on all the points dealt with in his speech, save as to the principal issue of construction, I agree with my noble and learned friend, Lord Wilberforce. In particular, I agree with what he has said about public policy as applied by the law to a religious forfeiture clause such as your Lordships are concerned with. The actual personal circumstances can differ so greatly in these matters from case to case that it is difficult to apply a general rule of public policy which is not either practically unreal in many cases or open to some logical objection. Creed or religious observance or sectarian adherence cannot be isolated from other human activities or ideologies. "Attempt to rule the living from the grave" is a vivid phrase apt to cause revulsion from the conduct referred to: but it is difficult to see why, if public policy is invoked, a particular disposition should be more objectionable if made by will than if made inter vivos. Moreover, it would appear that the policy of English law is to allow a testator considerable freedom in the way in which he disposes of his estate: modern English law knows nothing (apart from taxation and discretionary intervention under the Inheritance (Family Provision) legislation) of a part of a deceased's estate reserved from his disposition. Balancing these various matters, I agree with my noble and learned friend, Lord Wilberforce, that in these days society's interest in a parent's conscientious choice as to what influence should be brought to bear on his own child during minority is sufficiently vindicated by the rule that a forfeiture clause shall not operate till after the lapse of a reasonable period after the child reaches the age of majority. This also accords with the contemporary view that it is for a youth himself to take the crucial decision on such a matter. He cannot hope to do so emancipated from conflicting influences and interests.

I must not be taken thereby to be implying that it is for courts of law to embark on an independent and unfettered appraisal of what they think is required by public policy on any issue. Courts are concerned with public policy only in so far as it has been manifested by parliamentary sanction or embodied in rules of law having binding judicial force. As to such rules of law your Lordships have the same power to declare, to bind and to loose as in regard to any other judicial precedent. Rules of law expressing principles of public policy therefore fall to be treated with the same respect and circumspection, the same common sense and regard to changing circumstances, as any other rules of law. So approaching the authorities expressing public policy with regard to forfeiture clauses - specifically those relating to religious and other ideologies - I agree that the law is as stated by my noble and learned friend, Lord Wilberforce.

This issue arises for decision by me because on the main question - the

construction of clause 9 of the will - I agree with my noble and learned friend, Lord Cross of Chelsea. The two matters that strike me most forcibly in arriving at this concurrence are, first, that the will is obviously drawn by a knowledgeable conveyancer and, secondly, that the same provisions govern forfeiture in relation to both religion and name and arms. The fact that the will was professionally drawn by someone who must have been conversant with the works of authority on conveyancing convinces me that the various contingencies which might arise would have been envisaged - in particular, that a son, such as Mark, might be born to Christopher after Christopher's forfeiture; and, indeed, that Mark might have had an elder brother born to Christopher immediately before forfeiture. Moreover, it involves more than ordinary significance being ascribable to the repercussions of the rival constructions in weighing the validity of those constructions. And the fact that the provisions for forfeiture are identical in relation to religion and to name and arms enables one to probe the testator's intention by reference to the less emotive name and arms provisions and apply them to the religious forfeiture provisions.

On this basis may I take the following hypotheses? A distant cousin, Sir Prosper Deleveque, leaves Christopher a life interest in the enormous Deleveque estate (ten times the value of the Blathwayt estate) on condition that Christopher takes the name and arms of Deleveque. Christopher does so, and thereby forfeits his interest in the Blathwayt estate. At the time of the forfeiture Christopher has a six month old child, Matthew. Twelve months after the forfeiture Mark is born. Both Matthew and Mark continue to bear the name and arms of Blathwayt. There can be no question but that, under the Blathwayt will, Matthew becomes next entitled on Christopher's forfeiture. Is it really credible that the Blathwayt testator intended to cut out Mark should Matthew die without issue during Mark's lifetime, because what he has said means that Christopher must be taken to have died at the time of the forfeiture and was therefore incapable of having a child twelve months later? My noble and learned friend, Lord Cross of Chelsea, has shown that so extraordinary an intention need not - indeed, should not - be ascribed to the testator.

But the fantastically and insensately capricious implications of the respondents' construction do not even stop there. Mark might have been born not ten years, not twelve months, but six months after Christopher's forfeiture; and a dead man can have issue six months after his death. So that, on the respondents' construction, whether a son of Christopher's was cut out of the line of succession designated by clause 6 would not even depend on whether he was born before or after Christopher's forfeiture, but on how soon he was born after the forfeiture.

For the foregoing reasons, which merely embroider those of my noble and learned friend, Lord Cross of Chelsea, I would allow the appeal.

LORD CROSS OF CHELSEA. My Lords, the facts of this case are stated in the speech of my noble and learned friend Lord Wilberforce, which I have had the advantage of reading. As I agree with him on all the points with which he deals save only the question of the construction of clause 9 of the will of the testator I will deal with the other points very briefly.

The summons issued by the trustees of the will on February 23, 1940,

asked two questions - first, whether Christopher forfeited his life interest in the property settled by the will on being received into the Roman Catholic Church on November 10, 1939, and, secondly, if the answer to the first question was "Yes," how the trustees were to deal with the income of the property pending the birth of a son to Christopher. I do not suppose that the legal advisers of the family at that time expected the first question to be answered otherwise than as Farwell J. answered it - that is to say in the affirmative: for before the decision of this House in Clayton v. Ramsden [1943] A.C. 320 few if any Chancery practitioners would have thought it seriously arguable that a condition subsequent forfeiting a life interest on the life tenant becoming a Roman Catholic was void. The decision in Clayton v Ramsden turned primarily on a condition for forfeiture on the beneficiary marrying a person "not of Jewish parentage" but four of the members of the House expressed the view that a condition against marriage with a person "not of the Jewish faith" was also void for uncertainty. If that be so then it is certainly arguable that a condition for forfeiture on the beneficiary becoming a Roman Catholic is void. That point was not however taken on behalf of Mark on the hearing of the summons taken out after his birth in 1949. That proceeded on the footing that Christopher forfeited his life interest in 1939 and that the only point to be determined was whether the interest in the income to which Justin then became entitled in possession had come to an end on Mark's birth. Your Lordships refused Mark leave to raise the issue of Christopher's forfeiture on this appeal; but the question whether the condition is or is not void emerges again in its application to Mark's estate tail. In agreement, I believe, with all your Lordships, I am clearly of opinion that the condition was not and is not void either for uncertainty or, as applied to a person of full age at the date of the will, on grounds of public policy. I accept, of course, that by the law of England a stricter test of certainty is applied to a condition subsequent than to a condition precedent but I agree with the judges both in the Irish Republic and in Northern Ireland that it would be an affront to common sense to hold that a condition for forfeiture if the beneficiary should become a Roman Catholic is open to objection on the ground of uncertainty: see In re McKenna [1947] I.R. 277 and McCausland v. Young [1948] N.I. 72; [1949] N.I. 49. If I had been a member of the House which heard Clayton v. Ramsden, I might well have agreed with Lord Wright that a condition for forfeiture on marriage with a person "not of the Jewish faith" was valid. But it is a vaguer conception than being or not being a Roman Catholic and acceptance of the view of the majority does not involve the consequence that a condition of forfeiture on becoming a Roman Catholic is open to objection on the score of uncertainty. Turning to the question of public policy, it is true that it is widely thought nowadays that it is wrong for a government to treat some of its citizens less favourably than others because of differences in their religious beliefs; but it does not follow from that that it is against public policy for an adherent of one religion to distinguish in disposing of his property between adherents of his faith and those of another. So to hold would amount to saying that though it is in order for a man to have a mild preference for one religion as opposed to another it is disreputable for him to be convinced of the

importance of holding true religious beliefs and of the fact that his religious beliefs are the true ones.

Mark did not appeal against the decision of Wynn-Parry J. (In re Blathwayt's Will Trusts [1950] 1 All E.R. 582 that Justin's life interest did not determine on his birth and that decision is undoubtedly binding on Mark as against Justin; but the respondents contended that Mark was also estopped by the order of Wynn-Parry J. from asserting as against those entitled in remainder after Justin's death that Wynn-Parry J. misconstrued the will of the testator. If that is so then, as estoppels must be mutual, it must follow that had Wynn-Parry J. held in favour of Mark that Justin's life interest determined on his birth the remaindermen would have been estopped from contending that he had misconstrued the will and that they would become entitled to the property after Justin's death. Despite the able argument of junior counsel for the respondents, I do not think that an order in favour of Mark made in proceedings to which the remaindermen were not parties and in which no representation order was made could have bound them. They were not "privies" of Justin and, although, if there is no party to argue some point, the court may allow it to be argued by the trustees on behalf of absent parties, it is clear that in this case the trustees were playing their usual neutral role and simply asking the court to decide as between Mark and Justin whether Justin's interest in the income had determined.

So the question arises whether, on the true construction of the will of the testator, Mark, having been born after his father forfeited his life interest, took no interest in the settled property under the trusts declared by clause 6. Goulding J., the Court of Appeal, and, finally, my noble and learned friend, Lord Wilberforce, have all said that he took no interest and in these circumstances it is only with great diffidence that I venture to advance the contrary opinion. When one has a series of limitations such as those contained in clause 6 of the will of the testator - to A for life with remainder to his first and other sons successively in order of seniority in tail male with remainder to B for life with remainder to his first and other sons successively in order of seniority in tail male with remainder to C for life with remainder, etc. - and one of the life estates determines prematurely, then, in the absence of any contrary intention shown in the instrument, two results follow (a) that there is no gap in the limitations during the rest of the life of the life tenant in question but the subsequent limitations are accelerated and (b) that, if at the date of the determination of the life estate in question the life tenant has no issue living to take under the estates tail to his sons, the next life interest will take effect in possession subject to defeasance in favour of a son of the life tenant born after the date of the determination of his life interest: see In re Conyngham [1921] 1 Ch. 491. Counsel for the respondents accepted that had Christopher's life interest determined for some reason other than forfeiture under the provisions of clause 9 - for example by disclaimer or his having witnessed the will - the life interest taken by Justin in possession would have ceased on Mark's birth and that the same result would have ensued if clause 9 had ended with the words "the estate hereby limited to him shall cease, determine and be utterly void." It is said, however, that the rest of clause 9 - the so-called "shifting provision" - shows that what I have called the second

result of the general rule does not apply here and that though the subsequent interests were accelerated the life interest to which Justin then became entitled in possession was not liable to defeasance on the subsequent birth of a son to Christopher. The words in question run as follows:

"and my principal estate shall thereupon go to the person next entitled under the trusts hereinbefore declared in the same manner as if the person whose estate shall so cease determine and become void being a tenant for life were then dead or being a tenant in tail male were then dead without issue inheritable under the estate tail and so that in the case of a tenant for life all powers annexed to his estate shall cease to be exercisable and that the enjoyment of any jointure rentcharge previously appointed by such person in favour of his wife under the power hereinafter contained shall not be accelerated."

On Christopher's forfeiture - so the argument runs - the person next entitled was Justin and since the property was then to go to him "in the same manner as if Christopher were then dead," his life interest did not determine on Mark's birth since, if Christopher had died when he became a Roman Catholic, Mark would never have been born. Now if that be indeed the effect of the clause, I am sure that it was not an effect intended by the testator or his draftsman. When a settlor provides for the forfeiture of a life interest on the life tenant doing or failing to do some act then, as the old conveyancers point out, it is not generally his intention that the life tenant's issue shall be prejudiced by the non-compliance of their parent with the condition in question (see e.g. Butler's Note II 2 to section 597 of Coke upon Littleton and Vaizey on Settlements (1887) Vol. II, p. 1288). Nevertheless one can without much difficulty, imagine a settlor or testator deliberately providing that failure by a parent to comply with a condition should forfeit not only his life interest but also the estates in remainder of his issue since he might think that so to provide would afford an added inducement to the parent to comply with the condition. But what is to my mind inconceivable is that a settlor or testator should deliberately provide that failure by the parent to comply with a condition should not forfeit the interests in remainder of his children living at the date of forfeiture but should forfeit the interests of after born children. Suppose, for example, that Christopher had forfeited his life estate by ceasing to use the name and arms of Blathwayt - in compliance, perhaps, with a condition in some other will - that he already had a son X and that Mark was born after the date of forfeiture. Suppose, further, that the two boys grew up with the full intention of using the old family name - without maybe any objection from their father - but that X dies before attaining the age of 21, then if the clause means what the respondent says it means the estate which was being held on trust for X would pass on his death to Justin, and Mark who was in the same position as X, save that he was born after his father changed his name, would be cut out. I cannot believe that any draftsman would use words which he realised might have that effect without express instructions from the testator and I cannot imagine any testator giving such instructions. That, of course, is not in itself an answer to the respondents' argument for one cannot rectify a will by reference to the instructions given

to counsel or the notes on counsel's draft. If the testator has said something clearly and unambiguously, one must give effect to it even though one may strongly suspect that he did not mean to say it. But the improbability of the testator having meant to draw a distinction between sons born before and sons born after a forfeiture of his life interest by their parent is at least a ground for looking at the language used very carefully to make sure that it does indeed clearly and unambiguously say what it is said to say. Now if I examine the language of the "shifting provision" I am struck by two things. The first is that, whereas the testator took pains to spell out the results of the hypothetical death of the forfeiting life tenant as regards his wife, he took no such pains as regards his after born sons. With regard to a wife, he says that the forfeiting life tenant is to be considered as having died at the date of forfeiture so far as concerns any subsequent exercise of the power to jointure but is not to be considered as being actually dead so as to entitle his wife to claim a jointure already appointed to her as though she had become his widow. One would have thought that had the testator meant that a forfeiting life tenant was to be considered as being actually dead so as to be incapable of having sons who could take under the limitations in clause 6 he would have said so expressly and not left that consequence to be inferred from the words "in the same manner as if the life tenant were then dead." The second point which strikes me is that the words "my principal estate shall thereupon go to the person next entitled under the trusts hereinbefore declared," in the same manner as if the life tenant was then dead, are on any footing in need of some explanation or expansion. In the event which happened of Christopher having had no son before he forfeited his life interest, it is easy enough to say that Justin is the person next entitled and that there is nothing in the clause to carry the estate back to Mark. Suppose, however, that - as in the example which I gave above - Christopher had had a son X born before his forfeiture and a second son, Mark, born afterwards. Then the estate on Christopher's forfeiture would have gone to X as the person next entitled in the same manner as if Christopher was then dead and, if X died later before disentailing, Mark could have argued that there was nothing left in the clause to carry the estate on to Justin over his head in defiance of clause 6. No doubt Justin would have countered this argument by saying that the clause should be read as saying that after the forfeiture the estate should be held on trust for the persons who would have become successively entitled to it from time to time if the life tenant had died at the moment of forfeiture. But the fact that the vital part of the clause must be regarded on any footing as "shorthand" makes it easier to say that the "shifting provision" does no more than say that there is to be no gap but that subsequent interests are to be accelerated notwithstanding that the life tenant is still alive. This view of the "shifting provision" gains some support from its provenance. In his note mentioned above Butler gave a precedent of a name and arms clause which appears to have been the ancestral model of all or most of the various precedents in use in the last 150 years. After providing that on failure to comply with the condition the estate of the life tenant shall "cease determine and become utterly void," the precedent continues:

"and that the same manors, and other hereditaments shall, in such

cases, immediately thereupon, devolve to the person next beneficially entitled in remainder, under the limitations hereinbefore contained, in the same manner as if the person or persons whose estate shall so cease, determine and become void, being tenant or tenants for life, was or were dead, or being tenant or tenants in tail, was or were dead without issue inheritable under such entail."

The "shifting provision" in clause 9 is so far - apart from the insertion of the word "then" before "dead" which does not really add anything - substantially identical with Butler's form. Butler, however, goes on to provide that as from the date of forfeiture of the life interest the trustees, to preserve contingent remainders, shall during the rest of the life tenant's life pay the income of the property to the person who would from time to time be entitled to it if the life tenant were actually dead so that while no issue of the tenant for life is in existence the income shall go to the person next entitled but that on birth of issue it shall go to the issue. If one reads the opening passage of Butler's shifting provision quoted above in the light of the subsequent provisions, it is clear that it does no more than say in general terms that the forfeiture is not to cause any gap but that the subsequent remainders are to be accelerated. In the form used in this will, however - which does not apparently figure in any published collection of precedents - the first part of Butler's "shifting provision" appears without the later part which spells out its meaning. It may be that its author left out the later part because there was no longer any need of trustees to preserve contingent remainders, failing to observe that the first part standing alone might be construed as cutting out after born children. But, however that may be, I think that the fact that the clause obviously derives from Butler, and that as used by him it was simply intended to state that the remainders should be accelerated, affords some support for so construing it in this will even though there is here nothing corresponding to the directions to the trustees as to the disposal of the income during the remainder and the life tenant's life. Further, I find some support for construing clause 9 in this way which I favour in the case of Doe d. Heneage v. Heneage, 4 Term Rep. 13, to which my noble and learned friend, Lord Wilberforce, refers. In that case the testator devised the property in question to his son G. F. Heneage for life with remainder to trustees during the life of G. F. Heneage to preserve contingent remainders with remainder to the first and other sons of G. F. Heneage successively in tail male with remainders over. The will contained a proviso in the following terms:

"Provided always, and my will is expressly, that in case it shall happen that my said son G. F. Heneage, or any son or sons of his, to whom the said manors, &c thereinbefore mentioned are limited as aforesaid, shall ever inherit or take by descent, or by any gift, grant, or devise, or otherwise become seised in possession for his or their life or lives, or for any greater estate, of the whole or so much of the real estate of my said brother George Heneage as shall exceed the yearly value of the estate by this my will limited in use to him and them by 100 l. by the year, that then and from such time as my said son G. F. Heneage, or any son or sons of his shall so inherit, or take by descent, gift, grant, or devise, or otherwise become seised in possession

of such or so much of the said real estate of my said brother George Heneage as aforesaid, for the term of his or their natural life or lives, or of any greater estate, all and every the use and uses, limitations and estates, hereinbefore created and declared of and concerning the said manors, &c. hereinbefore mentioned, to and for or in favour of my said son G. F. Heneage, or any son or sons of his so coming into possession of such and so much of my said brother's estates as aforesaid, shall cease, determine, and be utterly void: And in such case my will and meaning is, that the next in remainder according to the uses of this my will shall succeed to and have and enjoy my said estate hereby devised, as if my said son G. F. Heneage, or any such son or sons of his, was or were respectively dead; any thing hereinbefore contained to the contrary thereof in anywise notwithstanding."

The testator's brother devised real estate of a value in excess of £100 a year to his nephew G. F. Heneage for life with remainder to his first and other sons successively in tail male. At the date of his uncle's death G. F. Heneage had no sons but later two sons were born to him. The question at issue was whether upon G. F. Heneage becoming entitled in possession to a life estate in his uncle's lands the property devised by his father's will did or did not go to the trustees to preserve contingent remainders. If it did not the contingent remainders to his sons who were unborn were destroyed. If it did his sons became on their births successive tenants in tail male in remainder. The main argument against the property going to the trustees to preserve contingent remainders was, of course, that the shifting clause said that on the life estate of G. F. Heneage determining on his succeeding to the lands devised to him for life by his uncle the testator's property was to go to the next in remainder as if G. F. Heneage were dead. Obviously if G. F. Heneage were dead the estate granted to trustees to preserve contingent remainders which was only for the life of G. F. Heneage would never have taken effect. Nevertheless the Court of King's Bench held that the will showed a clear intention that the testator's property should go to the first and other sons of G. F. Heneage if he had any and that the estate limited to the trustees to preserve contingent remainders took effect in order that that purpose might be achieved notwithstanding the words "as if my son G. F. Heneage were dead." It is true that in the case of Lambarde v. Peach, 4 Drew. 557 to which my noble and learned friend also refers Kindersley V.-C. described Doe d. Heneage v. Heneage as a "strong case" and pointed out that in the case before him it was much easier to give effect to the testator's intention because the words "as if he were dead" occurred in the part of the clause which provided for the cesser of the life estate and not in the part which provided what was to happen to the property after the cesser of the life estate: but he treated Doe d. Heneage v. Heneage as a subsisting authority which, though commented on, had never been overruled and added, at p. 574:

"And even if Doe v. Heneage had been actually overruled (which it never has been) it would not cease to be deserving of notice as showing how strong is the disposition of a court of justice to get over difficulties in order to give effect to the testator's intention that the estate

should go to the unborn son of the party whose estate is to cease and determine."

How one construes clause 9 of this will must depend to a great extent on how sure one feels that the testator cannot have meant to draw a distinction between sons born before and sons born after the act of forfeiture. If I thought, as the courts below thought and my noble and learned friend thinks, that it is pure speculation whether or not he intended or, if he had thought about it, would have intended to draw such a distinction then I would construe the clause as they do. But, as I cannot believe that the testator would have intended to draw the distinction, I think that for the reasons which I have attempted to give I am justified in construing it so as not to prevent Mark from taking an estate tail in possession on his birth.

If Wynn-Parry J. had held that Justin's life interest determined on Mark's birth and that Mark became at birth entitled to an entailed interest in possession, it is clear that Mark's baptism as a Roman Catholic would not have forfeited his interest. The question whether or not Mark forfeited his interest by reason of his religious beliefs would not have arisen until he came of age - in his case until January 1, 1970 - and so was in the eyes of the law able to make up his mind whether or not to remain a Roman Catholic if he then was one: see In re May [1917] 2 Ch. 126. I agree with counsel for the respondents that Mark could not have avoided the need to choose by executing a disentailing deed after he came of age because he would have been already of an age to decide what (if any) form of religion to adopt and, if he was still a Roman Catholic when he executed the disentailing deed, he would already have forfeited his entailed interest if the condition was valid. The question would. therefore, have arisen whether the forfeiture condition as attached to Mark's entailed interest was valid. I have already given my reasons for thinking that it was not void for uncertainty or on general grounds of public policy - but it can be argued that such a condition is void as against anyone who is an infant at the date when the instrument containing it takes effect because it may tend to influence the decision of his parents as to what (if any) religious education he is to receive. In the Northern Irish case already mentioned the judges considered that it was a sufficient answer to this argument that a forfeiture could only be incurred by a deliberate act of the beneficiary concerned at a time when he must be regarded as free from parental influence and able to choose a religion for himself. But - with respect - I doubt whether this is really an answer to the argument. What his parents teach a child, or cause him to be taught, with regard to religion - even if it is only that religion is of no importance - is bound to affect any choice of religion which he makes when he comes of age, and some parents might be influenced by the existence of the condition to bring up their child in a way which would be likely to ensure that he did not forfeit his interest even though that form of religious education was not the one which they would have chosen for him apart from the condition. On the other hand, this line of reasoning if pressed home would lead to absurd results. To take an example given in argument - a grandfather who was anxious that his grandson should be educated at his old school might make some provision for him or his father to enable him to go to that school, stipulating that it should only become payable

when he went there and only last while he was there. It would be ridiculous to suggest that such a stipulation was contrary to public policy - yet in any given case the financial benefit might induce the boy's father to send his son to a school which he might think not so good or so suitable for the boy as some other school. Is it possible to draw any intelligible line here? Is it. for instance, possible to draw a ring round religious education and say that in that field conditions tending to influence the parents' choice are invalid? Or is it not, perhaps, more sensible to say that the suggested public mischief is non-existent because no parents who were convinced that it was of great importance that their child should be brought up to hold certain religious beliefs would allow financial considerations to deter them from bringing him up to hold them while conversely no harm could come from offering parents who thought that religion was a matter of little importance financial inducements to bring up their children to hold certain religious beliefs. For my part, I prefer to express no concluded opinion on this question which I find difficult to answer because, as I see it, even if one assumes in favour of the respondent that the condition as applied to Mark was valid he incurred no forfeiture by remaining a Roman Catholic between January 1, 1970, and September 16, 1970, when he executed a disentailing deed with the consent of Christopher and Justin, since any entailed interest which he then possessed was not an entailed interest in possession to which alone the condition in clause 9 of the will applies. He was, in fact, never faced with the choice of changing his religion in order to retain his property. The respondents submitted that it is not right that Mark should, as it were, "have it both ways" - that he should be able to rely on the decision of Wynn-Parry J. for the purpose of disentailing and destroying the forfeiture condition while his entailed interest was in remainder and at the same time attack the decision in so far as it decided that he had no entailed interest at all. But, though at first sight it may appear somewhat odd that Mark, by losing the battle with Justin before Wynn-Parry J., should in the end be in a stronger position as against the remaindermen than if Wynn-Parry J. had decided in his favour, there is not, as I see it, any question of his "approbating and reprobating" in a way that is open to any legal objection. The decision of Wynn-Parry J. was, and is, binding as between Mark and Justin, and Mark, by recognising the fact that any entailed interest which he might have was subject to a prior interest and disentailing on that footing, did not disentitle himself from arguing as against the remaindermen that Wynn-Parry J.'s reason for deciding in favour of Justin were wrong. For these reasons, I would allow the appeal.

LORD EDMUND-DAVIES. My Lords, the terms of the will of Robert Wynter Blathwayt relevant to this appeal, the manner in which it has been previously construed by the courts, and the course of events since the testator's death, have already been considered in detail in the speech of my noble and learned friend, Lord Wilberforce. The primary issue to be determined is the proper construction of clause 9 of the will, so that, in the terms of the originating summons dealt with by Goulding J. and the Court of Appeal:

"It may be determined whether... (a) upon the death of Justin

Wynter Blathwayt or (b) upon the forfeiture of the estate limited to the said Justin Robert Wynter Blathwayt during his life by the said will the property then subject to the trusts of the said will will be held - (i) upon trust for the defendant Mark Henry Wynter Blathwayt absolutely or (ii) upon the same trusts during the remainder of the life of the said Christopher George Wynter Blathwayt (if he is then living) as would have taken effect if the said Christopher George Wynter Blathwayt had previously died without having had issue and subject thereto upon trust for the defendant Mark Henry Wynter Blathwayt or (iii) upon the same trusts as would have taken effect if the said Christopher George Wynter Blathwayt had previously died without having had issue or (iv) upon some other and if so what trusts."

If Goulding J. and the Court of Appeal were correct in holding that construction (iii) was the proper one and that, upon the death of Justin or the forfeiture of the estate limited to him during his life, nothing will pass to Mark, it is common ground that no further questions strictly call for answer in this appeal, though it may nevertheless be convenient that some indication be given of what strikes one as the proper answers thereto.

I have read with great profit in draft the speeches of my noble and learned friends, Lord Wilberforce and Lord Cross of Chelsea. But, since they come to opposite conclusions regarding the manner in which the primary question involved in this appeal should be answered, I am confronted by the unenviable task of choosing between them, or, it may be, agreeing with neither and arriving at a destination different from that reached by either.

The first point of importance, as I think, is that in this family will the priorities fixed by clause 6 thereof should never be departed from unless it emerges clearly that the conditions subsequent imposed by clause 9 render such departure inescapable. As evidenced by the form of the respondents' case to this House and the marshalling of their argument, I do not think that this cardinally important approach was adhered to. The second.point of importance is that the matter of construing clause 9 should be dealt with unfettered by the manner in which it was decided in earlier litigation over this will. I have to say with respect that Goulding J. was in error in thinking otherwise. Having said that five possible constructions of clause 9 had been debated before him, and dealing with the first of these, he continued:

"(2) One can limit the hypothesis of notional death to the purpose of excluding Christopher's own interest. One then looks at clause 6 to see who comes in next, i.e. Mark. There is no room for Justin until after the eldest or only son of Christopher. This would result in the intermediate income being accumulated under section 175 of the Law of Property Act 1925 or, alternatively, such income being undisposed of. There is authority for this interpretation, Doe d. Heneage v. Heneage, 4 Term Rep. 13, explained by Kindersley V.-C. in Lambarde v. Peach, 4 Drew. 553, 574. So, if the court were of opinion that the testator had manifested an intention that Christopher's son should take, there would be some precedent for doing violence to the language of the will in favour of the unborn son. But this conclusion

is not open to me because of the orders made in the earlier proceedings.

"(3) There is a half-way house. It is possible to hold that the first interest is displaced; that the second is not yet ready; so that the third interest takes provisionally. This would mean that Christopher is displaced and Justin takes until the birth of Mark. Cf. In re Conyngham [1921] 1 Ch. 491 where the court held that the testator had shown a clear intention to make the equitable limitations of his estate absolute as against his heir at law, and In re Brooke [1923] 2 Ch. 265 where the daughter went into possession until a son who could take was born to her brother not himself being a person able to take. This construction also is not open to me because of the orders made in the previous proceedings."

After dealing with the two remaining submissions, Goulding J. concluded:

"So I find the position to be that constructions (2) and (3) are ruled out and that constructions (4) and (5) are unattractive; so that I am left with construction (1), which at least does no violence to the language and gives natural effect to the words 'were then dead'."

The Court of Appeal rightly regarded themselves as unfettered by the earlier constructions of clause 9, but arrived at the same conclusion as Goulding J. regarding the outcome of the appeal. Were they right? With diffidence (greatly increased by the fact that they are upheld by two of my noble and learned friends), I have come to the conclusion that they were not. It is not now open to dispute that Farwell J. rightly held that upon Christopher Blathwayt's reception into the Roman Catholic Church he forfeited his life interest in the principal estate and that what that learned judge inaccurately described as "the life interest" of Justin was accelerated, but that this was "subject to determination in the event of the birth of a son to the defendant Christopher... and the defendant Justin... is entitled to the income thereof and to the usual vesting deed." For what it is worth, one may note in passing that the originating summons heard by Farwell J. expressly raised the question whether Justin's interest was to be determined in the event of the birth of a son to Christopher, and that neither the learned judge nor anyone else then seemed to consider that Christopher's descendants were forever deprived of any chance of succeeding to any interest by the simple fact of Christopher's having become a Roman Catholic. Wynn-Parry J. [1950] 1 All E.R. 582, 585D doubted that the question whether the fact of the birth of a child to Christopher would destroy the accelerated interest of Justin was debated before Farwell J. and therefore felt free to form the conclusion that it did not. But, though the summons before him asked, inter alia, "that it may be determined what are the respective estates, interests, or rights" of Justin and Mark as from the latter's birth he ended his judgment with these words, at p. 585:

"I say nothing in regard to the interests arising on the death of Christopher, or in regard to what would then happen, but merely say that the interest of Justin did not determine on the birth of Christopher's son, Mark."

One of the questions arising in this appeal is whether the appellant is estopped in these proceedings from challenging the correctness of Wynn-Parry J.'s decision. As to that matter, I desire to say no more than that am in respectful agreement with my noble and learned friend, Lord Wilberforce, that, for the reasons he gives, the appellant is not estopped from inviting this House to examine that decision and (if we think it was wrong) to hold that upon birth Mark became entitled to an entailed interest in the principal estate. The reasons submitted by both counsel for the appellant convinced me, as I think they convinced all my noble and learned friends, that such was the right conclusion on this particular issue.

What, then, should have been the legal consequence of Christopher's reception into the Roman Catholic Church in 1939? We are no longer concerned to inquire whether, despite Wynn-Parry J.'s decision, Mark has any present interest in the settled estate, he having immediately followed his disentailing deed of September 16, 1970, by another deed assigning to Justin "all that the interest (if any) to which Mark Blathwayt is entitled in equity during the lifetime of Justin Blathwayt." But the question still remains, What should have happened when Mark was born? If, after setting out conditions (a) and (b), clause 9 had continued simply.

"then and in either of such cases the estate hereby limited to him shall cease and determine and be utterly void and my principal estate shall thereupon go to the person next entitled under the trusts hereinbefore declared"

the result would be that Mark would at birth have succeeded by virtue of clause 6 (b). The fact that Christopher was a bachelor at the time of his change of faith and therefore had no issue living then to succeed him would have created no problem: In re Conyngham [1921] 1 Ch. 491. But difficulty arises from the further words:

"... in the same manner as if the person whose estate shall so cease determine and become void being a tenant for life were then dead or being a tenant in tail male were then dead without issue inheritable under the estate tail..."

It is the addition of these words which led Stamp L.J. to hold that the method of filling the gap between Christopher's forfeiture and Mark's birth which such cases as In re Conyngham and In re Brooke [1923] 2 Ch. 265 approved of is not here available. Dealing with the words immediately following "... the trusts hereinbefore declared" in clause 9, Stamp L.J. said:

"But the second limb of the shifting clause does not stop there. It says that the principal estate shall not merely go to the person entitled under clause 6, but is to go 'in the same manner' as if Christopher were 'then' - that is to say, at the time he became a Roman Catholic - 'dead.' We cannot ignore those words, but must look back again at clause 6 and ask the question: To whom would the principal estate go and in what manner if Christopher were dead at the time he became a Roman Catholic? The answer to that question can, in our judgment, only be that upon the hypothesis that Christopher was then dead it could not go to a son of his but would go to Justin for life

with remainder to his first and other sons and so on, as directed in sub-clauses (d) and (e) of clause 6. We agree with the views expressed by Mr. Justice Wynn-Parry that this is not a case where one has to fill a gap in the limitations, because by the very terms of the shifting clause the testator has provided that there shall be no gap. We are encouraged in the view that the hypothetical death of a tenant for life is to have precisely the same consequences as would have ensued if he had been actually dead by the provision at the end of the shifting clause that the enjoyment of any rentcharge previously appointed in favour of a wife of the forfeiting tenant for life is not to be accelerated - a provision which would be unnecessary unless for all the purposes of clause 6 he was to be treated as having then been dead."

As the foregoing passage appears to set out and approve of the basic submissions of the respondents both in the Court of Appeal and before this House which have been considered in detail by my noble and learned friends, Lord Wilberforce and Lord Cross of Chelsea, whose experience and knowledge of this branch of the law so greatly exceed my own, I propose to do no more than indicate shortly the conclusions I have come to regarding them:

(a) Mr. Balcombe was correct in contending that the shifting and the acceleration portions of clause 9 were inserted to give effect to the forfeiture provision with which the clause opens and not for the purpose of defeating the primary limitations contained in clause 6, and that unless a contrary intention was shown, they should be construed so as to preserve those primary limitations.

(b) The effect of clause 6 alone is that if one of the life estates thereby disposed of prematurely determines without the holder having issue to succeed him, there is no gap during the rest of his life but the next life interest takes effect - subject to defeasance if and when a son is born to the life tenant whose interest had been prematurely determined.

(c) Clause 9 does not, as has been contended, contain a clear indication that, having regard to Christopher's forfeiture without issue, the foregoing provisions of clause 6 were not to operate in favour of Mark. On the contrary, the shifting provision that "my principal estate shall thereupon go to the person next entitled under the trusts hereinbefore declared" included a person unborn at the time of forfeiture of the prior estate.

(d) The provision in clause 9 regarding the non-acceleration of the enjoyment of any rent-charge previously appointed in favour of the wife of a forfeiting tenant for life is not (contrary to the view expressed by Stamp L.J.) an indication that the hypothetical death of a forfeiting tenant for life was to have the same consequences as if he had actually died, for the provision does not affect the identity of the person who is to take the jointure rent-charge.

In the course of his helpful submissions, Mr. Godfrey found himself obliged to concede that it would be capricious of the testator to impose forfeiture not only upon Christopher but also upon his unborn son, Mark, whereas had Christopher been a married man with issue when he incurred forfeiture, his eldest son would have succeeded under clause 6 (b). He rightly reminded us that testators have a fairly unfettered right to be capricious when disposing of their estates. Nevertheless, a disposition which, if the

respondents are right, has such an undoubtedly capricious result must be scrutinised with care to ascertain whether the testator intended any such consequence to flow from his will. Having conducted that scrutiny to the best of my ability, bearing in mind the submissions of counsel, and having borne in mind in particular the observations of my noble and learned friend, Lord Wilberforce, regarding the absence of any express provision as to the disposition of income accruing between Christopher's forfeiture and Mark's birth, the conclusion I have come to, consonant with that of my noble and learned friend, Lord Cross of Chelsea, and for the same reasons as those which have found favour with him, is that Wynn-Parry J. arrived at a wrong conclusion and that Justin's enjoyment of income should have terminated at Mark's birth.

Wynn-Parry J. was careful to point out ([1950] 1 All E.R. 582, 584B) that the fact of Mark's baptism as a Roman Catholic "for the purposes of the question which arises today, that is not a material fact." Mark's continued adherence to his faith is similarly not a material fact in the present appeal, he having disentailed before coming into possession. I therefore refrain from expressing any concluded view regarding the validity of the provision for forfeiture by one who "shall (a) be or become a Roman Catholic," save to say that I would not hold it void for uncertainty. Furthermore, in the light of the reported decisions considered in detail by my noble and learned friend, Lord Wilberforce, I would also not hold the forfeiture provision void on the ground of impermissible discrimination, and I am at present inclined to the view that it did not offend against public policy in the narrower sense spoken of by Parker J. in In re Sandbrook [1912] 2 Ch. 471. After all, a not unimportant matter of public policy is involved in limiting a testator's power to dispose of his own property in his own way without clear justification for so curtailing his freedom being first established, and I echo the doubt expressed by my noble and learned friend, Lord Cross of Chelsea, that it is self-evidently against public policy for an adherent of one religion to distinguish between people of one faith or another when he is making his testamentary dispositions.

Be that as it may, for the reasons I have given I would hold that, upon the death of Justin Blathwayt, the property then subject to the testamentary trusts will be held upon trust for the appellant, Mark Blathwayt, absolutely. I would accordingly allow the appeal.

LORD FRASER OF TULLYBELTON. My Lords, I have had the advantage of reading in draft the speech of my noble and learned friend, Lord Wilberforce. I entirely agree with it, and for the reasons stated in it I would dismiss the appeal.

But as the majority of your Lordships take a different view on the question of construction, other questions arise. I have nothing to add on the question of uncertainty or on the general question of public policy in relation to the condition in this will, but I wish to refer to the narrower argument that a forfeiture condition is void as against a person, such as Mark, who was an infant at the time when the instrument containing the condition takes effect, because it might influence his parents in bringing him up. I share the doubt of my noble and learned friend, Lord Cross of

Chelsea, whether it is an answer to that argument to say that the beneficiary has the chance to make up his own mind after he has attained years of discretion: he may have been so conditioned by his upbringing during infancy that his decision is almost inevitable. But I doubt whether the argument itself is acceptable. The authority relied upon as the foundation for it was In re Sandbrook [1912] 2 Ch. 471, where the condition was that, if either of the testatrix's grandchildren should "live with or continue under the custody, guardianship or control of their father," they should lose all benefits under the will. One of the reasons why Parker J. held that condition void was that it had the direct object of deterring the father from performing his parental duties towards the children and that it would operate to restrain or forbid him from doing his duty. But deterring a father from performing his parental duty and from exercising any control at all over his children seems to me quite different from influencing him to exercise his authority in a particular way, as the will in the present case might tend to do. That part of the ratio of Sandbrook is, in my opinion, therefore not applicable in the present case. Sandbrook was relied on in In re Borwick [1933] Ch. 657, where the testator provided that any grandchild who should, before obtaining a vested interest, be or become a Roman Catholic, or not be openly or avowedly Protestant, should forfeit all interest under the will. That condition was held void on the ground that it operated to interfere with the parent in the exercise of his parental duty as regards the religious instruction of his children. Bennett J. held that the parents' duty ought to be discharged "solely with a view to the moral and spiritual welfare of their children, and ought not to be influenced by mercenary considerations affecting the infant's worldly welfare" (p. 666). Similarly in In re Tegg [1936] 2 All E.R. 878, a condition requiring that "at no time may any child of hers go to or be sent to any Roman Catholic school for education" was held void as a fetter upon the parent doing what she might think best for the welfare and education of her children. The decisions in these cases do not appear to me to follow from the ratio in Sandbrook and, in any event, I would not follow them in the present case. If a parent has strong convictions he may well regard the religious upbringing of his child as of overriding importance not to be set against purely material considerations; if, on the other hand, his religious convictions are weak or non-existent, he can weigh a testamentary benefit with a religious condition attached as one among the many factors affecting the welfare of his child. In neither case does the existence of the religious condition seem to me to offend against public policy merely because it might affect the parent's action. One must remember also the public policy that a testator should be free, subject to the rights of his surviving spouse and children, to dispose of his property as he pleases. It would surely be going too far to say that a bequest for the benefit of a child to help with paying his school fees, payable on condition of his going to a particular school, would be contrary to public policy. Conversely, a bequest on condition of his not going to a particular type of school - say a fee-paying public school - ought not to be contrary to public policy either. In my opinion the same rules should apply to conditions about the religious upbringing of a child. For these reasons, I am of opinion that the religious condition in the present will was not invalid either because it was altogether contrary to

public policy or because it might influence the child s father as to how to bring up his child.

Solicitors: Park Nelson, Dennes, Redfern & Co.; Radcliffes & Co.; Lawrence, Graham & Co.

F.C.