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You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Chapman and Others v. Perkins [1905] UKHL 856 (03 March 1905) URL: http://www.bailii.org/uk/cases/UKHL/1905/42SLR0856.html Cite as: [1905] UKHL 856, 42 ScotLR 856 |
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Page: 856↓
(Before the
( On Appeal From The Court Of Appeal In England.)
Subject_Will — Construction — Intention — Clause of Forfeiture — Forfeiture of Interest in Event of Certain Marriage — Marriage Occurring during Testator's Lifetime.
A testator by his will conferred certain interests in his estate upon his children, providing however that on the occurrence of certain enumerated events, e.g., the bankruptcy of a child, or if a child contracted a marriage within a degree of kindred indicated in the will, he or she should forfeit his or her interest under the will.
During the lifetime of the testator a daughter contracted a marriage within the prohibited degree.
Held that, as regarded the forbidden marriages, the provision as to forfeiture was meant by the testator only to apply to a marriage entered into after his death, and that consequently the daughter had not forfeited her interest.
Edward Chapman by his will dated March 24, 1881, devised and bequeathed his real and personal estate to trustees, to be held by them upon trusts for the benefit of his wife and children. The will contained the following clauses:—“And I declare that if any son or daughter of mine shall do or suffer any act whether by way of alienation, charge, or otherwise, and including any act under any statutes of bankruptcy or for the relief of insolvent debtors for the time being, by reason or means whereof any part or share of him or her in any income or capital of my said estate to or of which he or she shall not have already become entitled in possession or be for the time being actually entitled to receipt, shall or but for the payment clause would become wholly or in part vested in or payable to any other person or persons, or if he or she shall contract any marriage forbidden by me as hereinafter expressed, then and in any such case his or her share, right, title, and interest of, in, and to my said trust estate and the income thereof shall thenceforth cease and determine, and my said trust estate shall thenceforth go and be held in such manner as the same would have been held if he or she had died before me without leaving any child or children at my death. And I declare that the marriages forbidden by me. are in the case of son or daughter marrying with a person of any degree of kindred unless more remote than third cousin, and also in the case of a daughter's marriage contracted without the previous written consent of the trustees or trustee for the time being of this my will, or if more than two, of a majority of them.”
The testator died on December 23, 1902.
On November 9, 1886, one of the testator's daughters married her first cousin.
The Court of Appeal ( Williams and Stirling, L.JJ., diss Cozens-Hardy, L.J., rev a decision of Kekewich, J.) held that as regarded the forbidden marriages, the testator's intention was that forfeiture should only take effect in the case of a marriage entered into after the testator's death, and that consequently the daughter had not forfeited her interest.
On appeal to the House of Lords their Lordships gave the following opinions:—
Page: 857↓
Appeal dismissed.
Counsel for the Appellants— Levett, K.C.— Iselin. Agent— John F. Child, Solicitor.
Counsel for the Respondent— Upjohn, K.C.— E. Clayton— W. A. Russell. Agents— Ward, Perks, & M'Kay, Solicitors.