Summary

A name and arms clause in a will, which made a beneficiary's enjoyment of an estate conditional upon the adoption of the testator's surname and upon "applying for and endeavouring to obtain" a royal licence to bear arms, was construed as containing two requirements, namely use of surname and use of arms, both of which had to be independently satisfied if a forfeiture by discontinuance was to be avoided.

Facts

The court was required to determine as a preliminary issue whether, on the true construction of a will, the defendant (L) had forfeited his interest on January 5, 1962 under the provisions of a name and arms clause in a will. The claimant (H) was L's son and they were respectively great-great grandson and great-grandson of the testator (T). T's surname was Howard. T had only one daughter and her sons, including L were born with the name Lawson. T was concerned to ensure the continuance of the association of his family name and arms with his landed estate. Clause 8 in the will made the enjoyment of that estate by each successive remainderman conditional upon the adoption of T's surname and upon "applying for and endeavouring to obtain" a royal licence to bear arms of Howard during the first year after entitlement. A forfeiture would be incurred if the beneficiary refused or neglected within the year to apply for and endeavour to obtain a royal licence. L accepted that he had not used the surname Howard exclusively within the year after his interest fell in and although he had applied to the College of Arms during the year a royal licence had not been issued until shortly after the end of his year. H submitted that (1) L was obliged to adopt the name of Howard, and thereafter use it exclusively, during the first year after entitlement, irrespective of the separate obligation imposed by the second part of the clause to endeavour to obtain a royal licence to bear arms. Consequently, the provision about a royal licence referred to authority to bear arms and not use of the surname; (2) L had not complied with the requirement to apply for and endeavour to obtain a royal licence within the year and consequently L's interest had been forfeited. L denied that there had been any forfeiture.

Held

(1) It was settled law that there was no need to take any formal steps to use a surname whereas arms could lawfully be assumed only by applying for a royal licence, Davies v Lowndes 131 ER 1247 CCP considered (see para.29 of judgment). Under clause 8 of the will, it was the royal licence which was the formal method stipulated to change the surname to Howard as well as the right to bear the Howard arms. The exemplification of the arms was expressed to be a condition precedent under the terms of the royal licence to the use of the surname as well as the arms. Once it was determined that a royal licence was the appropriate course, L could not properly have used the Howard surname in anticipation of the licence. The clause catered both for the assumption of surname and arms and for their continued use, both by persons who had previously used them and by those who had not. Once lawful authority had been acquired, use of surname and use of arms became two separate requirements both of which had to be independently satisfied if a forfeiture by discontinuance was to be avoided (paras 45-46). The requirement to use the surname was not limited to occasions when the surname was used in conjunction with the arms. However, both had to be assumed together to satisfy the requirements of the clause, Neeld (No1), Re (1962) Ch 643 CA considered. (2) All that clause 8 required was that the beneficiary should apply within the year and thereafter genuinely pursue the application for a royal licence; it did not require the beneficiary to endeavour to obtain the licence within the year. In the instant case, L had applied for the licence within the year, he had used reasonable endeavours to obtain the licence and had obtained it not long after the end of his year (paras 54-55). Accordingly, there was no forfeiture under the provisions of clause 8 of the will.

Preliminary issue determined in favour of defendant