Summary

The court interpreted a names and arms clause in a will which required an heir, within one year of becoming entitled, to apply for and endeavour to obtain the Royal Licence or take such other steps to authorise the use and bearing of the name and arms concerned. It determined that if an application for a Royal Licence was made, but not granted within a year, there was no independent obligation to take up the name before the Royal Licence was granted.

Facts

The appellant (H) appealed against a decision ((2011) EWHC 63 (Ch), (2011) WTLR 397) that the respondent, his father (L), had not incurred a forfeiture under a name and arms clause in the will of the testator (T) who was respectively their great-grandfather and grandfather. The names and arms clause declared that the heir to specified estates devised by T's will had to use the Howard name and bear the Howard coat of arms within one year of becoming entitled. It contained a forfeiture provision under which an heir was required, within the year, to "apply for and endeavour to obtain the Royal Licence or take such other steps as might be requisite to authorise the user and bearing of the said surname and arms". L's father had been deemed to have forfeited his entitlement on January 5, 1961. L had applied to the College of Arms for permission to adopt the Howard name and arms and the Home Office gave him permission to proceed in November 1961, but his petition was not lodged until after the expiry of one year following the forfeiture of his father's interest. The Royal Licence was subsequently issued and authorised L to take up both the Howard name and arms, which he did. The judge below held that L had not forfeited his entitlement because the heir had to have authority to use and bear the Howard arms and was not obliged to take up arms before having that authority. He found that the names and arms clause appeared to treat the obligations to use the Howard name and arms as a single entity. The issue was whether the obligation to take and use the Howard name was an independent obligation which the heir had to comply with within the year of his estate vesting if he had applied for, but not obtained, a Royal Licence within that period.

Held

The obligation to take and use the Howard name was not an independent obligation when the heir decided to seek a Royal Licence to take both the arms and the name. It was clear from Halsbury's Laws, Vol.35, para.974 that a Royal Licence was invariably granted when permission to take the arms of another family was sought for the purposes of a names and arms clause containing a forfeiture provision. The use of the word "or" in the forfeiture clause achieved the result that forfeiture would follow if there had been a failure either to adopt the Howard name and arms or to apply for and to endeavour to obtain a Royal Licence within a year. On the ordinary, straightforward reading of the forfeiture provision, it did not apply if, as in the instant case, the heir had applied for a Royal Licence within the year and endeavoured thereafter to obtain it. Moreover, the obligation to endeavour to obtain the Royal Licence did not arise until the application had been made: if T had wished the application to be made as quickly as possible after the vesting of the estate, he would have used words to that effect. An intention on the part of T to require steps to be taken as soon as possible after vesting should not be assumed without an indication that that was what he intended. The word "apply" clearly bore a looser meaning than "present the petition", which had not been used (see paras 14, 25-27 of judgment). It was inherently improbable that T would have been concerned to have the heir take up and use the Howard name as soon as possible, given the antiquity of the name. On that basis, if an application for a Royal Licence was made, but not granted within a year, there was no obligation to take up the name and no refusal or neglect to do so for the purposes of the forfeiture provision (para.28).

Appeal dismissed