Papua New Guinea Law Reports - 1974
[1974] PNGLR 30
PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]
IN RE CRAWFORD DECD., CRAWFORD
V
CRAWFORD
Port Moresby
Frost SPJ
30 August 1972
3 October 1972
WILLS - Construction - Condition - Termination of marriage - Corpus to vest only if marriage terminated - No existing marriage - Not contrary to public policy - Expression “permanently separated” void for uncertainty - Condition of no effect since presupposing a non-existent state of affairs.
WILLS - Construction - Vested or contingent interest - Absolute discretionary power in trustees to pay income during infancy and until attain 25 years - Interest vested in law but postponed in possession.
A Testator devised and bequeathed the residue of her estate upon trust to divide the same into three equal parts and to transfer one-third part to each of two named daughters on attaining 25 years, with absolute discretionary power to the trustees to pay income from each third share “during infancy ... and thereafter until they attain 25 years”. As to the remaining one third part the Testator provided by clause (f):—
“To pay in my trustees absolute discretion the income of the remaining one-third share to my daughter Elizabeth Ann Simler during her lifetime unless and until my said daughter should become permanently or judicially separated or divorced from her husband or should become a widow whereupon I direct my trustee to transfer the said one-third share to Elizabeth Ann Simler.”
At the date of the Testator’s death her daughter Elizabeth Ann Crawford was unmarried and had not been married, though she had lived with Mr. Simler as man and wife for some time.
On a special case to determine the estates and interests taken by each of the three daughters;
Held
(1) There being no subsisting marriage which the provision in paragraph (f) of the will might tend to disrupt it could not be said to be contrary to public policy; public policy is contravened only if some real mischief can be caused by the provision.
In re Johnson’s Will Trusts; National Provincial Bank, Ltd. v. Jeffrey and Others [1967] 1 Ch. 387 distinguished.
(2)      The expression “permanently separated”, involving as it does a repugnancy, that part of the provision should fail for uncertainty.
In re Allen decd.; Faith v. Allen [1953] 1 Ch. 810 per Evershed M.R. at pp. 817, 818 and In re Caborne [1943] 1 Ch. 224 at p. 230 applied.
(3)      As, to give effect to the condition would mean that it could only operate in a manner not contemplated by the testator, there being in fact no marriage which could be affected or terminated, and possibly so as to defeat her intention, the circumstances justified the application of the principle that if a condition presupposes a state of affairs which does not exist, it should be taken to have no effect. Accordingly the condition failed and Elizabeth should take absolutely.
Yates v. University College of London (1873) 8 Ch. App. 454 applied.
(4)      The direction as to income was sufficient to confer upon each daughter an interest, vested in law but postponed in possession, in a one third share of the residue: the direction to pay the income in the meantime even though discretionary being sufficient indication that any part of the income unpaid was to be transferred with the corpus to the daughter entitled.
Dictum of Jessel M.R. in In re Parker (1880) 16 Ch. D. 44 at p. 45 and In re Geering decd. [1964] 1 Ch. 136 applied.
Special Case
In this action the executors of the will of the testatrix and the three daughters as beneficiaries of the residuary estate concurred in stating in the form of a Special Case for the opinion of the Court questions of law involved in the construction of the will of Marjorie Rose Crawford deceased. The matters so to be determined were the estates and interests in the real and personal estate of the testatrix taken by each of her three daughters. The relevant provisions of the will are set out in the reasons for judgment.
Counsel
R. H. B. Wood, for the plaintiffs.
J. F. Pescott, for the defendants, A. J. Crawford and P. M. Crawford.
L. K. Young, for the defendant, Elizabeth Ann Crawford.
Cur. adv. vult.
3 October 1972
FROST SPJ: By her will dated 10th January, 1969, after providing for the appointment of executors and trustees and also a gift of personal effects and furniture to the testatrix’s husband with a direction to distribute these between her three daughters or the survivor of them in equal shares, the testatrix devised and bequeathed the residue of her estate to the use of her trustee upon trust to sell call in and convert the same into money etc. and stand possessed of the proceeds to:
“(a)    Pay all of my just debts and funeral and testamentary expenses ...
(b)      Divide the residue of my estate of three equal parts (sic).
(c)      To transfer one-third part to my daughter alison jane crawford upon her attaining the age of 25 years.
(d)      To transfer one-third part to my daughter prudence margaret crawford upon her attaining the age of 25 years.
(e)      During the infancy of the said alison jane crawford and prudence margaret crawford and thereafter until they attain the age of 25 years I direct my trustees to pay in their uncontrolled discretion the income from their respective shares to the said alison jane crawford and prudence margaret crawford.
(f)      To pay in my trustees absolute discretion the income of the remaining one-third share to my daughter elizabeth ann simler during her lifetime unless and until my said daughter should become permanently or judicially separated or divorced from her husband or should become a widow whereupon I direct my trustee to transfer the said one-third share to elizabeth ann simler.
(g)      I direct that if the said elizabeth ann simler shall fail to attain the vested interest in such one-third share then upon her death my trustee shall stand possessed of one-half of the said one-third share as an accretion to the share of alison jane crawford and the other one-half of the said one-third share as an accretion to the share of prudence margaret crawford.”
Each of the three daughters (whom, for convenience, I shall refer to by their first names) who are the defendants to the action, survived the testatrix who died on 15th May, 1969. Alison is a minor; Prudence has attained 21 years but not 25 years of age.
The main difficulty that has arisen in the construction of the will is due to the facts as stated in the Special Case, that “the person in the will named as Elizabeth Ann Simler was, at the date of the deceased’s death, and at all material times, Elizabeth Ann Crawford”, and that Elizabeth Ann Crawford “at the date of the deceased’s death, and at all material times, was unmarried and had not been married”. It was common ground before me that the testatrix’s mistaken belief that Elizabeth was married to Mr. Simler was due to the facts that Elizabeth let it be known that they were married, and that they were living together. Evidence filed on behalf of Elizabeth, which I have looked at without objection by the parties, indicates that they were not married because Mr. Simler was married to another woman. At the date of the testatrix’s death, that marriage had been dissolved by decree nisi, which became absolute after her death, but Elizabeth and Mr. Simler have not since married. A child had been born to them whilst the testatrix was living. Since the latter’s death they have continued living together, and a second child was born to them. No reason appears for the parties not being married, nor would evidence to that effect be admissible on a question of construction. From the terms of the will it appears that the testatrix disapproved of the association, and indeed Elizabeth has deposed to that effect.
Mr. Wood, who appeared for the trustee, submitted that the will took effect according to its tenor so far as the gift of income to Elizabeth was concerned, but, as the condition for the enlargement of her interest to a legacy of the one-third share of the corpus was based on the testatrix’s mistaken assumption that Elizabeth was married at the date of death, those conditions were impossible of performance, with the result that both the condition and the gift of corpus were void, and the gift over to Alison and Prudence took effect on the death of Elizabeth. Mr. Pescott, who appeared for Alison and Prudence, addressed no argument to the Court on behalf of his clients.
Mr. Young, who appeared for Elizabeth, submitted, first, that upon all the terms of the will the testatrix intended to benefit her three daughters equally, so that in effect there was a gift of one-third of the residue to Elizabeth, which was subject to her becoming permanently or judicially separated or divorced from her husband or the marriage coming to an end because of his death, that this condition was void as being against public policy, and that therefore the gift became absolute.
The terms of the condition are expressed to be that Elizabeth “should become permanently or judicially separated or divorced from her husband or should become a widow whereupon I direct my trustee to transfer the said one-third share to Elizabeth Ann Simler”. Mr. Young’s submission that the provision as a whole was contrary to public policy was founded on In re Johnson’s Will Trusts; National Provincial Bank, Ltd. v. Jeffrey and Others[xxxiii]1. In that case the Court was concerned with a provision in a will in which the testator gave to his daughter an out-and-out life interest, qualified (inter alia) by certain particular provisions, the effect of which was to cut down the interest of his daughter during the period of 21 years from his death, and so long as she should be married to and living with her husband, to œ50 per year; and to the further effect that, in the event of the death of the testator’s son-in-law or of the daughter’s marriage to the son-in-law being terminated by divorce or of her ceasing to live with her husband within the period of 21 years, she should receive the whole of the income and any accumulated surplus. Buckley J. held that this was a provision which would tend to encourage the daughter to separate from her husband or possibly to divorce him, which was contrary to public policy and, being in the nature of a condition of defeasance of the daughter’s life interest, was therefore void. The learned judge followed the decision of Simonds J. (as he then was) in In re Caborne[xxxiv]2. However, in In re Johnson’s Will Trusts[xxxv]3 Buckley J. took as one of the grounds of his judgment the fact that the daughter at all times had been living with her husband and at the time of the hearing was still living with him. In the terms the learned judge stated the principle, for such a condition to be undesirable from the point of view of public policy, the tendency of it must be such as to encourage the breaking up of a subsisting marriage (at p. 395). Mr. Young relied strongly upon the words of Simonds J. in In re Caborne[xxxvi]4 that in such a matter, “... the law looks, not to the possibility of public mischief occurring in the particular instance, but to the general tendency of the disposition....” But it appears that Simonds J. was referring to the testator’s motives in making a provision of this kind, and expressing the view that whatever those motives were, the Court looked to the general tendency of the disposition. Moreover, whilst his Lordship was certainly directing his mind to the effect of the provision on an existing marriage, in my opinion the dictum is not to be interpreted so widely that public policy could be said to be contravened if there was no subsisting marriage. Public policy is contravened only if some real mischief can be caused by the provision.
The terms of the present will cannot be distinguished from the provision held void in In re Johnson’s Will Trusts[xxxvii]5 but, in my opinion, there being no subsisting marriage between Elizabeth and Mr. Simler which such a provision might tend to disrupt, that case is distinguishable from the present case, and it cannot be said that the provision is contrary to public policy. The effect should the parties marry in the future does not arise for decision upon the terms of the special case, but I am not to be taken to consider that the legal position would be any different.
I should add that since the hearing I have noticed the case of Ramsay v. Trustees Executors & Agency Co. Ltd.[xxxviii]6, which was not referred to at the hearing. In that case the High Court was concerned with the validity of a provision which was different in form, but identical in substance with that considered in In re Caborne[xxxix]7. By a majority the Court declined to follow Lord Simonds’ decision. It is to be noted that Dixon J., as he then was, dissented, and in a later case had occasion to state that he saw no reason to repent his dissent. Church Property Trustees, Diocese of Newcastle v. Ebbeck[xl]8. The decision of the High Court does seem to me to cast doubt on the authority of In re Johnson’s Will Trusts[xli]9, but, as I have taken the view that the latter decision is distinguishable, and the matter was not argued, I express no opinion as to whether that decision should be followed by this Court as part of the common law in force and prevailing in England within the meaning of The Courts & Laws Adopting Ordinance of 1888, s. 4.
As this argument fails, it is necessary to consider the meaning of the provision. It is plain that by Elizabeth Ann Simler, the testatrix intended her daughter, so that the will confers on Elizabeth an interest during her lifetime to receive such of the income of the remaining one-third share of the residue as is paid to her by the remaining trustee in his absolute discretion. The effect of the provision, in my opinion, is then to go on and create a condition precedent upon the fulfilment of which Elizabeth’s interest in the income is enlarged to a legacy of the corpus. The condition has four alternative limbs,—that Elizabeth during her lifetime should become (i) permanently separated, (ii) judicially separated, or (iii) divorced from her husband, or (iv) should become a widow. As “husband” must refer to Mr. Simler and the assumption behind the condition in its entirety is the fact that the parties were married, there is therefore much force in Mr. Wood’s submission that it is impossible for Elizabeth to satisfy the test that she had become permanently separated from Mr. Simler as her existing lawful husband, or that such an existing marriage had been affected by a judicial separation or terminated by divorce or death. If the submission is sound each limb of the condition is impossible of performance, and, as such impossibility was unknown to the testatrix, under the ecclesiastical law which was inherited by the Court of Chancery both the entire condition and the gift of the corpus to Elizabeth are void. Re Wolffe’s Will Trusts, Shapley v. Wolffe[xlii]10.
Before dealing with this submission there is another question of law to be considered. I adhere to the view I expressed at the hearing that, so far as the first limb is concerned, the question is raised whether the expression “permanently ... separated” is sufficiently certain to be valid. Whilst it is true that a condition precedent is construed on the question of uncertainty with more liberality than a condition subsequent, and if the condition is such as to involve questions of degree, the beneficiary will take if he can satisfy any or at least any reasonable test, a condition precedent will be declared void for uncertainty if its terms are such that it is impossible to give them any meaning at all, or such that they involve repugnancies or inconsistencies in the possible tests which they postulate as distinct from mere problems of degree. In re Allen, Faith v. Allen[xliii]11 per Evershed M.R. I have considered whether the expression could mean a separation between husband and wife other than a temporary separation, and thus raise for the trustee or the Court merely a problem of degree, but on reflection I consider that a repugnancy is involved, for as Lord Simonds remarked in another context—and it could not be put more succinctly — “About separation there is nothing final”, In re Caborne[xliv]12. Accordingly that part of the condition must be held void for uncertainty.
Upon the question of impossibility of performance my mind has wavered, but, in the end, I have come to the conclusion that it has not been shown that the condition is impossible of performance. It is established that impossibility must be strictly proved, Franco v. Alvarez[xlv]13. In my opinion, upon its terms, as the condition extends to the future, strictly, it is capable of performance if Elizabeth and Mr. Simler should marry, and subsequently the event occurs of a judicial separation or divorce or Mr. Simler pre-deceasing Elizabeth. But it seems to me that this conclusion does not determine the matter. Lord Evershed has said that, “... in the case of a will it is in general the function and duty of a court to construe the testator’s language with reasonable liberality and to try, if it can, to give sensible effect to the intention he has expressed”. In re Allen, Faith v. Allen[xlvi]14. So it is necessary to look more closely at the intention expressed in this will. I consider that the purpose of the provision must have been to secure for Elizabeth an income during the marriage, and also to prevent the corpus from coming under the control of Mr. Simler. Hence the testatrix’s intention was that Elizabeth should not acquire the corpus during cohabitation. I am prepared to infer that the testatrix intended also that, if Elizabeth’s right to support was affected (inter alia) by the termination of the marriage, she should have the additional support of the corpus. Thus the performance of the condition was not the sole motive of the bequest. But it would be doing violence to the language to hold, as Mr. Young submitted, that proof merely that the parties had not been married with the consequence that Elizabeth was not entitled to support, was sufficient compliance with the condition. However, on the one hand the case raises the problem to be found in those cases where the Court gives effect to an interest disregarding a condition, the testator’s intention being necessarily, even to some extent, defeated and, on the other hand, the question arises whether, if the will were given effect upon the circumstances existing, its operation would accord with the testator’s intention. I have in mind particularly the circumstances of Elizabeth, at the date of the testatrix’s death, without any legal right of support, being dependent upon a marriage taking place with Mr. Simler, a marriage which the testatrix disapproved and which could be outside Elizabeth’s control, to enable her to be placed in a position even to qualify for the gift of the corpus. Thus to give effect to the condition would mean that it could only operate in a manner not contemplated by the testatrix and possibly so as to defeat her intention. In my opinion, in the circumstances of this case, the principle is applicable that, if a condition presupposes a state of affairs which does not exist, it should be taken to have no effect. The principle was referred to and applied in Yates v. University College, London[xlvii]15, a decision of Lord Selborne L.C., which was approved in the House of Lords, although not altogether for the same reasons. In that case the testator gave certain personal estate to the College for founding a professorship of archaeology, for the regulation of which he purposed preparing a code of rules; and he directed that his executors should after his death communicate the bequest, together with a copy of the rules, to the College, which should within a specified time signify their acceptance of the rules; and in case of the College declining to accept them, the bequest should be void. The testator died without preparing the rules. Lord Selborne held that the bequest took effect absolutely. In his judgment, after referring to the provision relating to the rules, Lord Selborne stated the principle applicable—”That illustrates the meaning of certain passages in some of the authorities which speak of some impossible conditions as not being enough to defeat a gift, even when they are in form precedent; the real meaning of which is that a condition may be expressed with relation to some matters which are of such a nature that there is no condition at all unless those matters exist. All that is said about the rules presupposes the existence of the rules, and anything presupposing the existence of the rules simply falls to the ground, and is no condition at all, if the rules do not exist.” It is true that that was a case of default on the part of the testator but there does not seem any reason why the principle should not be given wider operation and extended to the circumstances of this case. I consider that the present condition falls into the same category as that considered by Lord Selborne as it so completely presupposes the existence of the marriage, that, there being in fact no marriage which could be affected or terminated in the manner the testatrix contemplated, the condition falls to the ground. Accordingly, in my opinion, Elizabeth takes absolutely.
It remains to deal with the estates and interests taken by the testatrix’s daughters Alison and Prudence. The first question is whether these legacies are vested or contingent. The law is stated in Jarman on Wills at p. 1391 as follows: “It would seem, too, that, where the only gift is in the direction to pay or distribute at a future age, the case is not to be ranked with those in which the payment or distribution only is deferred, but is one in which time is of the essence of the gift.” Thus a trust to transfer the one-third share to each daughter upon her attaining the age of 25 years, without more, confers a contingent interest only. But the direction to the trustees to pay at their uncontrolled discretion the income from the respective shares to each daughter during infancy, and thereafter until each attains the age of 25 years is relevant on this issue. Counsel referred to Re Parker[xlviii]16, in which Jessel M.R., it is true in a dictum only, stated the following general principles, “In my opinion, when a legacy is payable at a certain age, but is, in terms contingent, the legacy becomes vested when there is a direction to pay the interest in the meantime to the person to whom the legacy is given; and not the less so when there is superadded a direction that the trustees ‘shall pay the whole or such part of the interest as they shall think fit’ “. (Cited by Jarman (supra) at p. 1400.) Although the law seems to be not entirely clear, and was not fully argued, I consider that this is the principle that I should apply. In the present will there is a direction to the trustees to pay the income in their uncontrolled discretion, which would justify the trustees in withholding all or part of the income. However, in my judgment, the bequests fall within the principle cited, and accordingly the direction as to income is sufficient to confer upon each daughter an interest, vested in law but postponed in possession, in a one-third share of residue. I consider that the direction to pay the income in the meantime, even though discretionary, is also sufficient indication that any part of the income unpaid by the trustees is to be transferred with the corpus to the daughter entitled, see In re Geering decd. Gulliver v. Geering[xlix]17, and the cases there cited.
I would therefore answer the questions asked as follows:
(a) & (b)       —The estates and interests taken in the real and personal estate of the testatrix by Alison Jane Crawford and Prudence Margaret Crawford, as to each of them, are as follows: a vested interest in one-third part of the residue but postponed as to payment upon the said daughter attaining the age of 25 years; a beneficial interest during infancy and thereafter until attaining the age of 25 years in such part of the income from the said share as is paid to her by the remaining trustee in his uncontrolled discretion, and also in any income therefrom remaining unpaid to her on attaining the age of 25 years.
(c)      The estates and interests taken in the real and personal estate of the testatrix by Elizabeth Ann Crawford are a beneficial interest in such part of the income from the remaining one-third share as is paid to her during her lifetime by the trustee in his absolute discretion, and also a beneficial interest in the said remaining one-third of the corpus, subject to a condition precedent that the said Elizabeth Ann Crawford should become permanently or judicially separated or divorced from her husband or should become a widow, but, in the circumstances, the condition being void, the said Elizabeth Ann Crawford takes the said beneficial interest absolutely.
Solicitors for the plaintiffs: Cyril P. McCubbery & Co.
Solicitors for the defendants, Alison Jane Crawford, and Prudence Margaret Crawford: Craig Kirke & Co.
Solicitors for the defendant, Elizabeth Ann Crawford: Norman White & Reitano.

[xxxiv][1943] 1 Ch. 224; [1943] 2 All E.R. 7.
[xxxv][1967] 1 Ch. 387.
[xxxvi][1943] 1 Ch. 224; [1943] 2 All E.R. 7.
[xxxvii][1967] 1 Ch. 387.
[xxxviii](1948) 77 C.L.R. 321.
[xxxix][1943] 1 Ch. 224; [1943] 2 All E.R. 7.
[xl](1960) 104 C.L.R. 394 at p. 403.
[xli][1967] 1 Ch. 387.
[xlii](1953) 1 W.L.R. 1211 (Harman J.).
[xliii][1953] 1 Ch. 810 at pp. 817, 818.
[xliv][1943] 1 Ch. 224, at p. 230; [1943] 2 All E.R. 7.
[xlv](1746) 3 Atk. 342.
[xlvi][1953] 1 Ch. 810, at p. 822.
[xlvii](1873) 8 Ch. App. 454; L.R. 7 H.L. 438.
[xlviii](1880) 16 Ch. D. 44, at p. 45.
[xlix][1964] 1 Ch. 136.
[l]Section 43 of the Local Courts Act, provides where relevant: 
(1) Subject to the next two succeeding subsections a person aggrieved by a decision of a Local Court on a matter may appeal to the Supreme Court therefrom. 
(2) Except as provided by the next succeeding section, nothing in the last preceding subsection contained shall be deemed to authorize an appeal by the Crown or the Administration against the dismissal of a complaint in a criminal matter. 
... 
(6) For the purposes of this section, “decision” includes an order or a sentence.