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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> TWGS v JMG & Ors [2000] EWCA Civ 282 (9 November 2000) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2000/282.html Cite as: [2000] 3 WLR 1910, [2001] WTLR 445, [2001] 1 All ER 97, [2000] EWCA Civ 282, [2001] Ch 568, [2001] 1 FCR 339

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Case No: 1999/0805
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CHANCERY DIVISION
MR JUSTICE BLACKBURNE
Royal Courts of Justice
Strand, London, WC2A 2LL
Thursday 9th November 2000

10. The judge went on to consider a number of authorities and accepted the submission of counsel for Winifred's executors that the subsection could not be construed so as to enable T to inherit. He said at page 92 D:
"While the rule of public policy obliges the court to disregard what would otherwise be the wrongdoer's entitlement under the statute, it does not require the court to go further. It does not enable the court, in the case of s 47(1)(i) any more than in the case of a will, to disregard the plain meaning of the relevant provision with a view, having disregarded the wrongdoer, to enable one person (in this case the plaintiff) to take rather than another or others. In a case such as the present it does not enable the court to ignore the requirement, if the plaintiff is to take, that RS should predecease the intestate, or to construe it to mean something different from the meaning which it plainly bears."
11. Having decided that T could not inherit pursuant to section 47(1)(i) as his father had not predeceased the intestate, he turned to consider whether Winifred's executors were entitled to take. The difficulty that they encountered was that issue survived Mr S and therefore section 46(1)(v) did not seem to apply. Mr Barker, counsel for Winifred's executors submitted that, even so, section 46(1)(v) should be construed to enable that to be done.
12. The judge accepted that the words of section 46(1)(v) required there to be no issue before brothers and sisters of the whole blood could take. However he concluded that it was appropriate to read the subsection as if the words "capable of taking" were included. It followed that, as he had concluded that neither R nor T were capable of taking, Winifred's executors could. He obtained support from Re: Scott (deceased), Widdows v Friends of the Clergy Corporation [1975] 2 AER 1033, [1975] 1 WLR 1260. At page 95 E he said:
"That decision provides a precise analogy. The fact that it concerned a case of disclaimer rather than forfeiture does not seem to me to be a material point of distinction. Mr Barlow did not suggest it was wrong: on the contrary he relied on this decision, albeit in relation to a different point. In my view, it provides a commonsense, if not entirely logical, answer to the problem posed by RS's disqualification from benefit. I propose to follow it in this case. If necessary (I do not think that it is) the same result is achieved by implying the words 'capable of taking' after the words 'no issue' in s 46(1)(v). The alternative, that Mr S's estate passes to the Crown as bona vacantia, would seem all the more perverse, given that the Crown in this case has indicated that it asserts no claim."
13. Counsel for T had submitted to the judge that, if it was permissible to ignore the strict wording of section 46(1)(v) to ensure that one of the classes in that section took rather than the Crown as bona vacantia, it must equally have been permissible to ignore the requirement that R should have predeceased the intestate by assuming that R did predecease the intestate or somehow adapting the wording of section 47(1) to enable T to take. The judge rejected that submission. He said at page 95:
"The second question is quite distinct from the first. The fact that it is possible to imply something into the language of s 46(1) to avoid the estate passing to the Crown as bona vacantia where next of kin are capable of taking does not mean that it is permissible to ignore, much less to distort, the clear language of s 47(1)(i) to achieve the result for which Mr Barlow contends."
14. My summary of the judgment does not do justice to its learning and clarity. It is sufficient as a lead in to my reasons for coming to the same result. My reasons are not, in all respects, identical to those of the judge, but that reflects further consideration and research by counsel since the judge gave his judgment and the resulting difference in the submissions.

The First Question - Is T entitled to inherit his grandfather's estate?
15. Mr Barlow first submitted that section 47(1)(i) had to be construed in accordance with the underlying intention of Parliament. The Court should not construe a legislative provision literally, if to do so would defeat the obvious intention of Parliament. Further the Court should strain against producing an absurd result or one which is irrational or illogical.
16. Mr Barlow then drew to our attention the structure of section 46. It provided for husbands and wives to be first in the queue; thereafter issue took before collaterals and collaterals before the Crown. It followed, he submitted, that it was the intention of Parliament that nearer kin should be preferred to remoter kin, and in particular, that issue should be preferred to collaterals. Section 47 was consistent with that approach, but it made clear that the junior generation could not compete with living senior members. As Harman J said in In Re Lockwood [1958] CH 231 at 234:
"The object of the two statutes (the 1925 Act and the Intestate Estates Act 1952) was to distribute the estate of the intestate among her next-of-kin, and not to prefer the more to the less remote ..."
17. It followed, Mr Barlow submitted, that it would be contrary to the expressed intention of Parliament to prefer Winifred's executors to T who was an issue of the intestate. The correct approach was that of Harman J in the Lockwood case when he refused to give effect to the literal meaning of section 47(5), since repealed, to arrive at a result which was absurd. The Court should construe section 47(1)(i) so that an issue of a child of the intestate could inherit provided that the child was prevented from doing so by reason of his death, disqualification or disclaimer.

18. Mr Barlow also criticised the way that the judge had read into section 46(1)(v) the words "capable of taking", but had not been prepared to read words into section 47(1)(i). He submitted that the judge's approach to construction was inconsistent and contrary to the expressed intention of Parliament.

19. Mr Barker submitted that section 47(1)(i) was clear. It expressed the intention of Parliament and there was no need, nor was it possible, to read into it any words that would allow T to take. I believe he is right.

20. Section 47(1) applies " where ... the residuary estate of an intestate .... is directed to be held on the statutory trusts for the issue of the intestate". In this case, section 46(1)(ii) so directs as two issue, R and T, survived. The terms of the trust are set out in subsection (i) of section 47 (1). The estate is held in trust "for ... any child of the intestate, who attains the age of 18 years ....." R qualified. The subsection goes on to name other beneficiaries under the trust as "all or any issue living at the death of the intestate who attain the age of 18 years or marry under that age of any child of the intestate who predeceases the intestate." Thus living grandchildren can take provided that their relevant parent is dead. To enable T to inherit the words "of any child of the intestate who predeceases the intestate" have to be construed as covering cases where the child is alive, but is disqualified or disclaims his interest. But that was not the intention of the draughtsman. The subsection goes on to state that the grandchild or grandchildren shall take "the share which the parent would have taken if living at the death of the testator" and concludes "and so that no issue shall take whose parent is living at the death of the intestate and so capable of taking."

21. The subsection emphasises that no issue can take if the parent is living at the death of the intestate. R was living and therefore the words of the subsection make it clear that T cannot inherit.
22. Mr Barlow submitted that the Court should disregard R, but that would not help as he was living at the death of the intestate. Further the Court could not assume that R was not living at the death of the intestate as that assumption would in this case be inconsistent with the murder that he carried out. The disqualification arises because he murdered his father. In any case the authorities such as the Cleaver case and In Re: Callaway, Callaway v Treasury Solicitor [1956] 1 Ch 559, provide that the rule of public policy is that the murderer is disqualified or struck out, not that his existence or the murder should be disregarded.
23. Mr Barlow accepted that T's right would be the same if R had disclaimed. In such a case there could be no rule of public policy which required the Court to disregard the true facts, namely that R was living at the time that the intestate died. The acceptance by Mr Barlow that T's position would be the same if R had disclaimed emphasises the major surgery that would have to be done to section 47(1)(i) to satisfy Mr Barlow's submissions. In effect the requirement that the father of the child had to predecease the intestate would have to be rewritten as a requirement that the father, for some reason, does not inherit. If that had been the intention of Parliament, the last part of the subsection would have been completely different.
24. I accept Mr Barlow's submission that it was the intention of Parliament that issue should take before collaterals. But that formulation disregards the clear intention of Parliament that a child of surviving issue cannot take in preference to his parent. There is nothing absurd in the result that if a surviving parent is prevented from taking by disclaimer or disqualification, the intestate's estate should pass, not to his child, but to others. If it was absurd, then I would not have expected the rule to exist that, in the case of a class gift, the share of the person excluded went to swell the shares of the remaining members of the class (see the Callaway case at page 564 and In re: Peacock (deceased) Midland Bank Executors and Trustees Co Ltd v Peacock [1957] 1 Ch 310 and the Scott case at page 1270D.)
4
25. Mr Barker drew our attention to the decision of the Oregon Supreme Court in In the estate of Mary Norton (deceased) [1944] 156 ALR 617 and [1945] 161 ALR 439. The facts in that case were equivalent to those in the present. The applicable law was not identical to that in this country, but the conclusion reached by the Supreme Court was the same as that to which I have come. I accept that the judgments of the Oregon Supreme Court do not seek to establish how section 47(1)(i) should be construed, but they do add to support to Mr Barker's submission that there is nothing absurd in construing that section so that the child of surviving issue cannot inherit his grandparents' estate even when the surviving issue is disqualified.
26. As Mr Barlow pointed out, Harman J did in the Lockwood case ignore certain words in section 47(5) of the 1925 Act because "he was convinced that Parliament could not have intended to promote those more remote over those nearer in blood." As he said at page 238, "I decline to come to a conclusion which would necessitate holding that first cousins twice removed might be preferred to nephews and nieces." In that case a new subsection had been introduced into the Act by amendment to clarify the law. Harman J held that "when read literally, the subsection had not achieved its purpose" and it was subsequently repealed. The judgment supports Mr Barlow's submission that a court can, when appropriate, disregard words in a statute, but that is all. That approach is not applicable in this case. To disregard the requirements in section 47(1)(i) that the children of issue cannot take if their parent survives the intestate, would require a complete rewording of that section.
27. Mr Barlow's submission, when analysed, was that Parliament did not have in mind, when enacting section 47(1)(i), circumstances where the parent did not predecease the intestate, but disclaimed or was disqualified. Therefore the Court should construe the section on the assumption that Parliament would have intended that the child should take in those circumstances. Although he may be right that Parliament did not have in mind that a parent might disclaim or be disqualified, it is not open to the Court to disregard the clear meaning of the section, particularly when the result cannot be said to be absurd or contrary to the expressed intention of Parliament. There is in my view no reason why the child should take in such circumstances. Take for example a case where a man had two sons living at his death. If he had made a will in the terms of section 47(1)(i), the authorities suggest that the issue of a disclaiming or disqualified son would not inherit as the whole estate would pass to the other son. Why should this Court assume that Parliament intended a contrary result should occur on an intestacy? I conclude that section 47(1)(i) should be given its literal meaning. The result is that T cannot inherit as his father survived the intestate.
The Second Question - Can Winifred's Executors' Inherit?
28. Before the judge Mr Barker submitted that Winifred's executors inherited as the trust which arose pursuant to section 46(1)(ii) had failed. It followed that Winifred's executors' could and did inherit under section 46(1)(v). That submission was accepted by the judge who interpreted the restriction in section 46(1)(v) that the intestate had to leave no issue as meaning that he had to leave no issue capable of taking.
29. Before us Mr Barker's primary submission was that section 47(2) applied. He submitted that as neither R nor T had attained an absolute vested interest, the residuary estate devolved and was held "as if the intestate had died without leaving issue living at the death of the intestate" (see section 47(2)(a)). It followed that section 46(1)(ii) to (vi) applied with the result that Winifred's executors' inherited under (v). That submission was not made to the judge.
30. Mr Barlow rightly did not object to that submission being advanced for the first time in this Court. He submitted that it was misconceived. He drew to our attention the five classes in section 46(1)(v) and that all but the third were qualified by the words; "but if no person takes an absolutely vested interest under such trusts". He submitted that the reason why the third class was not similarly qualified was because the sole type of vested interest contemplated, namely attaining 18 years of age and marrying, did not apply to grandparents. It followed that the words "absolutely vested interest" in section 47(2) should be given the same meaning. Thus the subsection only applied if the child failed to obtain an absolute vested interest because he did not attain the age of 18 or marry. In support he referred us to the judgment of Walton J in the Scott case at pages 1269 B to 1270 D.
31. I accept the logic of Mr Barlow's submission. It may be that the draughtsman of section 47(2) only had in mind that a child could fail to attain an absolute vested interest by reason of the conditions in section 47(1)(i) and it is for that reason that the third class in section 46(1)(v) contains no reference to an absolute vested interest. But the words of section 47(2)(a) are not qualified or restricted to particular events which would prevent the child attaining an absolute vested interest, and I do not believe it right to read into the subsection a qualification in the terms appearing in section 47(1)(i). To do so would mean that R would be considered to have attained an absolute vested interest even though he was disqualified from having any interest. Subsection 2 is wide enough to cover the present case. R did not attain an absolute vested interest because he was disqualified. T did not attain such an interest for reasons which I have already set out. The judgment of Walton J in the Scott case deals with the problem, but his conclusion does not form part of the decision. For my part I believe the better approach is that of Professor E.C. Ryder in The Conveyancer and Property Lawyer volume 40 at page 86. It follows that the residuary estate should be held as if Mr S had died without leaving issue, with the result that Winifred's executors' are entitled to Mr S's estate pursuant to section 46(1)(v).
32. For the reasons that I have given I would dismiss this appeal.
SEDLEY LJ:

33. Intestacy is not necessarily the result of improvidence. People may very well decide not to make a will because they are content with the way the intestacy rules will operate on their death. What they are not likely to anticipate is that their death will be brought about by the deliberate act of the adult son whom they expect to succeed to their estate. Most people in the situation of the two deceased parents in the present case, if told that in such an unimaginable event their son would be disqualified from inheriting and asked what they would then like to happen, would say that they would like their estate to go to their grandchild.

34. We have not had to be taken through the parliamentary history of sections 46 and 47 of the Administration of Estates Act 1925, which was of course a consolidating statute; but it is probable (I will explain later why I say that) that at no stage of its life did either the drafter or Parliament consider what was to happen if the lineal successor became disqualified from taking or - just as problematically - disclaimed. Had that useful analogue of the officious bystander, the alert backbencher, intervened in the debate to ask, the minister would have had to undertake to consider the matter and to return to the House with proposals. For this appears to be a casus omissus, a gap in the Act, and one which (subject to another possibility which I consider below) Parliament would most probably have filled in the way I have suggested.

35. But it does not follow that the courts may simply write in what they surmise Parliament has left out. A rectifying construction is one thing: Bennion, Statutory Construction (3^rd edition), section 268, gives instances where this mode of construction has been used to supply omissions; but against this (section 287) he instances cases where the gap is too large for it to be constitutionally possible for the courts to fill it: see Duo v Osborne [1992] 1 WLR 611, R v Horseferry Road Magistrates' Court, ex parte K [1996] 3 All ER 719. To close the present gap, in fact, would require us to go further than mere infilling: it would involve cutting back the provision, which is very plainly there, that a grandchild cannot inherit while his or her parent is alive. To this it may very well be replied that the entire disqualification of a son who kills his intestate parents is a judicial interpolation in a statute which says nothing whatever on the subject: so that to limit the effect to the killer, and to preserve the policy of preferring the less to the more remote, by treating his disqualification as equivalent in law to his prior death is not nearly so invasive of Parliament's role as first appears.

36. To take this course, however, would require an examination of the operation of the equivalent rule in the law of wills and involve a sweep of argument much greater than we have heard. It would also have to take account of the implicit adoption of the common law rule by the enactment in the Forfeiture Act 1982, ss. 1 and 2, of a power to mitigate its operation where the crime is not murder. It may be that one day this will have to be undertaken. For the present I concur, albeit with some reluctance, in the view of the other members of the court that the grandson cannot take.

37. It is consequently with sympathy for the grandchild's situation that I turn to the alternative claim of the estates of the sisters of the murdered couple. They too need something written into the Act if the estate is not to go to the Crown as bona vacantia. While Mr Barlow understandably protests at our doing for the sisters what we will not do for the grandson, there is no necessary parity between the two things and certainly no call for simple tit-for-tat reasoning. Even so, it seems to me that he has a point.

38. The objections to the addition to the requirement that the deceased should have left no issue of the words "capable of taking" are not of the same class as the objections to the grandson taking on the son's disqualification. As Simon Brown and Aldous LJJ have pointed out, s. 47 is shot through with the express qualification that issue who do not obtain an absolutely vested interest do not take. Although, therefore, the proviso to s. 46(1)(v) that the intestate has left no issue is not literally met, there is force in the argument that issue means issue capable of taking. If so, for reasons already explored, this does not include the grandson and the way is open for collateral succession.

39. But to adopt this approach is to consider the positions of the grandson and the sisters in isolation from one another. If one looks at them together, the answer is a lot less obvious, because it is at least conceivable that the want of provision for lineal succession and the want of provision for collateral succession in circumstances such as the present are both deliberate: in other words, that the very lapse in entitlement which is to break the automatic succession of issue is also intended to cut out the otherwise consequent collateral succession, enabling the Crown to step in and make an equitable allocation of the estate in what are ex hypothesi uncatered-for circumstances. This is, if nothing else, a consistently literal reading, albeit faute de mieux, of an Act for which, as we have seen, attempts at purposive reading can be treacherous.
40. What convinces me that it is also a tenable construction is that, going back to my alert backbencher, I do not believe for a moment that the minister's answer would have been that the legislation was deliberately so configured that in the event of a son's disqualification or disclaimer collaterals would step in and inherit in preference to a grandchild. No more was this the case in Oregon, where in Re Estate of Mary Norton 156 ALR 617 (1944) and 161 ALR 439 (1945) the identical legislative gap produced a judicial outcome inviting the criticism contained in the latter report at 449-50. In South Carolina, where it appears that the legislature (alerted perhaps by the history of Lizzie Borden) had foreseen this very problem, the legislative solution was that which I have surmised the United Kingdom Parliament might also have adopted, namely to jump a generation and let the grandchild inherit: see Rasor v Rasor 17 SE 545 (1934).
41. So here, where the grandson's entitlement has to be inferred, because of the want of provision about it, to have lapsed with his father's crime, there is something to be said for the view that a comparably literal reading of the collaterals' entitlement will redress the unfairness, not by robbing everyone of their interest in the estate but by allowing the Crown to dispense it as equitably as circumstances allow. If the Crown in such a situation were to follow the axiom of Harman J in Re Lockwood [1958] Ch. 231 that the policy of the law is to prefer the less to the more remote, nobody would be surprised.

42. I would therefore, for my part, hold that the estate in the present circumstances has become bona vacantia. I do so with deference to what is now a formidable body of judicial opinion to the contrary, but with the comfort that by agreeing (albeit hesitantly) with others about the inevitability of grandson's disentitlement, and by disagreeing about the sisters' consequent entitlement, I arrive at an outcome which is potentially less unjust than either.

SIMON BROWN LJ:
43. I agree with all that Aldous LJ has said and add a short judgment of my own only because of the skill and force of Mr Barlow's arguments on the appeal. His cri de coeur, it will be appreciated, is that whilst the court is refusing to stretch the language of the legislation to accommodate the innocent grandson's claim, it is nevertheless prepared to do just that to allow the sister's claim to succeed. That, he complains, is not merely unfair but is contrary to the plain underlying intention of the legislation which is to prefer issue to collaterals, in the same way that less remote next of kin are to be preferred to the more remote - see In Re Lockwood [1958] Ch. 231.

44. Powerfully though these arguments were formulated, I like my Lords feel unable to accept them. My reasons can be stated really very shortly.

45. The language of s.47(1)(i) - the only section under which the appellant can inherit - is in my judgment wholly unambiguous: "Issue ... of any child of the intestate" can only inherit (a) if their relevant parent "predeceases the intestate", (b) "the share which their parent would have taken if living at the date of the intestate", and (c) "so that no issue shall take whose parent is living at the death of the intestate ..." In short, the sub-section makes the same point no fewer than three times: the issue's parent must have predeceased the intestate.

46. There is simply no room for doubting the effect of this provision. Nor in my judgment is its effect as offensive as Harman J understandably found the effect of the short-lived s.47(5) to have been in In Re Lockwood.
47. By s.46(1)(v), Winifred's executors fall to inherit (under the "First" provision, she being a sister of the whole blood of the intestate) provided, most pertinently, that the intestate left no issue. The intestate here, of course, did leave issue, namely R and T, but it is at this point that s.47(2) comes into play. This provision, rather like s.47(1)(i), makes its point three times: unless the issue left attain "an absolutely vested interest", then the intestate is to be treated as having left no issue. True it is that the draftsmen almost certainly contemplated that the only reason for the non-attainment of an absolutely vested interest would be in the event of the issue not attaining the age of 18 or marrying under that age (see particularly in this regard the "Thirdly" clause of s.46(1)(v) as to grandparents). But that cannot justify cutting down the plain language of s.47(2) and applying it here to save the sister's interest, still less when to do so would leave the intestate's estate to the Crown as bona vacantia, (and would, of course, have that same result even had R been childless).
48. I well recognise that the appellant would prefer bona vacantia to the sister succeeding in her claim, in the hope (perhaps expectation) that the Crown would then in fact confer the benefit on him. This too, however, can provide no sound reason for giving s.47(2) the artificially narrow construction contended for by Mr Barlow.

49. For these reasons, which essentially just summarise in my own words those given by Aldous LJ, I too would dismiss this appeal.

Order: Appeal dismissed, order made under section II; nil contribution; legal aid assessment, application for permission to appeal to House of Lords refused.