1 Ch. CHANCERY DIVISION.

75

seems to me clear both on the authority of the general principle SARGANT

and on the authority of In re Lord Orimthorpe (1) in the
Court of Appeal. There is in this case a total failure of the _^,
purposes for which conversion was directed, and it is quite °7^IfeS0N'
immaterial that for some period after the date of the testator's DYSON
death—or even, as might have happened, for some period HOPKI'NSON.
after the date of the death of the heir at law—a conversion
might have been necessary for the purposes of the will. The
property must be treated as being unconverted, and I decide
accordingly that the persons to take the testator's real estate
are the persons entitled to the real estate of the heir at law.

Solicitors : Jaques 6a Co., for Booth & Fisher, Huddersfield ;

Helliwell, Harby db Evershed, for Jubb, Booth & Co., Halifax ;
P. R. Christie, for Armitage, Sykes & Hinchcliffe, Huddersfield.
H. C. G.

In re BOULTER. SARGANT
J.
CAPITAL AND COUNTIES BANK v. BOULTER. ™}
Oct. 27, 28.
[1921. B. 1198.] —

Will—Construction — Gift of settled Fund to Infants — Condition subsequent

—Proviso prohibiting Infants Residence Abroad—Gift Over on Non-compli-
ance—Validity of Condition—Public Policy—Possibility of Compliance.

A testator by his mil made in 1916 having settled a share of his

residuary estate upon a son, and the son's children, provided that the
gift to the children was upon the express condition that they should
during their respective minorities be maintained in England, and should
not reside abroad except for periods not exceeding six weeks in each
year. Upon non-compliance with such condition in the case of any
such child, his or her share was to be forfeited, and accrue to the shares
of the other children, with a gift over in the event of non-compliance
in the case of all of them. At the date of the testator's death in 1917
the son had two infant children, whose mother was of German origin:—
Held, that the condition was a condition subsequent, that " abroad "
meant anywhere outside the British Isles, that the non-compliance
referred to meant the non-compliance of the parents, and that, so

(1) [1908] 2 Ch. 675.

0 2 1
70 CHANCERY DIVISION. [1922]

SARGANT interpreted, the condition, though not too uncertain to be enforced,

J- was void as being contrary to public policy, and tending to the possible
1921 separation of the parents from their children.
_ *-"-' In re Borwiclc's Settlement [1916] 2 Ch. 304 distinguished.
BOULTEH,
In re.
CAPITAL ORIGINATING SUMMONS.
AND

COUNTIES By his will, dated September 14, 1916, Stanley Carr

BANK Boulter, having appointed Reginald Stanley Lewis Boulter
BOULTEB. a n ( i Robert Abercromby Gordon to be executors thereof,
and the Capital and Counties Bank, Ld. (hereinafter called
" the trustees " ) , to be trustees thereof, by clauses 6 and 7
devised all his real and the residue of his personal estate unto
the trustees upon trust for sale and conversion, and after
payment thereout of funeral and testamentary expenses,
debts, legacies and duties, to divide the same into six equal
parts, and to hold one of such equal sixth parts upon trust
for his son Reginald Stanley Lewis Boulter for his absolute
benefit, and to hold the remaining five equal sixth parts upon
trust to invest each of them as a separate and distinct fund
in some or one of the modes of investment thereinafter
authorized. By clause 9 of his will t h e testator directed
t h a t one of such five equal sixth parts and the fund repre-
senting the same should be appropriated for the benefit of
his son Stanley John Boulter, and made a similar declaration
as to the other four parts in favour of his daughters therein
named. And by clause 10 the testator directed t h a t t h e
trustees should hold the settled fund of his son Stanley John
Boulter upon trust to pay the income to him during his
life. And from and after his decease and whether he should
survive him or die in his lifetime, upon trust as to both corpus
and income for the children of the said Stanley John Boulter
or any of such children or any of their issue in such shares
(if more than one) and in such manner as he should by any
deed or deeds or by his will or any codicil appoint. And in
default of such appointment, and so far as such appointment
should not extend in trust for the children of his same son
who being male should attain the age of twenty-one years,
or being female should attain t h a t age or marry in equal
shares, and if there should be only one such child, the whole
1 Ch. CHANCERY DIVISION. 77

to be in trust for that one child. But so nevertheless that SARGANT

J.
no child who or any of whose issue should take a share under
1921
any such appointment as aforesaid should take any share
BOULTETS,
of the settled fund remaining unappointed without bringing In re.
the appointed share into hotchpot and accounting for the C A P I T A L
AND
same accordingly, unless his son should by such appointment COUNTIES
BANK
direct the contrary. The will next contained the following v.
proviso : " Provided also that the gifts hereinbefore in BOTTLTEK.
clause 5 and this present clause declared in favour of the
children or child of my said son Stanley John Boulter are
given upon the express condition that such children or child
are or is at all times during their or his respective minorities
(both before and after my decease) maintained in England
and do not reside abroad except for periods not exceeding
six weeks in each year. And upon non-compliance with the
foregoing condition in the case of any such child, his or her
shares shall be forfeited and form an accretion in equal pro-
portions to the shares or share of the remaining children or
•child of my said son. And in the event of non-compliance
with the foregoing condition in case of all the children of
my said son or if there shall be no issue of my said son who
being male shall attain the age of twenty-one years, or being
female shall attain that age or marry I direct that my trustees
shall hold the settled fund of my said son and the share of
my grand-children's fund (if any) to which his said children
may be entitled under clause 5 hereof upon trust for my said
children, Reginald Stanley Lewis Boulter, Gertrude Edith Alice
Kathleen Boulter, Ethel Gladys May Bendall, Edith Mary
Ada Peard and Elsie Grace Boulter or the survivors or sur-
vivor of them for their absolute benefit in equal shares and
so that the share or shares accruing to each of my said children
shall be subject to the trusts thereby declared concerning
the share or settled fund of the same child." Under clause 5
of the will the children of Stanley John Boulter had a con-
tingent interest in a specific bequest of property described
by the testator as " the grandchildren's fund," but such
interest was stated to be " subject to the conditions as to
their maintenance education and residence in England
78 CHANCERY DIVISION. [1922]

SARGANT contained in clause 10 of this my will." By clause 11 the

remaining four shares of residuary estate and the invested
~v- funds representing the same were settled upon the testator's
In re. ' four daughters and their children and issue.
CAPITAL The testator died on January 5, 1917, and his will was
AND
COUNTIES proved by the executors on February 21, 1917.
BANK rpj^ testator's son Stanley John Boulter married on
BOULTER. May 28, 1910, in London Elsie Eugenie Meustsedt [sic] who
was at t h a t time of German nationality. There were two
children of the marriage, the defendants Hugh Herman
Boulter and John Clifford Boulter, aged ten and nine years
respectively.
Stanley John Boulter was a member of the Stock Exchange,
but in 1916, when the testator made his will, he was on active
service with the British Army. At the conclusion of the war
he returned to the Stock Exchange, but there was evidence
t h a t on account of depression in business his employment
there was likely to be terminated, and t h a t being a good
linguist, he intended to endeavour to obtain a business post
abroad, in which event he wished to take his family with him.
The plaintiffs, as trustees, issued this summons to determine
(inter alia) the following questions : (1.) Whether the con-
dition contained in clause 10 of the will prohibiting the
residence of the infants abroad was now in operation, or
whether it would only come into operation on the death of
their father Stanley John Boulter; (2.) whether, if now
operative it was void for uncertainty or as being contrary
to public policy ; (3.) whether if not so void the residence
of the infants abroad for more than six weeks while in the
custody of their father and without the exercise of any
volition on their part would amount to non-compliance with
the condition . . . . ; (5.) whether the word " a b r o a d "
included parts of the United Kingdom outside England.
The defendants were the two infant children, Hugh Herman
Boulter and John Clifford Boulter, and Reginald Stanley
Lewis Boulter, Ethel Gladys May Bendall and Elsie Grace
Boulter, a son and two daughters of the testator entitled
under the gift over upon non-compliance with the condition.
1 Ch. CHANCERY DIVISION. 79
Jolly for the plaintiffs. SARGANT
J.
J. W. F. Beaumont for the infant defendants. The con-
1921
dition is a condition subsequent, and is void on any one of
BOULTER,
three grounds, either as being (1.) too uncertain; (2.) contrary In re.
to public policy; (3.) impossible of compliance by the infants. CAPITAL
AND
The expression " abroad " is too vague ; it is not clear COUNTIES
to what it extends, or whether it includes or excludes BANK v.
Scotland or Ireland or the Channel Islands : Glavering v. BOUI/TEB.
Ellison. (1)
On the question of public policy, it is a recognized duty
on the part of a father to bring up his children with him.
But in the present case the father may have to go abroad
for business reasons, in which case he could not take the
children with him, if this clause is good, without causing a
forfeiture of their interests. A condition is bad if it hinders
a man from doing his duty. Again such a condition would
tend to embarrass the Court in dealing with its wards, and
the children may be made wards at any time: In re
Sandbrook. (2)
Thirdly, the condition is imposed on two children aged
nine and ten, and they cannot possibly comply with it of
their own volition. A condition imposed upon a person
who cannot freely perform it is bad: Wilkinson v.
Wilkinson (3); Mitchel v. Reynolds (4) ; Partridge v.
Partridge. (5)
Hart for the defendants entitled under the gift over. The
condition is valid. It must be construed in the light of the
surrounding circumstances as known to the testator. He
was most anxious to prevent the children from being taken
to Germany by their mother to be educated, or to any other
part of the world where German influence might prevail, a con-
tingency which he thought might occur if his son was killed.
He desired them to be brought up within the jurisdiction of
English law, and such an intention is in accordance with
public policy. The prohibition is addressed to the parents,

(1) (1857) 8 D. M. & G. 662 (3) (1871) L. R. 12 Eq. 604.

(C. A.); (1859) 7 H. L. 0. 707. (4) (1711) 1 P. Wms. 181.
(2) [1912] 2 Ch. 471. (5) [1894] 1 Ch. 351.
80 CHANCERY DIVISION. [1922]

SARGANT and as such is good, and the non-compliance referred to must

J.
be" that of the parents: In re Berwick's Settlement. (1)
1921
[SARGANT J. That was a case not of a condition
BOULTER,
In re.
subsequent, but of a n original limitation.]
CAPITAL The argument for the infant was there p u t on the ground of
AND
COUNTIHS public policy, and on the true construction of the will this
BANK is a conditional limitation.
v.
BOULTEK. As to impossibility, all the cases referred to were cases
where a person was called upon to do something, and the
condition operated if he refused or neglected so to do ; a n
infant cannot refuse or neglect.
A condition precedent cannot be avoided on the ground
of public policy. The property is given to the children so
long as they reside in England, and if they do not, then
over : Partridge v. Partridge. (2)

SARGANT J. In this case I have to determine whether a

condition with regard to the residence, education and main-
tenance of certain children is void or not. The first question
on the summons is whether the condition in question has
come into operation now or whether it will only come into
operation on the death of the children's father. As t o t h a t
I do not think there is any doubt. The will is the will of a
Mr. Stanley Carr Boulter. He had several sons and several
daughters, and he first of all provides for the children of
one of his sons, Cyril Stanley Carr Boulter, a fund of some
8000Z. stock, and by clauses 4 and 5 he provides t h a t a fund
which he describes as his " grandchildren's fund " shall be
applicable for the benefit of his son Cyril's children and then
in case of failure of those children that the fund is to be held
" upon trust for the children of my daughter Ethel Gladys
May Bendall and of my son Stanley John Boulter for their
absolute benefit," but subject in the case of the infant
defendants " to the conditions as to their maintenance,
education, and residence in England contained in clause 10
of this my will." That is a contingent interest which may
fall into the trust fund which I have already dealt with, and
(1) [1910] 2 Cli. 30*. (2) [1894] 1 Cli. 351.
1 Ch. CHANCERY DIVISION. 81

it is suggested that the language of that gift may have some SARGANT
J.
influence on the language of the gift with which I have to
1921
deal. In my judgment however there is nothing in that which
BOULTER,
casts any light upon the trust subsequently contained in In re.
the will of the main fund with which I have to deal. By CAPITAL
AND
clause 10 of the testator's will, which is the material clause COUNTIES
BANK
for this purpose, he directed that his trustees were to hold v.
the settled fund of his son Stanley John Boulter—which as BOULTER.
a matter of fact was a share of the residue of his estate—
"upon trust to pay the income thereof to him during his life
and from and after his decease, and whether he shall survive
me or die in my lifetime upon trust as to both corpus and
income for the children of my said son Stanley John Boulter
or any of such children, or any of their issue (if more than one)
and in such manner as he shall by any deed or deeds or by
his will or any codicil thereto appoint, and in default of such
appointment and so far as any such appointment shall not
extend in trust for the children of my same son who being
male shall attain the age of 21 years, or being female shall
attain that age or marry " ; and then there is a hotchpot
clause. Then comes the proviso upon which, the present
question turns : " Provided also that the gifts hereinbefore
in clause 5 "—that refers to the grandchildren's fund—" and
this present clause declared in favour of the children or child
of my said son Stanley John Boulter are given upon the
express condition that such children or child are or is at all
times during their or his respective minorities (both before
and after my decease) maintained in England and do not reside
abroad, except for periods not exceeding six weeks in each
year. And upon non-compliance with the foregoing condition
in the case of any such child his or her shares shall be forfeited
and form an accretion in equal proportions to the shares or
share of the remaining childi*en or child of my said son."
Then there are other gifts to which I do not think it necessary
to refer.
That being so, the present position of affairs is this. The
son, Stanley John Boulter, was married in the year 1910
to a German lady and at the time the will was made he
82 CHANCERY DIVISION. [1922]

SARGANT was away in the war fighting and no doubt the condition of
the will had some reference to those facts. Since the con-
1921
clusion of the war he has returned to England ; he has been
BOULTEB,
In re. engaged on the Stock Exchange, but owing to the bad times
CAPITAL and the lack of business on the Stock Exchange he finds that
AND
COUNTIES his employment is failing him. He has a certain gift or
BANK
v.
knowledge of foreign languages and he thinks that the best
BOULTER. form of employment that he can engage in is to go abroad

and make use of that special knowledge. He now desires

to know whether if he goes abroad and takes his wife and
children with him, which he would naturally desire to do,
the result would be that his children will forfeit the interest
given to them under clause 10.
The first question to determine is whether the condition in
question is a condition precedent or a condition subsequent.
As to that I have no doubt whatever. There is a clear gift
to the children which vests the property in them on their
attaining twenty-one or, in the case of daughters, marrying.
There is superadded to that gift a gift which is described
by the testator himself as being a gift over on forfeiture.
In my judgment the condition in question is a clear condition
subsequent. That being so it is said that I ought not to
favour the condition subsequent if the gift is liable to fail
on any one of several grounds. Three grounds have been
suggested as grounds upon which this gift may fail. The
first is uncertainty, the second is that it is contrary to public
policy, and the third is that there is an impossibility in the
children electing whether to comply or not to comply with
the condition.
With regard to uncertainty I feel considerable difficulty.
The gift is certainly not as uncertain as in the great case of
Clavering v. Ellison. (1) There there was a difficulty in deter-
mining what was meant. But at the same time I think
this will is not by any means a clear one. When the testator
talks of the children being maintained in England, with
regard to that I think there is no reasonable doubt. Then
he says " and do not reside abroad except for a period not
(1) 8 D. M. & G. 662 (0. A.); 7 H. L. C. 707.
1 Ch. CHANCERY DIVISION. 83

exceeding six weeks in each year." What does that mean ? SARGANT
J.
Is " abroad" contrasted with England or has the word
1921
" abroad " the ordinary meaning in the English language ?
BOULTER,
Mr. Hart says that " abroad" means anywhere out of In re.
England. So that if the children went for eight or ten weeks CAPITAL
AND
to Scotland there would be a forfeiture. I do not think COUNTIES
BANK
that contention can be sound. The word "abroad" is not v.
satisfied by a transference to some other part of these islands, BOULTER.

although it may be that the children are taken out of the

English jurisdiction. The word " abroad " can never be used
by anybody in talking of a person who has gone to Scotland
nor, I think, of a person who has gone to Ireland rebus sic
stantibus. There is therefore some little difficulty in deciding
whether " abroad " means out of England, or means as it
ordinarily means, outside the British Islands. I think myself
it must mean outside the British Islands. But there is a
certain degree of uncertainty, and clearly it is uncertain
enough to make me uncertain whether it is certain or not,
and if I had no other ground upon which to decide the case
I think I should have reserved judgment and taken a good
deal of time and trouble in thinking that matter out.
But there is a second point, the question of public policy : is
it contrary to public policy that children to whom interests
are given should be deprived of those interests in case they
follow the fortunes of their parents should the parents go
abroad ? In my judgment such a condition is clearly
contrary to public policy. It seems to me very liable to
encourage a father to neglect his duties towards his children
in such a case as has arisen here, and a circumstance that
I do not overlook is the possibility of the children coming by
their next friend to the Court and putting the case to the
Court whether they should go abroad with their father and
lose the property or remain in England retaining the property
and losing the advantages of being with their parents. It
seems to me that the whole tendency of this provision is
one which in many sets of circumstances, including the
circumstances now disclosed, might have a very prejudicial
effect indeed on the position of the infants and upon the
84 CHANCERY DIVISION. [1922]

SABGANT judgment that has to be exercised by their parents for

their benefit.
1921 The third objection that is taken is that the clause cannot
BOULTEH,
In re. be valid, because it seeks to take away something from the
CAPITAL infants on an exercise by the infants of a judgment or deter-
AND
COUNTIES mination which they are incapable of exercising. In support
BANK of that contention several cases have been referred to including
v.
BOULTER. Partridge v. Partridge. (1) On this point I agree there is
difficulty. If the " non-compliance with the foregoing con-
dition " is meant to be a non-compliance on the part of the
father or parent, it appears to me that the argument for the
clause being void as contrary to public policy is considerably
strengthened. But in any case, even if that be so, even if
the non-compliance originally had to be the non-compliance
of the father or the parent, I am quite sure it is clear that
non-compliance on the part of the children after the death of
the father and mother is not aimed at or referred to. Here
again this is not anything like so strong a ground as the
second ground that I have mentioned, and I prefer with
regard to that to withhold my judgment. I think I ought
to say this. Counsel for the other children said a great deal
about the mother being a German mother and it being
undesirable for anybody to leave England and become subject
to German culture. But I am not aware that there is any
question of that kind which can be usefully considered here.
The clause is not limited in any way to Germany, it is a pro-
hibition as to the whole world against the British Islands,
and I do not think that in determining the matter I ought
to have any regard to the fact that some part of the world
outside the British Islands is subject to German culture. I
think I ought to say also that very great stress was laid
by counsel on a decision of Eve J. in In re Berwick's Settle-
ment. (2) I intimated to him when he cited the case and after
he had gone through it at some e length that it did not seem
to me to apply, because the question there was not a ques-
sion of a condition subsequent at all, and after having looked
at the case again I am confirmed in the opinion. It seems to
(l) [1894] 1 Ch. 351. (2) [1916] 2 Ch, 304.
1 Ch. CHANCERY DIVISION. 85

me that the learned judge there had to deal with the case SARGANT J.
of something entirely different from a condition subsequent— 1921
namely, the case of a defined period during which a certain BOUI/TEK,
power might be exercised. That is all. The considerations In re.
applicable to a question of that kind seem to me to be totally CAPITAL
AND
different from the considerations applicable to such a case COUNTIES
BANK
as the present where there is a clear original vested gift in v.
certain defined persons, and there is then a clear condition BOULTER.
subsequent taking the benefits away from them on specified
conditions.
I declare that although the conditions are operative during
the life of the parent they are void.

Jolly asked that the plaintiffs should be entitled to their

costs, charges and expenses as trustees of and incidental and
preliminary to the summons, on the ground that the usual
practice of the taxing Masters was to disallow the costs of
opinions on cases given before the commencement of
proceedings.

SARGANT J. I am asked to say that because the plaintiffs

are trustees of a particular class—namely, a corporation—the
Court ought to give them extra costs. I am surprised to
hear that the taxing Masters disallow trustees costs of opinions
in such cases, but I cannot make any different order in the
case of a bank from that of any other trustee.

Solicitors: Stanley, Hedderwick <& Co.; Budd, Johnson,

Jecks & Colclough.
H. L. L.