In re Nelson (Deceased) [1963] SamoaLawRp 1; [1960-1969] WSLR 83 (8 August 1963)

[1960-1969] WSLR 83

SUPREME COURT OF WESTERN SAMOA

In re NELSON (DECEASED)

SUPREME COURT. Apia.
1963. 27, 28 June; 8 August.
MOLINEAUX C.J.

Will - Interpretation - Condition as to Religion - Whether severable -Uncertainty -Intention of testator.

Clause 20 of the testator's will was as follows:

"I DIRECT that, subject to the provisions enumerated in Clause 10 hereof and in other parts of this my Will referring to Tuaefu or the Tuaefu Trust, the Tuaefu Trust and all assets and other appurtenances thereunto belonging shall become the property of my grandson Olaf Frederick Nelson the eldest son born to my daughter Irene Gustava Noue on March 1st 1938 when he has reached the age of 25 or has completed his education whichever happens last PROVIDED THAT he will by then have acquired European status by the laws of Western Samoa and shall have assumed the surname of NELSON and shall have been brought up in and will continue to remain a professed adherent of a Christian denomination of the Protestant non-Conformist faith ALSO THAT he will not have caused himself by any act of his own to have become irreparably unworthy to fill the position where WHILE HOLDING Tuaefu as his own property by his own sole right he will realize that he has thus become the head of the family and appreciate as far as is conveniently possible the family home character of Tuaefu so long as any of my five daughters are alive AND IS able to maintain Tuaefu as a European home out of the funds provided for it and any additional revenue accruing to him from his own efforts AND PROVIDED THAT a sum of Five hundred pounds (£500) will be made available out of the Tuaefu Trust Funds as soon as conveniently possible without embarrassment for the benefit and on behalf of my granddaughter Leilani who is now resident in Tuaefa and One hundred pounds (£100) to each of my other grandchildren then surviving."

A notice of motion for interpretation of the will posed 2 questions-

(1) Whether the words "shall have been brought up in and will continue to remain a professed adherent of a Christian denomination of the Protestant non-Conformist faith" contained in the provisions of Clause 20 of the will relating to the gift of the Tuaefu Trust to the Defendant-grandson constitute a condition or conditions or limitation or limitations which are severable and whether one or any are valid or whether one or any are void for uncertainty or for any other reason.

(2) If the said condition or conditions or limitation or limitations or any of them are wholly or partly void does the said gift to the defendant-grandson fail or does he take free from the condition.

HELD:

1. That the words constitute a single condition subsequent; that the condition does not comply with the formula for certainty required by the authorities referred to and, therefore, void for uncertainty.

Clavering v. Ellison (1859) 7 H.L. CAS. 707 applied.

Sifton v. Sifton [1938] 3 All. E.R. 435;

In re Cross (1938) V.L.R. 221;

In re Crane (1950) V.L.R. 192;

Phipps v. Ackers (1842) 9 Cl. & Fin. 583 referred to.

2. That the defendant-grandson took the gift free from- the condition subject to its being divested if he dies without issue.

Clayton v. Ramsden [1943] 1 All E.R. 16; In re Allen [1953] 2 All. E.R. 898 considered.

MOTION for interpretation of will.

Sanders (of the New Zealand Bar), for plaintiffs.
McKay (of the New Zealand Bar), for defendant.
Phillips, for grandchildren of testator other than defendant.

Cur. adv. vult.

MOLINEAUX C.J. Notice of Motion for interpretation of the Will of Olaf Frederick Nelson of Apia, merchant, deceased, who died on the 28th February 1944. The testator, after appointing his five daughters to be the executors and trustees of his will dated 20th May 1943, gave devised and bequeathed all his real and personal property to his trustees upon certain trusts of which the principal one relates to the occupancy and conduct of his residential property situated at Tuaefu near Apia in the style of a European home. The trust property comprises both real and personal estate consisting of twenty-one acres of freehold situated at Tuaefu, a substantial residence thereon, shares and some furniture. The terms of the trust provide for the occupancy of Tuaefu by one of the five daughters until a grandson of the testator, Olaf Frederick Nelson, the eldest son born to the testator's daughter, Irene Gustava Noue attains the age of twenty-five years or completes his education, whichever happens last when it shall become his property in the circumstances that are set out in Clause 20 of the will. There is provision for a gift over in the event of the grandson dying before the age specified or in the event of his death after that age without issue, and further provision for the disposal of the trust property in certain eventualities. The proceedings are brought by the trustees excluding the said Irene Gustava Noue as plaintiffs for the interpretation of Clause 20 relating to the circumstances under which the trust is to become the property of the grandson who is named as defendant.

Clause 20 reads:

"I DIRECT that, subject to the provisions enumerated in Clause 10 hereof and in other parts of this my Will referring to Tuaefu or the Tuaefu Trust, the Tuaefu Trust and all assets and other appurtenances thereunto belonging shall become the property of my grandson Olaf Frederick Nelson the eldest son born to my daughter Irene Gustava Noue on March 1st 1938 when he has reached the age of 25 or has completed his education whichever happens last PROVIDED THAT he will by then have acquired European status by the laws of Western Samoa and shall have assumed the surname of NELSON and shall have been brought up in and will continue to remain a professed adherent of a Christian denomination of the Protestant non-Conformist faith ALSO THAT he will not have caused himself by any act of his own to have become irreparably unworthy to fill the position where WHILE HOLDING Tuaefu as his own property by his own sole right he will realize that he has thus become the head of the family and appreciate as far as is conveniently possible the family home character of Tuaefu so long as any of my five daughters are alive AND IS able to maintain Tuaefu as a European home out of the funds provided for it and any additional revenue accruing to him from his own efforts AND PROVIDED THAT