Nelson, Re [1964] WSLawRp 4; [1960-1969] WSLR 109 (9 October 1964)

[1960-1969] WSLR 109

IN RE WILL OF OLAF FREDERICK NELSON

COURT OF APPEAL. 1964. 21, 22, 23, July; 9, October. HUTCHISON J. McGREGOR J. T.A. GRESSON J.

Will - interpretation - whether certain provisions constituted conditions or limitations - condition as to religious upbringing - severability - whether void for uncertainty - intention of the testator - public policy.

This was an appeal from the judgment of the Chief Justice on a motion to determine certain questions arising upon the interpretation of the will of Olaf Frederick Nelson of Apia, Merchant, deceased, who died on 29 March 1944 leaving his last will dated 20 May 1943. The facts appear fully in the judgments herein.

The two questions for determination by the Chief Justice were:-

"(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 clause 20 of the will relating to the gift of the Tuaefu Trust to the defendant (grandson of the testator and respondent in these proceedings) 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 fail or does the defendant take the said gift free from the condition."

It was agreed that the respondent had in the years intervening since the death of the testator been brought up in the Roman Catholic religion, and still adhered to that religion; and that he had fulfilled all of the conditions set out in clause 20 of the will with the exception of the condition relating to religion.

The answers were:

"(1) The words constitute a single condition subsequent that is void for uncertainty.
(2) The defendant takes the gift free from the condition subject to its being divested if he dies without issue."

The appellants (four of the daughters of the testator who, together with their sister, the respondent's mother, would as on an intestacy succeed to the property referred to in clause 20 of the will in the event of the respondent not succeeding) appealed against the determination of the Chief Justice. Three general submissions were made on behalf of the appellants: first, that the words in issue in clause 20 of the will constituted two general conditions or limitations; second, that the first condition or the first part of the condition was a condition precedent; and third, as the respondent had not complied with that condition the gift failed.

On the other hand, the respondent submitted that the requirements as to religious upbringing and continuing adherence were parts of a single composite condition, and were not two separate conditions; secondly, the condition was a condition subsequent and was void for uncertainty; and thirdly, if contrary to the first submission there were two separate and distinct conditions, both were subsequent and void for uncertainty, the first being void also on the grounds of public policy.

HELD: (1) (Per Hutchison J. and McGregor J.) The words constituted one composite and indivisible condition subsequent which was void for uncertainty with the result that the respondent took the gift free from the condition subject to its being divested if he died without issue.
(2) (Per McGregor J.) The gift in favour of the respondent vested in interest on the death of the testator, and all the conditions attached to the gift by the provisions of clause 20 of the will were conditions subsequent.
Phipps v. Ackers. (1842). 9. Cl. and Fin. 583; [1842] EngR 926; 134 E.R. 453; Clayton v. Ramsden [1943] 1 All E.R. 16; In re Lockie [1944] NZGazLawRp 103; [1945] N.Z.L.R. 230, In re Cross, Law v. Cross 187; Bickersteth v. Shanu [1936] 1 All E.R. 227; Attwater v. Attwater [1853] EngR 1043; (1853) 18 Beav. 330; 52 E.R, 131; Public Trustee v. Gower [1924] NZGazLawRp 40; [1924] N.Z.L.R. 1233 and other cases referred to.
(3) (T.A. Gresson J. dissenting) The religious condition "shall have been brought up in and will continue to remain a professed adherent of a Christian denomination of the Protestant non-Conformist faith" constituted two severable conditions; the former relating to upbringing being a condition precedent and the latter relating to continued adherence in such faith being a condition subsequent. That the condition precedent was not void as being uncertain or contrary to public policy, and as the respondent had failed to satisfy this condition he was not entitled to the Tuaefu Trust, which should be divided as on an intestacy equally between the testator' s five daughters.
Phipps v. Ackers (supra) and Public Trustee v. Gower supra), as applied, criticised.

Appeal dismissed.

APPEAL from the judgment of Molineaux C.J. on a motion for interpretation of a will.

Sanders (of the New Zealand Bar) for appellants,

McKay (of the New Zealand Bar) for respondent.

Phillips for grandchildren other than respondent was excused from attendance.

Cur. adv. vult.

HUTCHISON J.: In this case two questions were put to the Supreme Court of Western Samoa in relation to the will of the late Olaf Frederick Nelson by the executors and trustees of his will. The particular clause of the will which presented the difficulty was clause 20. The case came before the learned Chief Justice on the 27 and 28 June 1963, when he reserved his decision. On the 8 August 1963, in a long and careful judgment, he answered the questions put to the Court. The essential facts are fully set out in his judgment and in the judgments of my brethren, which I have had the opportunity of reading, and it is unnecessary for me to state them; but it is convenient that I set out the questions and the answers to them of the learned Chief Justice. The questions were:

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 relating to the gift of the Tuaefu Trust to the defendant expressed in the following words in clause 20 of the said will namely: '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' 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 fail or does the defendant take the said gift free from any condition or limitation?"

The answers were:

"1. The words constitute a single condition subsequent that is void for uncertainty.
2. The defendant takes the gift free from the condition subject to its being divested if he dies without issue."

Against this determination appellants appeal.

Clause 20 of the will, from which come the words set out in question 1, reads 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 realise 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 (2500) 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 Tuaefu and one hundred pounds (100) to each of my other grandchildren then surviving."

The argument was a very involved one, and I think it is as well to try to set out thus early in this judgment the principal submissions made for appellants and for respondent respectively.

For appellants, it was argued first that the words with which we are primarily concerned do not constitute a single condition but constitute two severable conditions, while for respondent it was argued that they constitute one composite condition. The argument for respondent went on that the one condition was a condition subsequent and void for uncertainty. Counsel for appellants, while forcefully contending that the words constitute two severable conditions, found himself, if he failed in that submission, unable to present any argument against the view taken by the Chief Justice in the Supreme Court that the condition, as a single condition, would be a condition subsequent, and he conceded, as he did in the Court below, that as a single condition subsequent, it would be void for uncertainty.

Then it was contended for appellants, following on their submission that the words comprise two severable conditions, that the first condition is a condition precedent and is a valid condition. If this should be the case, it was conceded for respondent that he did not comply with that condition, and therefore that the gift to him would fail. But it was contended for him first that, even if there are two severable conditions, both of them are conditions subsequent and both are void for uncertainty, the first being void also on the grounds of public policy, with the result that respondent would take the gift free from these conditions. In connection with this contention came the discussion as to the effect of the rule in Phipps v. Ackers. 9 C1. and F. 583. Then it was contended for him secondly that, even if there are two conditions and even if the first is a condition precedent, it is not a valid condition precedent but is void on the ground that it is contrary to public policy, in which case it was said that the gift would take effect as to personalty but would fail as to the interest in the land. If one reached that point in the argument, the contention which appellants put forward is that, if the first condition, considered as a condition precedent, is void as being contrary to public policy, the whole gift to respondent, as to personalty as well as to realty, would fail.

I turn then to the first of these opposing contentions, on which the question is whether the words with which we are concerned, "shall have been brought up in and will continue to remain a professed adherent of a Christian denomination of the Protestant non-Conformist faith" constitute one composite condition or two severable conditions. This, as Mr Sanders said, is a pure question of construction.

On this question three cases were extensively discussed, Clayton v. Ramsden [1943] AC 320; [1943] 1 All ER 16, In re Lockie (Deceased), Guardian Trust and Executors Co. of NZ Ltd and Ors v. Guy and Ors [1944] NZGazLawRp 103; [1945] NZLR 230 and In re Cross, Law v. Cross [1938] VicLawRp 28; [1938] VLR 221.

In Clayton v. Ramsden (supra) the testator inserted in his will a condition subsequent whereby his daughter would forfeit her interest under the will if she married "a person who is not of Jewish parentage and of the Jewish faith". The daughter, after the death of testator, married a man who was neither of Jewish parentage nor of the Jewish faith. The contention for appellants before the Lords was that the terms "of Jewish parentage" and "of the Jewish faith" were both so vague that the condition was void for uncertainty. A preliminary question however was raised whether the whole expression quoted constituted one condition or whether the words imposed alternate conditions upon the happening of either of which a forfeiture would occur. This might have been of importance in the case, because it was suggested for respondents that, if there was no uncertainty as to one of the qualifications and the husband did not possess it, the forfeiture clause would operate. Lord Russell of Killowen dealt with this preliminary question at p. 18 in the All England Reports, D E, and held that there was only one condition of forfeiture. Lord Wright, at p. 20 A, referred to the defeasance clause as being "one and indivisible'. Lord Romer, at p. 22 H, referred to the qualification of the permissible husband as being a composite qualification and at the top of p. 23 said that it was impossible to split up the forfeiture clause. Lords Atkin and Thankerton agreed with Lord Romer.

In In re Lockie (supra) the testator gave his grandson, J.P.W. Gray, a share of the residue in his estate, directing that that share should vest in the grandson upon his attaining the age of 25 years. He declared a gift over "in the event of his not being brought up and educated in the Protestant faith and not adhering to the Protestant faith at the time of his attaining the age of 25 years". Later he expressed this disqualifying provision in different words, when he stated his intention that the grandson should receive the share devised and bequeathed to him when he arrived at the age of 25 years "provided he shall have up to and at that time adhered to the Protestant religion". Mr Justice Smith thought that the testator did this to make his intention clear beyond doubt by further repetition, but pointed out that the two statements are on their face substantially inconsistent with each other. The opinion of the learned Judge, which opinion decided the case, appears at p. 241 line 40 -

"In my opinion, when a testator who intends to declare that a gift shall be divested unless the legatee adheres to a prescribed form of religious faith makes one statement of the event or events upon which the forfeiture shall take place and the gift over shall operate and then, later in his will, purports to restate that condition of forfeiture but does so in inconsistent language, and the reconciliation is not clearly apparent, the Court should held that the event or events upon which the gift is to be forfeited have not been expressed with the precision which is required by the law, and, consequently, that the condition or conditions of forfeiture are void for uncertainty. In my opinion, that view applies in this case and on this ground alone the conditions expressed by the testator are void".

He, however, went on to say that other contentions were submitted and argued on both sides upon the basis that the conditions stated by the testator were intelligible when viewed as separate conditions, and he went on to deal with those contentions, assuming for the purpose that the two conditions or two branches of the one condition were severable - "I assume, therefore, that the various conditions stated are severable" - p. 242. 1.3. Counsel for J.P.W. Gray had submitted that the conditions or branches of the condition were indivisible. Counsel for the other defendants had contended that they were separate and severable. The learned Judge, as we have seen, came to no conclusion on the matter. He did not even discuss the grounds on which it had been submitted that the conditions were severable.

In In re Cross (supra) there was a gift in remainder to the children of the testator's son "provided they are brought up and shall remain in the Protestant Faith failing which" the property was to go elsewhere. There was no discussion in that case as to the possibility of severance, and the words were treated by all counsel and by the Judge as constituting but one condition, for reasons unconnected with any question of construction.

Mr Sanders contended that the beneficiary must satisfy two separate tests, tests to be satisfied at different times, the one, as to upbringing, at the latest at the age of 21 years, and the other, as to continuance, from that time onward; and he pointed out that the responsibility for satisfying the tests was in the hands of two different persons, that relating to upbringing in the hands of his parents or guardians, and the other in his own hands.

I understood him also to submit, because of an argument that he anticipated on another aspect of the case, that it was a pointer toward there being two severable conditions, that the validity of the two conditions, or two branches of the one condition, might be attacked on different grounds, the first branch being possibly susceptible of attack on grounds of public policy and the second not being so susceptible. In my opinion, that consideration is irrelevant. What we are concerned with in any question of interpretation of a will appears in the speech of Lord Romer in Perrin v. Morgan [1943] AC 399, 420 -

"My Lords, I take it to be a cardinal rule of construction that a will should be so construed as to give effect to the intention of the testator, such intention being gathered from the language of the will read in the light of the circumstances in which the will was made."

What contentions counsel may care to make on the terms of a will afterwards can give no assistance as to the intention of the testator at the time he wrote the words.

Mr McKay, submitting that the words used treat the requirement as a single condition, pointed out that the two verbs are linked by "and" and share a common predicate. He said that the requirements of upbringing and continued adherence are consecutive with no gap between them.

In my opinion the words constitute one indivisible condition. I set out again, as they are set out in the first question before the Court, both the condition with which we are concerned and the immediately preceding conditions:

"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...."

In my opinion, however, the conditions as to the acquirement of European status and the assumption of testator's surname do not assist us on this point. I do not think that the words "by then" in relation to those conditions apply to the condition as to religious faith. The suggestion is that they may apply to the part of that condition relating to respondent's upbringing, but I do not think that they do, for the reason that those words are apt to apply to the acquisition of European status and to the assumption of the testator's surname, which might or might not occur by the relevant time, but are not apt to apply to the process of being "brought up", which would necessarily have been completed prior to that. As respondent was under six years of age at the time of testator's death, it was natural and logical that, in the condition as to religious faith, testator should refer first to his upbringing; and the fact that he did that does not, in my opinion, suggest that the condition is divisible. The only point at which the two parts of the condition could be divided would be at the end of the period of upbringing, and that would be, at the latest, at 21 years of age. It was when respondent reached the age of 25 years, or completed his education whichever happened last, that the Tuaefu Trust was, in the words of the testator, to "become (his) property". Both parts of the condition, if it were a good condition, had to be seen by the trustees at that particular time to have been complied with. There is a change of tense here, from the future perfect to the future, in the use of the words "will continue to remain"; but this change of tense is accounted for by the fact that the testator intended the second branch of the condition to cover not only the period from the end of the grandson's upbringing until the Tuaefu Trust "became (his) property" but also beyond that time, and accordingly I do not think that the change of tense points to severability. It is true, as Mr Sanders said, that the test in relation to upbringing could have been applied at the age of 21 years, but that was not the time at which it had to be applied; the time at which the trustees had to apply it was when respondent was qualified by age to succeed to the estate. There was no gap of time in which one or other of the two branches of the condition did not apply. The use of the words "continue to remain" also tends to show the indivisibility of the two branches of the condition, showing as it does that the testator at this point, where he was dealing with the second branch of the condition, was also looking back at the first branch. If it were possible to divide the condition at the point of time when Tuaefu was to "become (respondent's) property", it might then be possible to say, subject of course to ether arguments presented, that the first part of it was a condition precedent, the latter part being certainly a condition subsequent; but the clause does not permit of any such division as that. To do that, one would have to take a view that testator used the words "brought up" as covering the whole period of respondent's life up to the age of 25 years or possibly later; and I do not think that there is any justification for that, and neither counsel was prepared to suggest it. If the clause were to be divided at all, it would have to be divided at the end of respondent's upbringing, at the latest when he was 21 years of age, and in my opinion it cannot be divided there, having regard to the fact that he was not to come into the estate until he was 25 years of age.

For the reason that the question of divisibility or non-divisibility was not decided in In re Lockie or In re Cross I do not think that any material help is to be obtained either way from those cases. I do, however, say this.

This case, in my opinion, is a stronger one then In re Lockie for holding the condition to be indivisible. While in my view there is in this case no gap of time between the two branches of the condition, that would not necessarily have been so in In re Lockie. In that case, while the second statement of the condition refers to J.P.W. Gray's having "up to and at that time adhered to the Protestant religion" the earlier statement of the condition refers to his "not being brought up and educated in the Protestant faith and not adhering to the Protestant faith at the time of his attaining the age of 25 years". This earlier statement of the condition thus allows for a gap between the completion of his education and his adhering to the Protestant faith at the time of his attaining 25 years.

The view which I have taken does, I think, receive some support from Clayton v. Ramsden. Mr Sanders said that, as far as the beneficiary was concerned in that case the condition was one only against her marriage to a certain type of man, and that the two branches of the condition related to that man and not to her. That, of course , is correct, but their Lordships, in saying what they did looking at the condition not as it affected her but as it affected the permissible husband, as appears clearly enough from the speeches of all three of them who expressed separate opinions on the point. Both Lord Russell of Killowen and Lord Romer said that to treat the condition as divisible would be contrary to the testator ' s intention as appearing from his language. That was quite clear in that case, that so to treat it in this case, where the second branch of the condition is a continuing one, I still think that so to treat it in this case also would be contrary to testator's intention as appearing by his language. It is to be remembered that when we are here concerned with is the intention of the testator when he wrote the words and not with what the result turns out to be. Lord Wright's words at p. 20 of the report of Clayton v. Ramsden are, mutatis mutandis, applicable:

"It may be that Clayton, however unobjectionable in other respects, would not have been welcome to the testator because of his race and religion, and it may be that in this way the intention of the testator was frustrated. But that is not the question".

So here, it is not the question whether treating the clause as indivisible would in the result frustrate the testator's intention; the question simply is what was his intention as disclosed by the language used in the clause.

I therefore agree with the view taken by the learned Chief Justice in the Court below on this issue. His Honour in his judgment then went on to consider whether the one condition should be treated as a condition subsequent and held that it should be. That conclusion in my opinion was the correct one in general for the reasons given by him, and in particular because the condition was to continue to operate as a divesting provision during the life of respondent even if he had complied with it up to the time when Tuaefu, "became his property", and that conclusion was not challenged in this Court. When it was conceded, as it had been before the Chief Justice as well, that [text not clear] as a condition subsequent, the one composite condition will be void for uncertainty with the result that respondent would take the gift free from the condition.

For these reasons I would dismiss the appeal.

The Court by a majority, Gresson J. dissenting, dismisses the appeal. For myself I would be prepared to answer the questions just as the learned Chief Justice answered them, but my brother McGregor, while he has expressed his agreement with the view I have taken, arrived at his conclusion in the first place on a consideration of the second set of contentions put forward and has on that account submitted a slightly varied answer to the first question. The answers submitted in his judgment equally suit my view and they are therefore adopted as setting out the judgment of the Court.

As to costs, appellants were fully justified, in this involved case, in prosecuting their appeal. With active parties to the appeal are therefore allowed their costs on the appeal out of the Tuaefu Trust. Having regard to the matters referred to by the Chief Justice in dealing with costs when the case was before him, the circumstances being the same on the appeal, each of these parties is allowed 350 guineas together with reasonable travelling expenses for counsel and, in the case of appellants, their disbursements in respect of Court fees and printing of the case, all these to be settled by the Registrar. Counsel for the other grandchildren is allowed ten guineas out of the Trust.

McGREGOR J.: This is an appeal from the judgment of the learned Chief Justice of Western Samoa on a motion to determine certain questions arising upon the interpretation of the will of Olaf Frederick Nelson of Apia, Merchant, deceased, who died on the 29 March 1944, leaving his last will dated the 20 May 1943.

By clause 3 of the will the testator devised and bequeathed all his real and personal property to his trustees upon trust for the purposes enumerated and described in the will. Clause 20 of the will, with which this Court is primarily concerned, directs 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 realise 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 Tuaefu and one hundred pounds (£100) to each of my other grandchildren then surviving."

The appellants are four of the daughters of the testator, and they with their sister, the respondent's mother, would as on an intestacy succeed to the property referred to in clause 20 of the will in the event of the respondent, the beneficiary therein named, not succeeding. The five daughters are also the trustees of the will. The respondent's mother has taken no part in the proceedings.

The notice of motion as amended sought an order determining the following questions arising from the interpretation of the will:-

"(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 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 fail or does the defendant take the said gift free from the condition."

The respondent attained the age of 25 years on the 1 March 1963. It .is agreed that the respondent has in the years intervening since the death of the testator been brought up in the Roman Catholic religion, and still adheres to that religion. It is accepted that he has fulfilled all of the conditions set out in clause 20 of the will with the exception of the condition relating to religion.

The answer of the learned Chief Justice to the questions posed in the motion is, first, that the words "Provided that he...shall have been brought up in and will continue to remain a professed adherent of a Christian denomination of the Protestant non-Conformist faith" constitute a single condition subsequent that is void for uncertainty, and secondly that the respondent takes the gift free from the condition subject to its being divested if he dies without issue.

The property comprised in the gift includes the Tuaefu realty consisting of 21 acres of freehold, a substantial residence, chapel, Samoan Fale, and outbuildings situated on the land, the furniture and other contents of such properties and 17,000 shares being 20% of the shares held by the testator in O.F. Nelson & Co. Ltd.

The appellants make three general submissions; first, that the words in issue in clause 20 of the will constitute two general conditions or limitations, and second that the first condition or the first part of the condition is a condition precedent, and third, as the respondent has not complied with that condition the gift fails.

On the ether hand the respondent submits that the requirements as to religious upbringing and continuing adherence are parts of a single composite condition, and are not two separate conditions, secondly the condition is a condition subsequent and is void for uncertainty, and thirdly, if, contrary to the first submission there are two separate and distinct conditions, both are subsequent and void for uncertainty.

Before considering these submissions it seems to me that it is helpful to look at the substantive gift as stated in the will, and other provisions therein, to endeavour to ascertain the intention of the testator as to the time at which it was intended the property should vest in interest in the beneficiary.

The cardinal rule of construction of a will is that it should be so construed as to give effect to the intention of the testator, such intention to be gathered from the language of the will read in the light of the circumstances in which the will was made; (Perrin v. Morgan [1943] AC 399, 420 per Lord Romer).

The direction in clause 20 of the will is that "the Tuaefu Trust and all assets, and other appurtenances thereunto belonging shall become the property of my grandson (the respondent) when he has reached the age of 25 or has completed his education, whichever happens last". From these words and this context, together with any assistance which can be obtained from other provisions in the will, has to be deduced the intention of the testator.

The real question at issue, in my view, is whether it was intended by the testator that the gift to the respondent should vest in interest at the testator's death, subject to it being divested in the event of certain happenings whereby the gift becomes forfeited, or on the other hand whether it is contingent on the fulfilment by the beneficiary of certain conditions. In other words did the testator intend that the gift must remain contingent until the beneficiary possesses all the qualifications that the testator required? If sufficient indicia can be found in the will considered in the light of the surrounding circumstances there is no advantage in considering artificial rules of construction which have gradually developed over the years.

Considering the substantive portion of the direction it is difficult to infer the real intention of the testator as to the time of vesting in interest. The gift is to a named person as contrasted with a gift to such member or members of a class who shall acquire the necessary qualification or qualifications. On the other hand the gift imports words of futurity in that it is directed that the subject matter "shall become the property of my grandson when he has reached the age of 25".

The words "shall become the property of" may in themselves be neutral in deciding the primary question. On the one hand the words may indicate an intention to postpone vesting; on the other hand they may indicate merely a postponement of enjoyment. The expression "shall become the property of" has some similarity to the "shall take effect" considered in Bickersteth v. Shanu [1936] 1 All ER 227. There the clause in the will reads as follows:-

"I devise unto my son ... and his heirs....all that piece of land .... together with the house buildings and premises erected thereon".

and in a later clause it was directed that "these devises shall take effect upon my said son attaining the age of twenty-five years".

Lord Maugham delivering the judgment of the Privy Council held that the true construction of the words "shall take effect" was that they related to the devise taking effect in possession and were not intended to impose a condition precedent on such devise. It must be observed, however, that their Lordships did find some support for this construction in a consideration of the whole of the will and of the circumstances in which it was made to enable them to apply what they expressed as "the established rule for the guidance of the Court in construing devises of real estate (which) is that they are to be held to be vested unless a condition precedent to the vesting is expressed with reasonable clearness".

In Attwater. v. Attwater [1853] EngR 1043; 18 Beav. 330 the brief judgment of Sir John Romilly M.R. is to the like effect. There the testator gave an estate to A "to become his property on attaining the age of twenty-five years, with an injunction never to sell it out of his family; but, if sold at all it must be sold to one of his brothers". Sir John Romilly at p. 336 said:-

"The first question which arises is, whether the devise is vested in Gay Thomas Attwater before he attains twenty-five, and if it be, whether it will be divested if he die under that age? On one side, it is contended that nothing is vested in him till the age of twenty-five, on the other hand, it is contended that the devise is to him directly, and that the words 'to become his property on attaining the age of twenty-five years', are indicative merely of the time when he is to be put into possession of the property. Upon the whole, I think that this question is governed by the case of Snow v. Poulden [1836] EngR 548; (1 Keen, 186), to which I was referred, and that the true construction is, that Gay Thomas Attwater takes a vested interest in the land devised, but liable to be divested in case he die under the age of twenty-five years".

In the substantive gift in the present will I do not think it can be said that there is reasonable clearness that the intention of the testator was that the attainment of twenty-five should be a condition precedent to vesting in interest. The intention might equally have been to have postponed enjoyment in possession. I would also observe that the words "when" or "upon" used singly may have less force than the phrase "if and when".

It is therefore necessary to consider what indications of the testator's intentions can be gathered from the will. The full enjoyment of the gift is expressed to be subject to six additional conditions introduced by the words "Provided that" (i) that he (the grandson) will by then (that is the attainment of 25 etc.) have acquired European status by the laws of Western Samoa" (ii) "and shall have assumed the surname of Nelson" (iii) "and shall have been brought up in" (iv) "and will continue to remain a professed adherent of a Christian denomination of the Protestant non-Conformist faith" (v) "also that he will not have caused himself by any act of his own to have become irreparably unworthy to fill the position when while holding Tuaefu as his own property by his own sole right he will realise that he has thus become the head of the family..." (vi) "and is able to maintain Tuaefu as a family home".

In my view the first two conditions might well be regarded as conditions precedent as they point to a definite future date. The last three conditions, at whatever point of time vesting is intended, seem to me in their nature conditions subsequent. Clause (v) is clearly a disqualifying condition or what may be described as a forfeiture condition. In my view while the matter may not be abundantly clear it recognises a possibility of forfeiture while Tuaefu is held as the respondent's own property by his own right, and this situation could arise before or after the attainment of the age of twenty-five years. The clause could be construed as a divesting clause divesting the interest of the beneficiary if unworthiness were manifested prior to the attainment of twenty-five. As unworthiness could be manifested prior to twenty-five the provision seems to be capable of the interpretation that prior to twenty-five the property being the respondent's own property the respondent had acquired a vested interest. It would therefore follow that there was an intention that vesting should take place prior to twenty-five. The possible inferences as to the intention of the testator which might be drawn from this provision regarded individually seem to me so difficult to reconcile that I can obtain little assistance therefrom as to the testator's intention in regard to vesting.

The other provisions of the will do not assist me to any extent. Clause 9 is clearly a postponement of enjoyment by the respondent. It directs the trustees to hold Tuaefu for occupation by a selected daughter prior to the date when Tuaefu shall become vested in possession in the respondent. The Tuaefu Trust funds are made available to the trustees for the upkeep and maintenance of the property. I doubt whether this clause assists in determining when it was intended that the property should vest in interest. Clause 20A is also consonant with a postponement of vesting in possession rather than vesting in interest, and is a necessary ancillary provision to the condition of occupation by the daughter prior to the full enjoyment by the respondent. The final proviso to clause 20 that a sum of £500 will be made available out of the Tuaefu Trust funds as soon as conveniently possible for the benefit of Leilani and £100 to each of the other grandchildren seems to be somewhat in the nature of an encumbrance attached to the interest of the respondent, and an intention might be inferred that there was an immediate vesting in interest on death subject to provision by way of charge for these legacies.

I cannot therefore hold in the light of all these ambiguous expressions which may indicate an intention either of immediate vesting subject to divesting, or of postponement of vesting, that conditions precedent to the vesting are expressed with reasonable clearness (Bickersteth v. Shanu (supra) at p. 231). I am therefore forced to consider the recognised although perhaps artificial rules of construction. These are conveniently summarised in 39 Halsbury 3rd Edition p. 1119 et seq. and the following statements of principle may have some bearing on the question here at issue:-

(1) The proper legal meaning of "vest" is vest in interest and when a testator uses this word, for example, by directing that the gift is to vest on a certain event, it must be prima facie given its proper legal meaning, and the gift is thus contingent until the happening of the event, whether the gift is of real or personal estate (p. 1119, para. 1653).
(2) In cases where there is a doubt as to the time of vesting, the presumption is in favour of the early vesting of the gift, and accordingly it vests at the testator's death, or at the earliest moment after that date which is possible in the context, whether it is of real or personal estate; and it is presumed that the testator intended the gift to be vested subject to being divested, rather than to remain in suspense (p. 1120 para. 1654).
(3) An estate or interest must remain contingent until there is a person having all the qualifications that the testator requires and completely answering the description of the object of his bounty given in the will. Where the postponement of the gift is on account of some qualification attached to the donee, the gift is prima facie contingent on the qualification being acquired. Thus a gift to a person "at" "if" "as soon as" "when" or provided he attains a certain age, without further context to govern the meaning of the words, is contingent, and vests only on the attainment of the required age, this being a quality of description, which the donee must in general possess, in order to claim under the gift (pp. 1122 and 1124, para. 1657).

Reading the words of the gift apart from the other provisions of the will this construction might apply. The words "shall become the property" are words of futurity to take effect only on the happening of the future event, the event being "when he has reached the age of 25". The gift may be prima facie contingent on the qualification being acquired, the attainment of 25 years of age.

But the learned author emphasises that this construction has no universal application. Para. 1657 continues:-

(3)(a) Such words, however, have in various contexts been held not really to import contingency in the sense of a condition precedent to the vesting, but to have the effect of a proviso or condition subsequent operating as a defeasance of the vested interest.
(4) Where real estate is devised to a devisee "if" or "when" he attains a specified age, and there is a gift over in the event of his failing to attain that age, with or without other contingencies, the attainment of the age is held to be a condition subsequent, and not precedent, and the estate is vested immediately subject to its being divested if the devisee dies under that age. The rule is based on the principle that the subsequent gift over, in the event of the devisee dying under that age, sufficiently shows the meaning of the testator to have been that the first devisee should take whatever interest the party claiming under the devise over is not entitled to, which gives the immediate interest subject only to the chance of its being divested on a future contingency. The rule applies to personal as well as to real estate (p. 1127, para. 1664).

This is sometimes described as the rule in Phipps v. Ackers (1842) 9 Cl. and Fin. 583 H.I. at p. 592.

Reference must at this juncture be made to clause 21 of the will which reads as follows:-

"I DIRECT that in the event of my grandson Olaf Frederick Nelson not being alive on March 1st, 1963 or dies after that date without issue THEN the whole of the Tuaefu Trust shall revert to my five daughters who shall decide as to the disposal of same in any manner most advantageous to them..."

In Phipps v Ackers (supra) the testator directed that the trustees should stand seised of certain lands in trust to convey the same to his godson G.H.A. "when and as soon as he should attain the age of 21 years" but in case he should die before he attained that age, without leaving issue of his body, then the said lands should sink into the residue of the testator's real and personal estate, and he gave the residue to J.C. At the testator's death G.H.A. was only 12 years of age. Lord Chief Justice Tindal delivering the opinion of the judges at p. 590 said:-

"It is not necessary for us to say what would be the legal effect of a simple devise to A. and his heirs when or if he shall attain 21, without any concomitant provisions calculated to show whether the testator did or did not mean to treat the attaining 21 as a condition precedent...whatever might be the true meaning of such a devise if it should occur by itself, there is ample authority for saying that such words may, from the context, be taken not to indicate the time when the estate is to vest but to point out an event on the happening of which an estate already vested is to be divested in favour of some other person".

After referring to certain cases the Lord Chief Justice continues:-

"The second class of cases goes on the principle that the subsequent gift over in the event of the devisee dying under 21, sufficiently shows the meaning of the testator to have been that the first devisee should take whatever interest the party claiming under the devise over is not entitled to, which of course gives him the immediate interest, subject only to the chance of its being divested on a future contingency. Whether the doctrine on which this second class of cases has rested was originally altogether satisfactory, is a point which we need not discuss. It is sufficient to say that it clearly has been established and recognised as a settled rule of construction, not only in the Courts below but also in your Lordships' House, and that rule appears to us clearly to govern the case put to us by your Lordships: in conformity with which rule, therefore, we beg leave to state, that on the question put to us, we are of opinion, that G.H.A., on the decease of the testator, took an estate in fee simple in the lands and hereditaments at W., subject to be divested in the event of his dying under 21 and without issue".

Here in the event of the condition of survival not being fulfilled, clause 21 directs that the interest which the respondent would have taken, that is, the whole of the Tuaefu Trust, shall revert to the five daughters of the testator. Applying the principle enunciated in Phipps v. Ackers this indicated an intention on the part of the testator to give the respondent an immediate interest subject to the contingency that it be divested if he should fail to attain 25 years of age.

Counsel for the appellants submits that this principle of construction does not assist in the present case. The rule is not an absolute one, but merely a guide to construction, and it is suggested that the words of the present gift and the other provisions of the will suggest a contrary intention. Further, attention is drawn to the fact that the terms of the gift over clause, clause 21, are not parallel with the conditions in clause 20 of the will.

It is well established that the rule is merely a guide, and the whole of the will must be considered in endeavouring to ascertain the intention of the testator. It is equally true that the gift over in the present case is directed to take effect on the happening of either of two contingencies, first, the failure of the respondent to survive until March 1st, 1963, or his death after that date without issue. But the principle in Phipps v. Ackers as expressed in 39 Halsbury 1187 is applicable where there is a gift over on failure to attain the stated age, with or without other contingencies. In my view the second condition of dying without issue after attaining twenty-five is clearly a divesting condition subsequent. If it was simply stated that the gift over would take effect in the event of the donee dying without issue it could not postpone vesting.

In Bromfield v. Crowder 1 B. and P. (N.R.) 313 the gift over was subject to a double contingency. The primary gift was to John Bromfield if he should live to attain the age of 21, and in case he died before he attained that age and his brother Charles should survive him then over to Charles, and in case both boys should die before 21 then over to John Vale. There the second gift over was dependent on a double contingency, but it was held nevertheless that the gift to John Bromfield vested on the death of the testator subject to divesting in the event of his not attaining 21. In the present case the gift over to the appellants is dependent on either of two alternative contingencies, the death of the first donee prior to attaining 25, or his subsequent death without issue. The fact that the gift over takes effect on the happening of either contingency does not seem to me to abrogate the principle in Phipps v. Ackers, and that vesting took place on the death of the testator, and that the conditions are conditions subsequent.

Similarly in In re Heath; Public Health Trustee v. Heath [1936] 1 Ch. 259 there was a gift of £5000 to a granddaughter if she should be living at the date of death of the survivor of the testator and his wife, and should attain the age of 21 or marry under that age, with a gift over in the event of the granddaughter not attaining 21 or marrying under that age. Notwithstanding that there was more than one contingency Farwell J. considered the rule in Phipps v. Ackers to be applicable, and that accordingly the gift was vested subject to divesting and was not contingent. Farwell J. concludes his judgment by saying:-

"In the absence of a gift over this would be a contingent gift, because the whole basis of the decision in Phipps v. Ackers rests upon the fact that there is a gift over, but there being a gift over in this case, the rule is applicable unless there is anything in the other parts of the will to exclude it".

Considering by itself the substantive gift to the respondent, and putting aside for the time being the subsequent conditions attached thereto, I would therefore hold that it was the intention of the testator that the gift should vest on the death of the testator, and the condition as to the attainment of the age of 25 by or the completion of the education of the respondent arc conditions subsequent.

When there is a gift subject to the attainment of a curtain age the Courts seem more readily to have leaned to the view that the gift is contingent when the gift is to a member of a class who must attain the required qualification. Examples of the adoption of this construction are Proctor v. Bishop of Bath and Wells [1794] EngR 2334; (1794) 2 Hy. Bl. 358 (the first son of A. that should be bred a clergyman) and Duffied v. Duffield (1829) 1 Don. and Cl. 268 H.L. (such children as should attain twenty-one). This is not, however, in any way decisive. Also when a devise to a named person stands and is not preceded by any immediate interest or is not followed by a gift over, the attainment of 25 has been held to be a condition precedent to vesting (re. Francis, Francis v. Francis [1905] UKLawRpCh 71; [1905] 2 Ch. 295). But there Swinfen Eady J. at p. 293 points out matters of distinction:-

"There is not in terms any gift or disposition of the rents until Hilda attains twenty-five, which might have enabled the Court to say that attaining the prescribed age no more imported a condition precedent than any other words indicating that the remainderman was not to take until after the determination of the particular estate. Nor is there in terms any gift over on Hilda dying under twenty-five, which might have enabled the Court to hold that Hilda took whatever was not given over to the party claiming under the devise over, and to construe the condition as a condition subsequent, divesting a previously vested estate".

In the present case there is a gift to a named person, and the enjoyment of the trust property until the attainment of 25 by the donee is given to other members of the family, although the legal estate is retained by the trustees. This consideration in conjunction with the gift over seems to render it more easy to accept an intention on the part of the testator to divest a previously vested estate.

The gift is, however, subject to the fulfilment of some six other conditions, which I have previously enumerated (1) that the donee will "by then" (i.e. the attainment of 25 or the completion of his education) have acquired European status and (2) shall have assumed the surname of Nelson and (3) shall have been brought up in a Christian denomination of the Protestant non-Conformist faith and (4) will continue to remain a professed adherent of the same and (5) that he will not have caused himself by his own act to be unworthy to fill the position of the head of the family and (6) that he is able to maintain Tuaufu as a European home. It would seem that the first three conditions have to be fulfilled on or before the respondent attains 25 years of age. The last three conditions could be applicable both before and after the attainment of twenty-five and might remain operative during the life of the respondent. The last condition is clearly a divesting one. Considering all those conditions, and bearing in mind the presumption of early vesting I take the view that those conditions are conditions subsequent. It seems to me that in any event the respondent was entitled legally to claim the vested interest under the gift immediately on the death of the testator, subject to divesting on death before attaining twenty-five, and the further conditions are not so much qualifications attached to vesting in the donee as disqualifications in the event of certain events happening. None of these conditions depend on happenings at a certain fixed time. They are in their nature continuing conditions applying over a period of time. For example, the donee could comply with the condition as to the assumption of the surname of Nelson at least on attaining twenty-one, but it seems obvious that it was the intention of the testator that he should continue to use such surname at least until his attainment of the age of twenty-five. The fourth condition relating to adherence to the Protestant religion is likewise a continuing condition throughout the life of the donee, both before and after the attainment of twenty-five.

The construction of a continuing condition was considered by Dean J. in In re Crane deceased, The Equity Trustees Executors & Agency Co Ltd v. Crane [1949] VicLawRp 58; [1950] VLR 192. There a condition attached to a gift of income to the widow that the children should be brought up according to the rites of the Church of England. Dean J. observed:-

"Bringing up a child is a continuous process, and I think that what he had in mind was to give her the income each year if during such year she was bringing up the children according to the rites of the Church of England. Construed in this way, the clause is more easily read as a condition subsequent, her right to income ceasing upon a breach of the condition. It is well settled that the Court favours the construction of a condition as subsequent rather than precedent - see Sifton v. Sifton [1938] AC 656, at p. 676: "Where it is doubtful whether a condition be precedent or subsequent the Court prima facie treats it as being subsequent'. Further, in the case of a continuing condition, it is easier to treat it as subsequent. See In re Ellis [1928] NSWStRp 24; (1929) 28 SR (NSW) 470, at p. 475, where Long Innes J., citing from Swinbourne on Testaments and Wills (7th Ed) p. 392n, refers to Colthurst's Case in Plowd. Comm. 21, where a remainder was limited si vellet inhabitare: 'There si vellet inhabitare was held to be a condition subsequent, because it is a thing of continuance, and may be infringed and broken every year'."

Those conditions, several at least of which are things of continuance, seem to me also to be conditions subsequent, and influence me in adhering to my earlier view that the gift to the respondent vested on the death of the testator subject to forfeiture in the event of non-fulfilment of the conditions subsequent. I am also fortified in this view by the decisions of the New Zealand Court of Appeal referred to by the learned Chief Justice in his judgment in the Court below - namely In re Belcher, Bollard v. Belcher [1913] NZGazLawRp 149; (1913) 32 NZLR 1336 and Public Trustee v. Gower [1920] NZLR 1233.

In the former case Sim J. giving the judgment of the Court refers to the second class of cases mentioned by Tindal C.J. in Phipps v. Ackers (supra) and continues:-

"It is clear, therefore, that each of the two sons in question took an immediately vested estate in remainder subject to it being divested in certain contingencies. If the only contingency provided for had been that mentioned in the gift over, then the case would have come exactly within the decision of the House of Lords in Phipps v. Ackers, and as both sons have attained the age of thirty-one years the estates would not be absolutely vested. The gift over duals only with the contingency of a son dying under the age of thirty-one without leaving lawful issue. That contingency did not arise, and the gift over cannot take effect now. Before, however, the estate can be completely and absolutely vested another condition must be complied with - that is, the condition contained in the trust to convey. It is that each son shall have lawful issue of his body capable of inheriting real property under the law of England. Failure to comply with that condition will divest the estate now vested. The effect of the will, therefore, is that before either or the two sons acquires an absolutely and completely vested estate in fee-simple in the land he must attain the age of thirty-one years and must have issue capable of inheriting. If either of them dies without having had such issue then his estate is divested, and as there is no residuary devise in the will the land will pass as on an intestacy."

The Court also hold that by virtue of the gift of the intermediate income the case came within the first class mentioned in Phipps v. Ackers, but the matter of importance is the fact that notwithstanding there was there an incomplete gift over the Court held that the case was within the second class referred to in Phipps v. Ackers. Further, although the intermediate income is here not specifically bequeathed, the intermediate enjoyment of the property is directed, together with a direction for maintenance and upkeep thereof out of the funds of the Tuaefu Trust.

In the present case there is no gift over in the event of the non-fulfilment of the conditions contained in the will, other than the condition of attaining twenty-five years of age, or the event of subsequent death without issue. This does not, however, prevent the application of the second principle referred to in Phipps v. Ackers.

My first conclusion, therefore, is that the gift in favour of the respondent vested in interest on the death of the testator, and all the condition attached to the gift by the provisions of clause 20 of the will are conditions subsequent. I do not think the provisions of clause 9 of the will giving directions to the trustees in regard to the intermediate control of the house property at Tuaefu and the rights of occupancy therein to the daughters of the testator affect this conclusion. Such rights are equally consistent with a postponement of enjoyment. Even if there is a doubt as to the application of these principles, as in other respects I cannot find any sufficiently clear indication of the intention of the testator as to the time of vesting, it would seem to me that the presumption of early vesting as at the date of the death of the testator must be applied.

Taking this view I do not need to consider further the question as to whether the provision that the respondent shall have been brought up in and will continue to remain a professed adherent of a Christian denomination of the Protestant non-Conformist faith comprises two separate conditions or one composite condition. Both counsel agree that if this condition is a condition subsequent, or in the event of it comprising two separate conditions both are conditions subsequent, the condition or conditions is or are void for uncertainty. If a condition subsequent is void the gift is absolute (Jarman 8th Edit. Vol. II 1457).

I have, however, reached a conclusion that the provision that the respondent shall have been brought up in and will continue to remain a professed adherent of the Protestant non-Conformist faith is one composite condition. In view of the lengthy consideration of this matter by my brother Hutchison I do not require to state my reasons at any length. It is impossible to postulate at what point of time upbringing in religion ends. Once this point of time has been reached a breach of this condition might, busject to any questions of uncertainty, operate as a forfeiture. The use of the "future perfect tense" indicates the intention of the testator that forfeiture, if it operates, should operate in the completion of the grandson's upbringing dependent on whether such upbringing was or was not that recognised by a Christian denomination of the non-Conformist faith. Adherence might commence before completion of upbringing, might commence at the completion of upbringing, or might commence at a later date either before or after twenty-five. It seems to me that it was the intention of the testator that non-adherence at any time before or after twenty-one, or before or after twenty-five, should result in a forfeiture. The essential element in the whole of this provision is the one religious element. Upbringing and adherence are two aspects of this element, but it seems to me they are not entirely separable in point of time, or in point of termination or commencement. Notwithstanding the change of tense I find extreme difficulty in attempting to construe the provision in two separate and distinct parts. The respondent's upbringing prior to the death of the testator was according to the tenets of the Protestant non-Conformist faith. The intention of the testator was clearly to endeavor to ensure the conformity of the respondent to the beliefs of this faith during the whole of his life. In my view the matter cannot be divided into separate periods of time of uncertain commencement or termination, and the condition must be viewed as a continuing one without break. I would also find difficulty in accepting any suggestion that from twenty-one to twenty-five adherence to the faith was intended to operate as a condition precedent, and that failure thereafter to adhere could operate as a divesting condition subsequent. One has to endeavor again to decide the intention of the testator from the perhaps abbreviated expression of his wishes, and I would hesitate to add words which the testator might or might not have added if his attention had been drawn to the difficulties with which we are faced. I do not think we are entitled to endeavor to examine the thoughts of the testator. Whet we must consider is the expression of his thoughts. I therefore read the condition as one condition indivisible into separate parts. Holding this view it is unnecessary to consider the matter of public policy. Smith J. seems to have been confronted with the same difficulty in In re Lockie deceased, Guardian Trust & Executors Co of N.Z. Ltd & Others v. Gray & Others [1944] NZGazLawRp 103; [1945] NZLR 230. There the religious condition of enjoyment was expressed in two separate and inconsistent provisions which could not be entirely reconciled. In considering the question of uncertainty it seems to be implicit in the judgment that with the common element of religious disqualification an endeavour had to be made to construe the provisions together and not as severable conditions.

In the result, therefore, I agree with the learned Chief Justice's answers to the questions propounded. My answers are as follows:-

(1) The words constitute a condition subsequent void for uncertainty.
(2) The respondent takes the gift free from the condition subject to its being divested if he dies without issue.

T. A. GRESSON J.: This was an appeal from a judgment of Molineaux, C.J. delivered in the Supreme Court of Western Samoa on the 8 August 1963. It involves several difficult matters of interpretation arising under the will of the late Olaf Frederick Nelson, of Apia, merchant, who died on the 28 February 1944. The specific questions asked in the amended motion before the Court are as follows:-

(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 respondent constitute a condition or conditions or limitation or limitations which are severable, and whether one or any are valid, 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 gift to the respondent fail or does the respondent take the gift free from the condition?

Before attempting to answer these questions I propose first to refer briefly to the facts over which there is no real controversy, for the will, while exhibiting some degree of technical knowledge and skill, is in some respects inconclusively drawn, and an examination of the circumstances in which the testator made it may help in the ascertainment of his true intention: W.R. Patton v.: Toronto General Trusts Corporation and Others [1930] AC 629, 633; Perrin v. Morgan [1943] AC 399, 420. Secondly, I shall analyse the relevant provisions of the will and try and deduce testator's intention if possible, without resort to any established rules of construction which are applied in doubtful cases. Thirdly - and in deference to the learned Chief Justice - I shall summarise his conclusions and examine the detailed reasons advanced by him in their support. Against this background I shall express my own opinion as to the true construction of clause 20 of the will, with particular reference to the religious condition or conditions imposed on the gift to the respondent, and this will involve consideration of (1) the severability or otherwise of this condition; and (2) whether, if severable, the first part of the condition relating to religious upbringing constitutes a condition precedent or a condition subsequent. I shall then examine the Rule in Philips v. Ackers, and pass on to consider the question of public policy. Finally, I shall state my conclusion as to the destination of the "Tuaefu Trust" in the light of the events which have occurred.

As to the relevant facts, testator's only son died in infancy His eldest daughter also predeceased him, but he was survived by five daughters and two young grandchildren, namely, the respondent Olaf Frederick Tamascse Nelson and Olive Leilani Keil, who, at the time of his death, were living with testator in his home at Tuaefu, which is a substantial European house standing on 21 acres of freehold property near Apia. At the date of testator's death respondent was on the eve of his sixth birthday, and had been brought up at Tuaefu since he was nine months old. Both Olaf and Leilani are now of age, and were removed from Tuaefu voluntarily during their minority in accordance with their respective parents' own free will and preference.

Respondent is now a law clerk in Apia, and it is not disputed that he has been brought up in the Roman Catholic faith and is at present a practising member of this Church. The evidence establishes quite clearly that testator's dominant purpose was that after his death Tuaefu should continue to be conducted as it had been in his lifetime, namely, as a family home in European style, and that the current occupant or "head of the family" as the case might be, must adhere to the Methodist Church. This religious qualification was a matter which testator attached great importance, as he was a devoted member of the Methodist Church during his lifetime. From approximately 1929 the Methodist Church recognised the chapel at Tuaefu as a separate registered Church, and it was testator's practice to call his family together for prayers every evening. The evidence does not disclose specifically whether at the date of testator's death respondent had been baptised in the Methodist or Roman Catholic faith, but Mrs Retzlaff has sworn that during the years that respondent lived at Tuaefu "my father brought him up as if he were his own son". The probable inference I think from this is that, at the time of testator's death, respondent was being brought up in the Methodist faith, but there is no conclusive evidence before the Court in this respect. There is also possibly a hint of testator's anxiety as to the risk of religious conversion in the final proviso to clause 9(c) of his will.

I turn now to the will itself, dated 20 May 1943, of which probate was granted on the 29 March 1944. By clause 2 thereof testator appointed his five daughters to be his executrices and trustees, and bequeathed them his whole estate "upon trust for the purpose (sic) enumerated and described in this my last will". After making provision for the payment of debts, duty and legal expenses, and giving certain other personal directions, over which there is no dispute, testator, by clause 9 of his will, then constituted what was conveniently referred to in argument, in conjunction with clause 20, as "the Tuaefu Trust". This clause was in the following terms:-

"2. I DIRECT my Trustees to hold my home property Tuaefu with all its furniture and other contents UPON TRUST on the following conditions and for the following purposes:-

• (a) The whole of the freehold property purchased from the late Oluff Roeback shall be part and parcel of the Trust which shall hereinafter be referred to as "Tuaefu" or the "Tuaefu Trust".
• (b) Tuaefu shall be conducted in the European style as a European residence and shall be upkept and maintained in the same condition as during my lifetime as far as it is possible to do so with the funds hereinafter provided for the purpose plus a contribution by the occupant for living expenses obtained from other benefits derived from this my will by such occupant to the extent where such contribution may be necessary.
• (c) My five daughters shall decide on who of them shall occupy Tuaefu either permanently or for a certain period fixed by them from time to time PROVIDED ALWAYS that the occupant of Tuaefu must be a person holding European status and is a professed adherent of a Christian denomination of the non-Conformist Protestant faith AND PROVIDED ALSO that no visitors shall be allowed to call at Tuaefu for twelve months after my demise other than members of the family on family affairs.
• (d) If, in the unanimous opinion of my other daughters the occupant of Tuaefu appointed by them under the above conditions is not conducting the home at Tuaefu in a manner which would have been satisfactory to me had I been alive, or that she has so misconducted herself as to have become unworthy of the trust, then she may be relieved of the trust, temporarily or permanently, and another one placed in charge, so long as she proves worthy of the trust, in the opinion of the majority of my daughters.
• (e) My grandchildren who have been domiciled in Tuaefu during my lifetime shall have the right of permanent residence and shall become a charge on whoever of my daughters shall be the occupant and of the funds provided for the maintenance of Tuaefu until their education has been completed or until their respective parents have of their own free will and preference removed either or both of such grandchildren from Tuaefu.
• (f) I DRAW special attention of the daughter in charge in Tuaefu to the special care required for the proper maintenance of the furniture and fixtures AND REGRET that I find it necessary to make special mention of this in my will because of the need for me to remind all daughters of their apathy and apparent indifference in this connection during my lifetime AND I DIRECT that where any funds accruing to the Tuaefu Trust are available the repairs and maintenance of the furniture and fixtures as well as the premises and grounds shall be one of the first charges on such funds AFTER proper sustenance has been provided for the occupants including the necessary household staff.

(g) IF HOWEVER Tuaefu must be sold or disposed of for reasons hereinafter specified THEN THE WHOLE OF THE FURNITURE may be divided equally between my five daughters and such items as may not be required by them (such as the billiard table) may be sold for the benefit of my Estate AND PROVIDED that my Samoan fine mats (ie toga) shall remain family property except that part of same shall be given to my eldest daughter if she will not have received her dowry before my demise."

It is thus perfectly plain that testator was determined that even a daughter occupying Tuaefu, either permanently or temporarily, must be "a person holding European status and a professed adherent of a Christian denomination of the non-Conformist Protestant faith" (referred to hereinafter, for the sale of brevity, as a "Protestant"). It is also to be observed that both respondent and Leilani were given the right -of residence at Tuaefu during the occupancy of the daughters, and testator specifically provided that both grandchildren - and not respondent only - should become a charge on "whoever of my daughters shall be the occupant and of the funds provided for the maintenance of Tuaefu" until completion of their education or until voluntary departure from the family home. Had testator intended to vest the Tuaefu Trust in respondent at his death, and postpone enjoyment only of the gift, I incline to the view that he would have made a specific allocation of some intermediate income to him for his education, etc.

By clause 17 of his will testator provided that after the estate's liabilities had been paid, his shares in O.F. Nelson & Co. Ltd and Apia Stevedoring Co Ltd should be divided on the basis of 16 per cent to each his five daughters, and 20 per cent to the Tuaefu Trust. The daughters' shares were then settled upon them on certain restrictive terms for the benefit of themselves and their legitimate or adopted children.

Clause 20, over which the main controversy in this case centres, then provided as follows:-

"20. 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 ether appurtenances thereunto belonging shall become the property of my grandson Olaf Frederick Nelsen the eldest son born to my daughter Irene Gustave Nouo 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 realise 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 (2500) 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 Tuaefu and one hundred pounds (£100) to each of my other grandchildren then surviving."

This gift included the Tuaefu realty, residence, and chapel previously referred to, Samoan Fale and outbuildings, furniture and other contents, the freehold properties in Savai'i, as described in clause 10 of the will and 17,000 fully paid £1 shares in O.F. Nelson & Co Ltd. In my opinion this clause reveals testator's firm intention that the Tuaefu Trust should "become the property of" the respondent grandson when - but not before - he reached the age of 25, or completed his education, whichever happened last. It is agreed that respondent attained the age of 25 on the 1 March 1963 and had completed his education prior to this date. This valuable bequest was made subject to the following further six express conditions, namely, that on the attainment of 25 respondent -

(1) Will have acquired European status by the laws of Western Samoa.
(2) Shall have assumed the surname of Nelson.
(3) Shall have been brought up in the Protestant faith.
(4) Will continue to remain a professed adherent of such faith.
(5) 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 realise that he has thus become the head of the family.
(6) 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."

It is accepted by appellants that respondent, on the attainment of 25, presently fulfilled these conditions with the exception of the religious qualification, as set out in conditions (3) and (4) above.

Apart from certain rules as to early vesting, which apply only in cases of doubt, I should, as a matter of construction, have felt able to decide quite readily that the vesting of the Tuaefu Trust in respondent was subject to four conditions precedent, being contingent upon the attainment of 25 years, the acquisition of European status, the assumption of the surname of Nelson, and an upbringing in the Protestant faith. Having regard to his part Samoan parentage, as disclosed in clause 10 of the will, his lifetime in Samoa and his strong traditional outlook on family and religious matters, as revealed in the evidence and in his will, I am of opinion that testator intended to make no gift of the Tuaefu Trust to respondent unless and until he fulfilled these four conditions or qualifications. The performance or fulfilment of these conditions precedent was, in my view, if not the sole, then certainly the dominant, motive of the whole bequest. In testator's mind he was appointing respondent "head of the family" and master of Tuaefu on the attainment of 25, with all the attendant advantages and responsibilities, under Samoan custom, provided that at this age respondent complied with testator's conditions precedent. Testator then imposed three conditions subsequent, upon which the gift was to be divested, namely, a failure to continue to adhere to the Protestant faith, unworthy personal conduct while "head of the family", and, finally, financial inability to maintain Tuaefu as a European home. It may also have been testator's intention that unworthy conduct prior to the attainment of 25 would disqualify respondent from receiving his gift.

It is important to note that, save for the gift over provisions contained in clause 21, to which I shall shortly refer, the will surprisingly makes no provision for the ultimate disposition of the Tuaefu Trust in the event of respondent's failure, apart from non-fulfilment of the age qualification, to comply with the conditions imposed by clause 20. Thus, non-compliance with any of the conditions set out above, if valid, will, in the absence of any gift over, result in the Tuaefu Trust passing as on an intestacy, and it will be divided equally between testator's five daughters. Such a result, however, would accord with testator's attitude towards his family, for it is plain from the will that it was his earnest desire to achieve equality between his daughters. The absence of a complete gift over covering all contingencies in my view also militates against the contention that the gift was intended to vest in interest in respondent at testator's death.

Clause 20(a) again reveals testator's intention, for it provides that "unless and until the foregoing clause 20 shall have become operative, respondent shall have no prior right whatever over any of my other grandchildren, and while he is resident at Tuaefu under clause 9(e) he must conform with whatever conditions may be imposed on any of my other grandchildren then resident in Tuaefu by such of my daughters who may be in charge of the family home". In my view these are strong words, and they indicate that testator did not intend to vest respondent's gift in interest at the date of his death and merely postpone the enjoyment of it till he attained 25, but rather that the gift to respondent was contingent upon the fulfilment of the conditions precedent imposed by clause 20. I regard this clause as being something more than a necessary ancillary provision to clause 9. The position would be otherwise if clause 20(a) opened with the words "Notwithstanding the provisions of clause 20, my eldest grandson shall have no prior right, etc.", for this might carry with it an implication of early vesting with enjoyment only postponed.

Clause 21 proceeds to deal with the possibility that respondent may not survive to the 1 March 1963, or may die thereafter without issue, in which case the whole of the Tuaefu Trust "shall revert to my five daughters who shall decide as to the disposal of same in any manner most advantageous to them...."

In clause 23 testator expresses his "earnest and sincere wish" that his home at Tuaefu should be held intact for the purposes enumerated in his will as a family home, and then in clause 24 he deals with the possibility that the Tuaefu Trust may require to be realised and the proceeds may become largely absorbed in the payment of debts, in which case he bequeathed respondent the sum of £1,000, and his granddaughter Leilani £250. If the proceeds from the Tuaefu Trust, after meeting debts and duties, etc., left an excess of more than £750, then up to £100 was to be paid to the first born grandchild of each of the three other daughters. The clause concludes with the words that "any further excess over these payments shall accrue to respondent, who would thus be deprived of the Tuaefu Trust for himself alone when he reaches the age of 25". In my opinion these concluding words again reveal the contingent nature of respondent's gift.

Counsel have been unable to point to any indicia in the will showing that respondent's gift was intended to vest at the date of testator's death, and in my view clauses 9(e), 20, 20(a) and 24, as discussed above, show a contrary intention, namely, that the gift was not to vest in respondent unless and until clause 20 became operative by virtue of the fulfilment of its conditions, and the policy of the law favouring early vesting does not justify a contingent gift being misconstrued to make it vest earlier than the time contemplated by the testator.

Having made this general survey of the relevant portions of the will, I pass now to consider the construction which the learned Chief Justice placed upon the religious condition. In a lengthy and extremely carefully considered judgment, His Honour acknowledged that "the preliminary question for determination is whether these words constitute a condition or conditions or limitation or limitations that are severable", and he concluded that -

"In context the religious condition reads as a single separate condition in which professed adherence to the Protestant faith is to obtain during two phases of respondent's life, the first of which covers the period of his upbringing, and the second extending throughout the remainder of his life",

and he observed, quite correctly, that the religious qualification applies to both periods; that during the former period the matter of respondent's religious instruction would normally be expected to be in the hands of his parents or those responsible for his upbringing, whereas during the latter period his religious beliefs are a matter for his own conscience. He then continued;-

"In the present case there is only one qualification of religious faith which is applied to two phases or periods of the respondent's life. I think it is true to say that before one can continue in a certain state of religious belief or adherence, one must obviously have acquired that state of belief or adherence. There is an implication in the stipulation of continuing to remain a professed adherent that that degree of belief had been acquired prior to the time from which respondent is required by the terms of the will to continue in it, or, put in another way, that he became a professed adherent during the period of his upbringing."

There is what he referred to as -

"a merger back into the first phase that does not seem consistent with the concept of severability - as the period of qualification is continuous."

He considered that -

"Grammatically the condition is not severable as it stands. There would have to be some form of alteration or re-arrangement of the context in order to spell out or compose two separate sentences before one could go on to consider whether the condition in its re-drafted form was capable of being treated as being severable into two separate conditions. In so far as a measure of selection would inevitably be involved in that process, I doubt whether the Court would be justified in attempting such a task in view of the consequent risk of interference with the intention of the testator. If the words were in a form that would lend itself to severance without the necessity for alteration or re-arrangement of context, the position might perhaps be otherwise."
"The words", he said, "constituted but one condition, containing two parts or phases that are better regarded as being definitive of the period during which the religious qualification is to obtain, rather than as comprising two separate entities"

and, relying upon the decision in Clayton v. Ramsden, [1943] 1 All ER 16, 18, 20; [1943] AC 320, 327, 330, he concluded that the condition was at most a single compound "composite condition". With respect, for reasons which I shall elaborate later, I consider Clayton's case, which related solely to a forfeiture clause, is distinguishable from the present case.

His Honour then proceeded to examine the fundamental question as to whether the words used constituted a condition precedent, or a condition subsequent, and pointed out, quite correctly, that there is authority for the proposition that a condition which may be void for uncertainty, when construed as a condition subsequent, may not necessarily be so when viewed as a condition precedent because of the great reluctance of the Courts to bring about a forfeiture or defeasance of an already vested interest in the absence of clear and virtually compulsive words, Clavering v. Ellison, [1859] EngR 919; (1859), 7 HLC 707; 11 ER 282; Re Allen, Faith v. Allen & Others [1953] 2 All ER 898, and he held that the religious condition was a condition subsequent, and as such was void for uncertainty, and that the respondent accordingly took the gift free from such condition, subject only to its being divested if he died without issue.

The learned Chief Justice also expressed the view that the reference in clause 21 to the Tuaefu Trust "reverting" to my five daughters in the event of respondent not being alive on 1 March 1963, indicated a prior vesting of the gift in respondent immediately upon the death of the testator, but with respect I am of the opinion that the use of this word is insufficient in itself to displace the other indications in the will of testator's intention that the gift was to remain contingent until respondent attained 25, and fulfilled the required conditions precedent. In my view the use of the word "revert" was intended to mean no more than that in the specified circumstances the Tuaefu Trust would pass to the daughters, and read in the context of the will as a whole, it cannot, I think, be treated as a clear indication of a divesting of an interest already vested in respondent at the date of testator's death.

Approaching the matter from a different angle, the learned Chief Justice also decided that the condition fell within the second class of cases mentioned by Tindal, C.J. in the well known case of Phipps v. Ackers (1842) 9 Cl. & Fin. 583; 8 ER 539; but for reasons to which I shall shortly refer, I am of opinion that respondent gains no assistance from this rule of construction on the terms of this will.

Having determined that the religious condition was not severable, comprised one composite condition subsequent, and was void for uncertainty, the learned Chief Justice was not required to deal with Mr McKay's final submission, namely, that if the condition requiring respondent to have been brought up in the Protestant faith is severable, and constitutes a condition precedent, then it is void as being contrary to public policy.

In these circumstances, for appellants to succeed in this Court in reversing the judgment of the Supreme Court they must establish first that the words in issue in clause 20 of the will constituted two - or more - severable conditions; secondly, that if so, the first condition was a condition precedent which, if not fulfilled, precluded the vesting of the gift when respondent reached 25; and, thirdly, that such condition was not contrary to public policy. If these contentions are established it is common ground that the whole gift to respondent has failed through his failure to satisfy the condition precedent as to religious upbringing, and that accordingly the Tuaefu Trust must be divided as upon an intestacy between testator's five daughters.

As to severability, this is a question of construction, Clayton v. Ramsden, cited supra, at p. 18, per Lord Russell. The relevant words are as follows:-

"Provided that he....shall have been brought up in and will continue to remain a professed adherent of a Christian denomination of the Protestant non-Conformist faith".

In my opinion the answer to the alleged grammatical difficulty or ellipsis, to which the Chief Justice referred, lies in the fact that testator has resorted as a matter of draftsmanship to an economy of words, and has thus "telescoped" two, and possibly three, different conditions all relating to religion into one sentence. The verbs "shall have been brought up in" and "will continue to remain" are, as Mr McKay submitted, associated by the conjunction "and", and they share a common predicate, but the condition as to upbringing is expressed in the future perfect tense and has a retrospective significance only, whereas the condition as to continued adherence is introduced by words of futurity and thus prima facie has a prospective implication. An upbringing in the Protestant faith and continued adherence thereto were matters to which testator obviously attached great importance. Recognising that for many years to come his grandson would be under adult supervision he therefore provided first for his upbringing as a Protestant. He then intended to stipulate for continued adherence to this faith, and, trying to combine this limitation with a postponement of vesting until the attainment of 25, he imposed two divisible religious conditions. The first, relating to upbringing, is a condition precedent, and its fulfilment or otherwise on which the donee's qualification for the gift depends, could be objectively determined by the trustees instanter when respondent reached 25. The second condition operating after vesting at 25 is clearly a condition subsequent, a divesting condition operating as a defeasance or forfeiture. Compliance or non-compliance with this condition cannot be ascertained until a much later date for, as the Chief Justice demonstrated, a donee may change his religion, for example, upon his deathbed, and "conversion" in one direction or another is not uncommon. For example, as Stout, C.J. pointed out in Re Gower, [1924] NZGazLawRp 40; [1924] NZLR. 1233, at p. 1239, "John Knox was at one time a Catholic, then an Anglican, and then a Presbyterian"!

I recognise that "upbringing" in the ordinary sense would terminate at 21 or perhaps earlier, but in this instance I consider testator has made his own dictionary and has used the phrase "shall have been brought up in the Protestant faith" in a special sense to cover comprehensively phase one, namely, the period elapsing until the vesting of the gift on respondent attaining 25, for in the substantive gift in the same clause testator provides that "the Tuaefu Trust shall become the property of my grandson when he has reached the age of 25 or has completed his education, whichever happens last". "Education" in the ordinary sense would end before the attainment of 25, and testator has clearly given the word an extended meaning sufficient for example to cover the obtaining of a University degree, postgraduate study, or qualification in a profession. Similarly, in my opinion he has used "upbringing" in an extended sense. I think that on its true construction in the context of this particular will the religious qualification is equivalent to "Provided that at 25 respondent (a) shall have been brought up in the Protestant faith, and (b) will continue to remain a professed adherent of the Protestant faith". An alternative construction is that testator has "telescoped" three religious conditions into the one abbreviated sentence, the first relating to upbringing, the second to the period from 21 to 25 years, and the third to the period thereafter. One may take it I think as certain that testator contemplated that respondent should be reared as a Protestant and then continue after majority until 25 as a Protestant, and thereafter should adhere to the Protestant religion for the balance of his lifetime. On either construction I am of opinion that the condition requiring adherence to the Protestant faith after the Tuaefu Trust vested in respondent at 25, constituted a condition subsequent and is severable. I see no objection in principle to severance, of Re Howards Will Trusts [1961] 2 All ER 413, 422, particularly if this will fulfil testator's intention. It is I think reasonably plain that testator intended that upbringing and adherence to the Protestant faith should constitute conditions operating throughout respondent's lifetime, but the fact that these religious requirements merge in point of time does not, in my opinion, preclude their severance as conditions, for their division into conditions precedent and subsequent.

In Lockie's case[1944] NZGazLawRp 103; , [1945] NZLR 230, the relevant clause under consideration upon which the grandson forfeited his bequest, was, in brief

"In the event of his not being; brought up and educated in the Protestant faith, and not adhering to the Protestant faith at the time of his attaining the age of 25 years."

Counsel agreed that these conditions affecting the grandson's religion were conditions subsequent, and as Smith, J. observed, this view was "clearly correct" for, although the grandson's share was directed to vest in him on his attaining the age of 25 years, the intermediate income was to be accumulated in his favour – and I interpolate that this is not the case here. In this circumstance a legacy which would otherwise be contingent on the attaining of a given age by the legatee vests immediately on the testator's death, and a direction to apply the whole interest for the maintenance of a legatee has the same effect. Clause 9 (e) of the present will is the antithesis of this artificial rule in favour of early vesting for the intermediate income until respondent attains 25 is nowhere given to respondent alone, nor are the trustees directed to accumulate it in his favour. In point of fact there is no clear disposal of the intermediate income, and certainly no prior estate. For reasons which I need not traverse, the learned Judge held that the religious condition in issue in Lockie's case imposed uncertain terms of forfeiture, and on the basis of Clevering v. Ellison and Clayton v Ramsden, cited supra, it was accordingly void. This conclusion was of course, sufficient to determine the case, whether this condition comprised two severable conditions or one composite condition, but in defence to Counsel's argument the learned Judge proceeded to examine the matter upon the basis that the conditions were intelligible when viewed as separate conditions, and he was prepared to "assume" that the various conditions stated were severable. On this divisible basis he again concluded that both conditions were void for uncertainty. The case, as Mr McKay submitted, is therefore not an authority in regard to severability of a religious condition, and it has this very limited significance only, that the learned Judge was prepared to investigate the main question in issue, namely, the uncertainty of the religious condition, upon this divisible basis, and thus recognised severance as a possibility.

In in re Cross [1938] VicLawRp 28; [1938] VLR 221, the question of severance was never raised, and the ground of the decision was that the condition was "too indefinite [text not clear] and also repugnant an also repugnant to public policy". Martin J., in holding the condition to be subsequent, said at p. 230:-

"It seems to me reasonably clear that the testator intended breach of the condition should put an end to a gift already vested, and that it was not his intention to withhold the gift unless and until the condition was fulfilled".

In my view testator's intention in our case, as revealed for example in clause 20(a) of his will, was the opposite.

Clayton v. Ramsden, cited supra, involved the construction of a forfeiture clause, and testator, who had given a legacy and a share of residue to an unmarried daughter, provided for forfeiture "if she should at any time after his death marry a person not of Jewish parentage and of the Jewish faith". After the testator's death the daughter married an English Wesleyan, who was obviously not of Jewish parentage or faith. The event, namely, the daughter's marriage, on which defeasance would take effect, was a single event, but the forfeiture clause stipulated that it was only marriage to a particular husband lacking two qualifications which would result in forfeiture. The House of Lords held unanimously that there was but one composite condition subsequent, which was void for uncertainty, but a preliminary question was raised, which had not been argued in the Court of Appeal, as to whether the words "who is not of Jewish parentage and of the Jewish faith" imposed one condition or alternative conditions, on the happening of either of which a forfeiture would occur. Their Lordships had little difficulty in deciding that in the will in question there was but one condition of forfeiture, and that it was one composite condition, so that if either limb was not sufficiently clear and distinct the whole condition was void. In my opinion the construction of the forfeiture clause in Clayton's case is by no means decisive upon the construction of the very different and more elaborate clause 20 in issue in the present will: see Re Allen [1953] 2 All ER 898; In re: Kearney deceased [1957] VLR 56, 61, 62; and In re Harris deceased, [195] VLR 182, 186. Clause 20 imposes four conditions precedent and three conditions subsequent. The fulfilment or otherwise of the former is to be determined by the trustees at a fixed date, namely, when respondent attained 25. Compliance with the latter must be judged over a period of many years, In other words compliance with the conditions in clause 20 has to be decided not contemporaneously upon a single event, such as marriage, as in Clayton's case, but consecutively over a lengthy period, and this favours severance. It was because construing the forfeiture clause in Clayton's case as two severable conditions would involve doing violence to the testator's intention, that the clause was there regarded as one composite condition, see Lord Russell of Killowen, at p. 327, and Lord Romer at p. 333, 334, whereas severance in this case will in my view fulfil testator's intention. The condition as to religious upbringing in the Protestant faith, which I shall later demonstrate is in my opinion a condition precedent relating to vesting, can stand quite consistently with the condition subsequent as to divesting relating to future adherence to the Protestant faith, and compliance in each case requires to be judged at widely different times.

Holding as I do, therefore, that the religious condition is severable, the next step is to decide the crucial question whether the first condition, namely, "Provided he shall have been brought up in the Protestant faith", is in the context of the will a condition precedent or a condition subsequent, for Mr McKay conceded that if it is an unfilfilied, condition precedent, then on the current authorities it is not uncertain, and must take effect, and thus defeat the vesting of respondent's gift, unless the condition is void as being contrary to public policy. This concession is in my opinion rightly made: see Re Allen, cited supra, In re Kearney, [1957] VLR 56, 61 62; and In re Cuming, Nicholls v. Public Trustee and Anor, [1945] HCA 32; (1945) 72 CLR 86.

A condition according to the construction of the will is either a condition precedent, that is to say such that there is no gift intended at all unless and until the condition is fulfilled, or a condition subsequent, that is to say such that non-compliance with the condition is intended to put an end to the gift: 39 Hals. 3rd Ed, p. 915; para. 1387. In the case of Acherley v. Vernon (1739) Will, 153, at pp. 156 - 157 Willes, L.C.J. said:-

"I know of no words that either in a will or deed necessarily make a condition precedent but the same words will either make a condition precedent or subsequent according to the nature of the thing and the intent of the parties. I ask myself, therefore, what this testator really intended to provide?"

The question is always one of extreme difficulty, and Callan, J. (when considering a gift by will upon condition that the donee should be an "adherent of the Church of England") stated in the case of In re Biggs, deceased [1945] NZLR 303, 309:

"I do not propose, unless I must, to express an opinion upon a technical topic in which I am not expert, which I find difficult, and upon which the mass of cases already reported constitutes I think an embarrassment rather than an assistance".

There are, however, certain well recognised principles on which the Courts have acted, and I summarise them as follows: The proper meaning of "vest" is vest in interest, and when a testator uses this word, for example, by directing that the gift is to vest on a certain event, it must, prima facie, be given its proper legal meaning, and the gift is thus contingent until the happening of the event, whether the gift is of real or personal estate. In cases where there is a doubt as to the time of vesting, the presumption is in favour of the early vesting of the gift, and accordingly it vests at the testator's death or at the earliest moment after that date which is possible in the context, whether it is of real or personal estate, and it is presumed that the testator intended the gift to be vested subject to being divested rather than to remain in suspense. Further-more, the presumption of early vesting may assist in determining whether where the position is doubtful a condition is to be construed as precedent or subsequent, and where it is doubtful the Court prima facie favours the construction of a condition as subsequent rather than precedent: Sifton v. Sifton, [1938] AC 656, 676. Nevertheless an estate or interest must remain contingent until there is a person having all the qualifications that the testator requires, and completely answering the description of the object of his bounty in his will. When a postponement of the gift is on account of some qualification attached to the donee, the gift is prima facie contingent on the qualification being acquired, In re Harris deceased, cited supra, at p. 189, and In re Kearney, cited supra, at pp. 62, 63. Thus, a gift to a person "at", "if", "as soon as", "when" or "provided" he attains a certain age, without further context to govern the meaning of the words, is contingent, and vests only on the attainment of the required age, this being a quality or description which the donee must in general possess in order to claim under the gift: Re Francis [1905] UKLawRpCh 71; [1905] 2 Ch. 295; 39 Hals. 3rd Ed. p. 1182, para. 1657.

Construing the gift of the Tuaefu Trust to respondent in accordance with these well established principles, my conclusion is, as previously indicated, that the gift remained contingent until respondent possessed all the qualifications that the testator required, and thus completely answered the description of the donee as disclosed by clause 20 of the will. The words "shall become the property of" my grandson, are words of futurity, directed to take effect only on the happening of a future event, namely, "when he has reached the age of 25", In my opinion they also connote becoming entitled to a legal interest or estate and are not the equivalent of "shall take effect" which the Privy Council had to consider in Bickersteth v. Shanu [1936] 1 All ER 227. The gift is thus prima facie contingent on the attainment of 25 years of age, and on fulfilment of the further contingent conditions as to the acquisition of European status, the assumption of the surname of Nelson, and, if the religious condition be severable, as I think it is, an upbringing in the Protestant faith.

An examination of a number of comparable conditions assists this conclusion. In re Allen deceased, Faith v. Allen and others, cited supra, testator devised real property to the eldest of the sons of F, "who shall be a member of the Church of England and an adherent to the doctrine of that Church", and in case there should be no such son, then over to W. At first instance Vaisey, J. held this to be a condition precedent, see [1933] 2 All ER pp. 312, 313, though he went on to hold that the terms "member of the Church of England and adherent to the doctrine of that Church" were incapable of exact definition, and that therefore the condition was void for uncertainty. Sir Raymond Evershed, M.R. as he then was, and Birkett and Romer, L.J.Js, at pp. 898, 906 and 909, were of opinion that the condition or qualification was a condition precedent. The former said that it was clear from the judgment in the Court below that Vaisey, J. regarded the condition as either a condition precedent or a qualification distinct in either case from a condition subsequent, and the learned Master of the Rolls stated that in his opinion "this was plainly right". He then proceeded:-

"The effect of such a formula as part of a condition subsequent differs from its effect as a condition precedent or as part of a qualification or limitation"

and he then demonstrated conclusively that the strictness of the special rule as to forfeiture conditions was the basis of all the opinions of the noble Lords in Clayton v. Ramsden, cited supra:

"Had the language of the condition relating to the Jewish faith formed part of a qualification or condition precedent, it is probable at least that the decision of the House would have been in a sense opposite to that in the case which was decided. It follows also, I think, that the principles applicable to a condition precedent must be taken materially to differ from those applicable to a condition subsequent (and it is not always easy to determine whether a condition is of the one kind or the other)".

In Re Harris, deceased [1949] VicLawRp 51; [1950] VLR 182, testatrix directed her trustees to hold the balance of the net annual income of her estate on protective trusts for the benefit of certain persons "as are then alive and in such year remain of the Jewish faith and have not married outside the Jewish faith". Fullagar, J. held that the words referring to the Jewish faith were part of the description of the class of intended beneficiaries, and did not create a condition subsequent. Accordingly, such words were not to be treated as void for uncertainty, and he carefully distinguished Clayton v. Ramsden, supra.

Dealing with the fulfilment of the condition precedent, the learned Judge stated:

"The burden of proving that he or she came within the description at the death of the testatrix lies upon each of the named persons".

In W.R. Patton v. Toronto General Trusts Corporation, [1930] AC 629, the testator bequeathed his grandson an annuity provided that he was and proved himself "to be of the Lutheran religion". Until he was 25 years of age the annuity was to be paid to his mother for his benefit. The Courts of Ontario held - the appellate division, however, being equally divided on the question - that the grandson had lost both annuities by reason of his failure to comply with what the learned Judges considered to be a condition precedent to the enjoyment of either annuity, namely, that at the date of testator's will, or, alternatively, at his death, the appellant should, amongst other things, have been and should have proved himself "to be of the Lutheran religion". The Judicial Committee did not suggest that this condition was not part of a condition precedent to the enjoyment of the annuities, and the validity of the condition was assumed and acted on by the Committee, Re Allen, cited supra, at p. 902.

In Birtwistle v. Hyers [1900] 25 VLR 104, a testatrix gave her two grandsons "conditional upon their respectively being brought up in the Roman Catholic faith until the age of 21 years, the sum of £500 each, to be paid to them respectively if and when they shall attain the age of 21 years, but without interim interest". Hood, J. held that the gift of the legacies was subject to a condition precedent, that the children should, until they attained 21, be brought up in the Roman Catholic faith, and was not affected by the fact that there was no gift over if they were not so brought up. In the course of his judgment he observed;-

"The testatrix had a right to attach any condition she pleased, not illegal in itself, and an important distinction is to be drawn between conditions precedent or subsequent. In this case I think it is a condition precedent. The legacies fail if the children are not brought up till 21 years of age as Roman Catholics. Giving the words attached to the gift of the legacies themselves their natural meaning if the children are not brought up until the age of 21 years as Roman Catholics, they are not entitled to the legacies".

An appeal from this judgment was dismissed, and Madden, C.J., delivering the judgment of the Appeal Court, stated:-

"It is perfectly plain, therefore, that she postpones the vesting of those legacies until the condition is fulfilled".

In Re Going, 1951, Ontario Reports, 147, testatrix directed her executors to set up a fund to be accumulated until 1950, and then to be divided between her two nephews, "but only in the event of their being members and adherents in good faith and standing in a Protestant Church", failing which there was a gift over. The nephews were both of age in 1950, but neither of them was a member of a Protestant Church. The condition was held to be a condition precedent.

In Re Wallace, Champion v. Wallace [1920] 2 Ch. 274, 281, 286, 298, testator, by his will, directed in the events which happened that the capital of his residuary estate on the determination of certain prior trusts affecting the income thereof, should go to and vest in the testator's sole surviving son -

"if he should have acquired the title of Baronet or other title superior thereto, but if he should not have acquired the title of Baronet or other title superior thereto, then over ........"

The condition was a condition precedent, said Lord Sterndale, M.R., Warrington and Younger, L.J.Js . The religious "condition" as to upbringing, being incorporated as it is in the fourfold description of the donee, is not a mere condition subsequent, but in my view constitutes one of several conditions precedent See also Church Property Trustees v. Ebbeck [1960] HCA 88; (1960) 104 CLR 394, 404; Re Tarnpolsk, deceased [1958] 3 All ER 479, 480; In re Cuming [1945] HCA 32; (1945) 72 CLR 86, 92, per Latham, C .J.; In re. Kearney [1957] VLR 56, 62; Re Mylne, Potter v. Dowl, [1941] Ch. 204, 208; Re Piper [1946] 2 All ER 503, 505; In re Wilson deceased, Perpetual Trustees Estate and Agency Co Ltd of New Zealand and Another v. Wilson and Others, [1947] NZGazLawRp 77; [1947] NZLR 847, 856; and In re Blake, deceased (1955) LR 89, 95, per Dixon, J.

In re Crane, deceased [1949] VicLawRp 58; [1950] VLR 192, is distinguishable for it clearly involved a forfeiture as opposed to a qualifying clause. A testator by will divided his estate into certain parts, and as to one of such parts he provided that should his child or children "be brought up according to the rites of the Church of England", then his trustee was to hold such part in trust for his widow during her life, but that should his child or children "not be brought up according to the rites of the Church of England", then his trustee was to hold such part on certain other specified trusts. Dean, J. held that the condition that the child or children "be brought up according to the rites of the Church of England", was a condition subsequent and being (a) uncertain, and (b) contrary to public policy, was void. In the course of his judgment the learned Judge observed:-

"Bringing up a child is a continuous process, and I think that what testator had in mind was to give the widow the income each year if, during such year, she was bringing up the children according to the rites of the Church of England. Construed in this way the clause is more easily read as a condition subsequent, her right to income ceasing upon a breach of the condition".

Our case appears to me to be distinguishable on the ground that the religious condition as to upbringing is a condition precedent, and its fulfilment or otherwise, in conjunction with the other conditions precedent in clause 20, could be determined when respondent attained 25. In other words, in our case testator provided a fixed date for testing compliance with the condition precedent, and upbringing, though it may be a continuous process, caused on any reasonable construction at either 21 or, on the special terms on the will, at 25.

I pass on to examine what is usually referred to as the rule in Phipps v. Ackers (1842) 9 Cl. & Fin. 583, 590, 594; 8 ER 539; which had its origin in Edwards v. Hamon [1797] EngR 151; (1684) 3 Lev. 132; 83 ER 614. The rule may be stated as follows:-

Where real estate is devised to the devisee "if" or "when" he attains a specified age, and there is a gift over in the event of his failing to attain that age with or without other contingencies, the attainment of the age is heist to be a condition subsequent, and not precedent, and the estate is vested immediately subject to its being divested if the devisee dies under that age.

The rule does not apply where there is an express direction as to vesting, and it is not required where vesting is implied from a trust for maintenance out of the intermediate income. There is no difference in this respect between devises to individuals and devises to classes when, for instance, the devise is to children as they respectively attain a specified age, but, if all shall die under that age, over, and it is now settled that the rule applies to personal as well as to real estate, Gower v. Public Trustee [1924] NZGazLawRp 40; [1924] NZLR 1233, 1260; Whitter v Brembridge [1866] UKLawRpEq 159; (1866) LR 2 Eq. 736; In re Heath, Public Trustee v. Health [1936] 1 Ch. 259.

In Phipps v. Ackers, cited supra, the testator directed that his trustees should stand seized of certain lands in trust to convey the same to his godson G.H.A. "when and as soon as he should attain the age of 21 years", but in case he should die before he attained that age, without leaving issue of his body, then the said lands should sink into the residue of the testator's real and personal estate, and he gave the residue to J.C. At the testator's death G.H.A. was only 12 years of age. Lord Chief Justice Tindal, delivering the opinion of the Judges, at p. 590 said:-

"It is not necessary for us to say what would be the legal effect of a simple devise to A and his heirs when or if he should attain 21, without any concomitant provisions calculated to show whether the testator did or did not mean to treat the attaining of 21 as a condition precedent..... Whatever might be the true meaning of such a devise if it should occur by itself, there is ample authority for saying that such words may, from the context, be taken not to indicate the time when the estate is to vest, but to point out an event on the happening of which an estate already vested is to be divested in favour of some other person."

After referring to cases preceded by an earlier life interest, which Counsel concede have no application in the present case, the Lord Chief Justice continued:-

"The second class of case goes on the principle that the subsequent gift over in the event of the devisee dying under 21, sufficiently shows the meaning of the testator to have been that the first devisee should take whatever interest the party claiming under the devise over is not entitled to, which, of course, gives him an immediate interest, subject only to the chance of its being divested on a future contingency. Whether the doctrine on which this second class of cases has rested was originally altogether satisfactory, is a point which we need not discuss. It is sufficient to say that it clearly has been established and recognised as a settled rule of construction, not only in the Courts below but also in Your Lordships House, and that rule appears to us clearly to govern the case put to us by Your Lordships; in conformity with which rule, therefore, we take leave to state, that on the question put to us, we are of opinion that G.H.A. on the decease of the testator, took en estate in fee simple in the lands and her editaments at W, subject to being divested in the event of his dying under 21 and without issue."

In the present case clause 21 directs that the interest which the respondent would have taken, namely the Tuaefu Trust shall revert to the five daughters of the testator in the event of him "not being alive on March 1st 1963, or dying after that date without issue". If the matter rested here, one might apply the principle of Phipps v. Ackers as indicating a constructive intention on testator's part to give the respondent an immediate interest on his death, subject to the contingency that I would be divested if he should fail to attain 25 years of age or die after that date without issue. The rule hinges upon the significance which the Courts have been prepared to attribute to the gift over.

In re Heath, Public Trustee v. Heath [1936] 1 Ch. 259; there was a gift of £5,000 to a granddaughter if she should be living at the date of death of the survivor of the testator and his wife, with a gift over in the event of the granddaughter not attaining 21 or marrying under that age. Notwithstanding that there was more than one contingency and an incomplete gift over, Farwell, J. considered the rule in Phipps v. Ackers applied, and that accordingly the gift was vested subject to divesting, and thus was not contingent. In the course of his judgment the learned Judge at p. 262 determined that the rule of construction in the case of a devise of real estate may apply notwithstanding that there may be more than one contingency .... Further, it appears from the cases that the rule is applicable in a case where the gift is a gift of both personalty and realty, but he concluded at p. 265, with the following significant reservation.

"But there is this to be remembered, the rule in Phipps v. Ackers is a rule of construction only and therefore a rule which, whether the gift be of real estate or of real and personal estate, may be excluded if it appears from the will itself that the prima facie rule of construction was not intended to apply. One has, therefore, to look at the will as a whole in each case to see whether there is anything which excludes what otherwise is the prima facie rule of construction".

In Bromfield v. Crowder, B. & P. (E.R.) 313, the second gift over was dependent on a double contingency, but the gift over was complete in the sense that it covered both contingencies.

After analysing the will in the present case, I am of opinion that the contingent qualifications imposed on the respondent by clause 20, and the words in clause 20(a), "unless and until the foregoing clause 20 shall have become operative my eldest grandson shall have no prior right, etc.", and the fact that the gift over in clause 21 makes no reference to failure to acquire European status, failure to assume the surname of Nelson, or failure to be brought up in the Protestant faith, suffice to disclose testator's true intention, namely, that the Tuaefu Trust was not to vest in respondent "unless and until" he fulfilled the required conditions. The rule in Phipps v. Ackers as it is now called, was first stated solely in relation to a devise of real estate conditional upon the attainment of a specified age, where there was a gift over dealing completely with the non-fulfilment of this age qualification: see Edwards v. Haman, 1684, cited supra. Over the years it has been extended to personalty and to an age qualification with or without ether contingencies, but in my view this process of extension must be halted at some point.

In Re Belcher, Bellard v. Belcher [1913] NZGazLawRp 149; (1913) 32 NZLR 1336, a testator gave his wife a life interest in the residue of his estate. The will then continued:-

"And after the death of my said wife and as and when my children being sons respectively attain the age of 31 years, having lawful issue of their bodies capable of inheriting real property under the law of England, I direct my trustees to transfer and convey to my said children being sons and having lawful issue as aforesaid the respective properties following....."

The will proceeded to name the properties charging the rents and profits arising therefrom with a yearly payment in favour of [text not clear] daughters, and then provided:-

"That until the absolute vesting of the said respective properties directed to be transferred and conveyed to my sons as aforesaid the said trustees shall after the death of my said wife stand possessed of the said respective properties upon trust to pay the respective incomes and rents or profits derived therefrom to my said sons respectively".

This direction as to the payment of intermediate income to the sons was itself an indication in favour of early vesting which the Court might well have regarded as conclusive in itself: Re Aster [1922] 1 Ch. 364, 368. The will then contained the following gift over clause:-

"Should any of my children other than my son Thomas die before attaining the age of 31 years without leaving lawful issue.... I direct that the devise herein to such child shall lapse and the bequest to such child shall be converted into money and be divided amongst his or her surviving brothers and sisters in the same manner and trusts if any in all respects as the specific bequest to such surviving children".

The will contained no other devise of residue but the lapse clause. The sons had attained 31 but had no issue. Sim, J. delivering the judgment of the Court of Appeal in New Zealand, and referring to the second class of case mentioned by Tindal, C.J. in Phipps v. Ackers, continued:-

"Then there is a gift over in the event of any son dying before attaining the age of 31 years without leaving lawful issue. That brings it within the second class of cases. It is clear, therefore, that each of the two sons in question took an immediately vested estate in remainder, subject to it being divested in certain contingencies. If the only contingency provided for had been that mentioned in the gift over, then the case would have come exactly within the decision of the House of Lords in Phipps v. Ackers, and as both sons have attained the age of 31 years the estates would now be absolutely vested. The gift over deals only with the contingency of a son dying under the age of 31 without leaving lawful issue. That contingency did not arise and the gift over cannot take effect now. Before, however, the estate can be completely and absolutely vested another condition must be complied with, that is the condition contained in the trust to convey. It is that each son shall have lawful issue of his body capable of inheriting real property under the law of England. Failure to comply with that condition will divest the estate now vested. The effect of the will, therefore, is that before either of the two sons acquires an absolutely and completely vested estate in fee simple in the land, he must attain the age of 31 years, and must have issue capable of inheriting. If either of them dies without having had such issue, then his estate is divested and as there is no residuary devise in the will the land will pass as on an intestacy."

Apart from the incomplete gift over, this decision is a tolerably clear application of the rule in Phipps v. Ackers, and although the sons had attained 31 without issue, the fact that there was no gift over in the event of the non-fulfilment of the final condition, namely, having issue capable of inheriting real property under the law of England, did not prevent vesting subject to this final condition subsequent, and the second principle referred to in Phipps v. Ackers was applied. The additional condition did not affect the application of the rule even though the effect of its non-fulfilment meant that the estate passed as on an intestacy.

This decision was followed by the New Zealand Court of Appeal in the case of In re Gower, Gower v. Public Trustee, [1924] NZLR 123). The testator there devised and bequeathed certain lands upon trust "for my said son for his life and so long as he shall not become a Roman Catholic", with limitations over on his death or disqualification. Testator also gave to his widow while she remained such the use of his dwelling house "until my said son shall attain the age of 21 years or becomes a Roman Catholic", and gave the residue of his estate upon trust for his son "on his attaining the age of 21 years and not being a Roman Catholic", with limitations over in the event of the death before 21 or disqualification of the son. It was held that the conditions attached to the gifts to the son were not void as being contrary to public policy; that the condition attached to the gift of residue was a condition subsequent and not a condition precedent, and where a condition subsequent attached to a testamentary gift is void for uncertainty the beneficiary takes the gift absolutely; that a devise or bequest to a beneficiary at a specified age and then free from a specified disqualification, followed by a gift over on his death before or disqualification at that age, confers an immediate vested interest, subject to the condition subsequent of his surviving without disqualification until the age specified. In the Supreme Court, Stout, C.J. stated at p. 1238:-

"It could not be said that the son could be asked to determine his religion until he become 21 years of age .... it is only when he (the son) is 21 years of age that the (residuary) gift is to enure. If he does not reach 21 years of age the gift is not vested in him".

In other words, he treated the condition as a condition precedent or qualification to be fulfilled by the donee. Adams, J. pointed out on appeal at p. 1267:-

"On the argument it was submitted and assumed that the condition annexed to the gift of residue was a condition precedent, but upon further consideration I am of opinion that this was wrong".

Salmond, J. at p. 1259, stated: -

"It may be contended, however, that there is a material distinction between the gift of the life estate and the gift of the residue, inasmuch as the condition in the first case is a condition subsequent, and in the second case a condition precedent I do not think it necessary for the purposes of this case to determine the application and effect of the rule as to uncertainty in the case of conditions precedent, for the condition attached to the gift of residue is, I think, a condition subsequent and not a condition precedent. The gift is to the son 'on his attaining the age of 21 years and not being a Roman Catholic'."

The learned Judge then proceeded to apply the rule in Phipps v. Ackers, to which there is no reference in the arguments, but which he said had been recognised and applied by the Court of Appeal in Re Belcher, cited supra. His conclusion was that it was applicable to the case in question, and -

"that the gift of residue conferred an immediate vested interest on the son of the testator subject to the condition subsequent of surviving until he is 21, and (if the condition is valid) not being a Roman Catholic when he attained 21. It is true that the terms of the gift of residue include expressions which in themselves suggest that the condition is precedent. The will refers to the event of the sun 'being disqualified from succeeding to such residuary personal estate by reason of his being a Roman Catholic'. It is, however, the essence of the rule in Phipps v. Ackers that words which would otherwise create a condition precedent are to be construed by reason of the gift over - which in this case was complete - as creating merely a condition subsequent. I consider accordingly that the condition of not being a Roman Catholic is a condition subsequent".

Incidentally, Salmond, J. gave as an example of an effective or valid condition subsequent that the son's life estate should be forfeited "if he was confirmed as a Roman Catholic, or if he was educated in a Roman Catholic School, or if he attended a Roman Catholic Church, or if, after attaining a specified age, he thereafter held or professed the Roman Catholic faith", see pp. 1256, 1257.

In my view the application of Phipps v. Ackers in Gower's case was a questionable extension of the rule, and contrary to testator's intention as disclosed in his will, and, as held by Stout, C.J. and assumed by Counsel throughout, the condition as to religion was a true condition precedent. Our case is stronger because the gift over in clause 21 deals with two non-voluntary conditions only, namely, a failure to attain 25, and dying after that age without issue. I consider that Callan, J. had this distinction in mind when he stated in In re Biggs, deceased [1945] NZLR 303, at p. 309, when discussing Public Trustee v. Gower:

"The Court of Appeal held the conditions to be subsequent not precedent although it appears that the contrary had been submitted and assumed by Counsel. The Court followed its own decision in In re Belcher, cited above. There the condition superadded to the attainment of a certain age was having lawful issue capable, etc., but it may be argued that this is a matter in which fate as well as volition plays a part, and it is not in the same category as a condition that a beneficiary should bear a particular surname or be an adherent of a particular church".

I acknowledge that where there is room for doubt the tendency is to treat a condition as a condition subsequent, but this must always be subject to the intention of the testator as revealed in his will, and I am satisfied that the condition as to upbringing in the Protestant faith is in this case a condition precedent. I am also reluctant, unless constrained to do so, to construe a Samoan will made in 1943, and which disposes of realty and personalty, in accordance with an artificial rule of construction laid down in 1684 in the reign of Charles II in regard to a devise of realty in England, more particularly in the absence of a complete gift over which was the corner stone of the original decision, and I prefer to strive to ascertain testator's intention, if possible, in the language of his will.

The question of public policy remains to be dealt with. Respondent contends that the religious condition is void as being contrary to public policy. In Clayton v. Ramsden [1943] 1 All ER 15, at p. 20, Lord Romer, in discussing the condition subsequent relating to religion, observed:-

"He was one of those testators, of whom I venture to think there have been far too many, who, by means of a forfeiture clause, have sought to compel a person to whom benefits are given by the will to act or refrain from acting in matters concerned with religion not in accordance with the dictates of his own conscience but in accordance with the religious convictions of the testator himself. That a testator may do this should he so desire is beyond question, but in such a case it behaves him to define with the greatest precision and in the clearest language any event under which the forfeiture of the interest given to the beneficiary is to take place".

Similarly, in the Court of Appeal, Lord Greene, M.R. observed at [1941] All ER 196, 199:-

"The testator in this case did what many testators do or attempt to do, namely, direct the lives of his children from the grave. Such a thing is distasteful to many people and I can well understand the desire of a Court to escape from such a result if the language used and the law applicable so permit".

Those observations related to a forfeiture clause, which was also the type of clause under consideration in In re Borwick [1933] 1 Ch. 657, 669, and, as already demonstrated, a condition precedent is less rigidly regarded, for it is one thing to deprive someone of a gift already vested because of non-fulfilment of a coercive religious condition, and quite another to provide that a donee cannot qualify at all for his gift unless he fulfils certain terms, including a condition as to his religion. If clearly expressed, such a condition is to my mind valid, and this is supported by the decision of the New Zealand Court of Appeal in Gower's case at p. 1251, and also by the Privy Council in Patton's case [1930] AC 629, where the validity of the religious condition precedent was assumed and acted on throughout Lord Blancsburgh's judgment, see Re Allen, deceased, cited supra, at p. 902. In Re Lockie, deceased, cited supra, Smith, J. points out at p. 242, when discussing In re Borwick [1933] Ch. 657, and In re Tegg [1936] 2 All ER 878:-

"Notwithstanding these decisions, however, the House of Lords has made it plain in Clayton v. Ramsden that it is beyond question that a testator may impose such a condition if he so desires; that being so, the condition cannot be against public policy. On the other hand, the condition must be sufficiently certain".

It is also to be noted that the contention that the religious condition was contrary to public policy was not raised before Vaisey, J. or in the Court of Appeal in Re Allen deceased, cited supra. In Birtwistle v. Hyers, cited supra, there was no suggestion that this condition precedent was void as being contrary to public policy. In Re Kearney, deceased, [1957] 7 LR 56, 64, Shell, J. could have "side-stepped' this question of public policy for the reason that in the will there under consideration there was no reference to the infancy or the upbringing of any beneficiary, but he examined the two opposing lines of cases on this topic and observed that –

"Having regard to what was said in In re Cuming[1945] HCA 32; , (1945) 72 CLR 86, 97, 99, by Starke, J. and by Dixon, J. involved in In re Sandbrock [1912] UKLawRpCh 95; [1912] 2 Ch. 471, and the cases which followed it, I am not prepared to carry than decided cases require me to do".

Starke, J's observation in Cuming's case was as follows:-

"It is said to be contrary to the policy of the law because it operates to interfere with the legatee's parents in the exercise of their parental duty as regards her religion, In re Sandbrock [1912] UKLawRpCh 95; [1912] 2 Ch. 471; In re Borwick, [1933] 1 Ch. 657; and consequently that the gift is absolute and 'stands pure and simple', but those cases strike me as a rather fanciful application of the rule that conditions against public policy are void".

With this expression of opinion I respectfully agree. No change of religion is forcibly imposed on the donee. Testator merely stipulates, as he is entitled to, the terms on which his gift will take effect, and the donne or his parents are left to exercise their own freedom of choice in regard to religion, but must accept the consequences. Dixon, J. had observed:-

"For a testator to place adherence to religious beliefs and the adherent's pecuniary interest in opposition, is not considered contrary to good morals or to any principle of public policy which the law vindicates by the avoidance of counter stipulations or conditions. The sensibilities of the law appear to be not so refined concerning that moral question considered as affecting the mind of the donee. What is 'seized hold of' in the decided cases on the subject where an infant is involved, is the legal duty of the parent or guardian to decide upon and care for his or her religious instruction. The parent or guardian is not to be perplexed in the discharge of this duty by conditions attached to gifts to his child or his ward involving the loss to the latter of property if in exercising his authority he pursues the course his judgment and his conscience dictate".

With respect, I prefer to follow Gower's case in this regard, Re Lockie, Claytony v. Ramsden, Clavering v. Ellison, and Patton's case - all cited supra - rather than In re Cross [1938] VicLawRp 28; [1938] VLR 221, 230, per Martin, J. In re Crane, deceased [1949] VicLawRp 58; [1950] VLR 192, 196-198, per Dean, J., and, In re Blake, deceased [1955] IR 89, 97, per Dean, J., and I am not prepared to "seize hold of" a "rather fanciful" application of the public policy rule to invalidate a religious qualification imposed, by a donor. In my opinion it is not contrary to public policy for a testator to impose a religious condition upon a legatee, In re Gunn, [1913] NZLR 153, 156. There are no doubt exceptions to this general rule where, for example, a religious condition tends to produce a future separation of husband and wife, Church Property Trustees v. Ebbeck and Others, [1960] HCA 88; (1960) 104 CLR 394, 402, 403, 404; Re Caborne, [1943] 2 All ER 7; or will promote a separation of parent and child, Re Piker, cited supra, at p. 505, per Romer, J., but since the decision of the House of Lords in Clayton v. Ramsden in 1943, and of the New Zealand Court of Appeal in Gower's case in 1924, I am satisfied that a testator may impose a religious qualification upon a donee if he so desires. After all, he is not obliged to make the gift, and if he elects to do so on terms to which he rightly or wrongly attaches importance, why should his clear intention be defeated by a somewhat strained invocation of public policy?

For myself I would therefore allow the appeal, and my answers to the questions submitted would be as follows: -

(1) The religious condition "shall have been brought up in and will continue to remain a professed adherent of a Christian denomination of the Protestant non-Conformist faith" constitutes two severable conditions. The former, relating to upbringing, is a condition precedent, and the latter, relating to continued adherence in such faith, is a condition subsequent.

(2) That the condition precedent is not void as being uncertain or contrary to public policy, and as respondent has failed to satisfy this condition he is not entitled to the Tuaefu Trust, which should be divided as on an intestacy, namely, equally between the testator's five daughters.

Solicitors:	For appellants, G.T. Jackson, Apia.
	For respondent, Swan, Davies & McKay, Wellington