Wright's Trustees v Callender

The Appellate Committee held that the testator and testatrix did not intend that persons who became legitimated by changes in the law after the trust dispositions had come into operation should be admitted as beneficiaries. The expressions "issue" and "great-grandchildren" in the respective deeds were to be read as referring to persons who answered the description of legitimate according to the law contemplated by the makers when the dispositions came into operation. The House relied on the construction of testamentary intention, the authorities on changes in succession law, and on the saving provisions in the English and Scottish legitimation statutes (notably the Legitimacy Act 1959 and the Legitimation (Scotland) Act 1968) which limited the retrospective effect of legitimation for dispositions already in operation.

This was a special case concerning the construction of two testamentary trust dispositions (dated 1912 and 1925) following the deaths of the testator (1917) and the testatrix (1932). The trustees, a residual legatee (the second party) and three persons legitimated by later statute (the third parties) asked the Court for directions whether the three persons qualified as "issue" under the earlier deed and as "great-grandchildren" under the later deed when the estate vested in 1989.

The legal issue was whether qualification as a beneficiary depended on the status of legitimacy at the date the dispositions came into operation or at the later date when the succession vested, in circumstances where the law of legitimacy in England and Scotland had been changed between those dates (Legitimacy Act 1959 and Legitimation (Scotland) Act 1968). The Inner House answered both questions in the affirmative for the third parties (1992 S.C. 48). The second party appealed.

The House analysed authority including Cockburn's Trustees v. Dundas, Nimmo v. Murray's Trustees, Maxwell v. Maxwell, Smith's Trustees v. Macpherson and Spencer's Trustees and Ruggles, and considered the statutory saving provisions in the legitimation Acts. The majority concluded that, on proper construction and having regard to the makers' presumed intention and to the statutory limitations on the retrospective effect of legitimation, the deeds did not admit persons who became legitimated only by later statutory change. The appeal was allowed and both questions in the special case were answered in the negative.

• Nature of the application: A special case seeking judicial determination whether three persons legitimated after the dispositions came into operation qualified as beneficiaries under the terms "issue" and "great-grandchildren".
• Issues framed: whether legitimacy for qualification is to be determined by law at the time the dispositions came into operation or by the law at the time of vesting; effect of later legitimation statutes and their saving provisions.
• Court’s reasoning: examined testamentary intention, comparative authority on changes in succession law, and statutory limitations on retrospective legitimation; concluded makers would not have contemplated changes that would expand the beneficiary class and that saving provisions support treating pre-existing dispositions as unaffected by subsequent legitimation.

Appeal allowed. The House held that the testator and testatrix did not intend the beneficiary classes to be enlarged by subsequent changes in the law of legitimation; persons legitimated only by statutes enacted after the dispositions came into operation do not qualify as "issue" or "great-grandchildren" under those deeds. The statutory saving provisions in the English and Scottish legitimation Acts supported that construction.

A special case was referred to the Court of Session (Inner House). On 25 October 1991 the Extra Division of the Inner House (Lords Allanbridge, Cullen and Brand) answered the questions in the special case in the affirmative (reported 1992 S.C. 48). The second party appealed to the Appellate Committee of the House of Lords which allowed the appeal on 28 January 1993 ([1993] UKHL 13).