Howard v Howard-Lawson

A name and arms clause must be construed according to its particular wording and the scheme of the instrument. Where the clause links assumption of a surname and arms to a royal licence, the beneficiary need not use the surname before lawful authority has been obtained. Applying for the licence within the specified period and thereafter genuinely pursuing the application may satisfy the condition, even though the licence is granted later. The beneficiary need not obtain the licence within that period unless the clause expressly requires this. Forfeiture provisions are construed against the person seeking to rely on forfeiture.

The claimant, Philip William Howard, sought a declaration that his father, Sir John Howard-Lawson, had forfeited his interest in the Corby Estate under clause 8 of Philip John Canning Howard’s 1930 Will. The clause required successive beneficiaries to take and use the Howard surname and arms, and to apply for and endeavour to obtain a royal licence where necessary. The defendant became entitled in possession after the earlier decision in In re Howard’s Will Trusts [1961] Ch 507. He applied for a royal licence within the relevant year, but the licence was granted after its expiry. The preliminary issue was whether, on the true construction of clause 8, that delay caused forfeiture.

1. Construction of the clause. The requirements concerning the Howard surname and arms were to be treated as an entity at the stage of initial assumption. The clause contemplated the royal licence as the formal method of authorising both the change of surname and the right to bear the arms. The defendant therefore could not properly have used the Howard surname in anticipation of the licence. Once lawful authority had been obtained, use of the surname and use of the arms became separate continuing requirements.
2. Effect of Re Neeld deceased, Carpenter v Inigo-Jones [1962] Ch 643. That decision was persuasive but concerned differently worded provisions and a different question, namely validity for uncertainty. The present clause had to be construed on its own wording.
3. Forfeiture provision. The words requiring the beneficiary to apply for and endeavour to obtain the royal licence were sufficient to avoid forfeiture if the application was made within the one-year period and was thereafter genuinely pursued. The clause did not require the licence itself to be obtained within that period. A construction imposing that requirement would leave the provision concerning application for a licence without effective operation in relation to the arms and would be untenable. The forfeiture clause was in any event construed against the person relying on it.
4. The defendant’s earlier deed, entered into before the relevant entitlement and before the judgment establishing the clause’s validity, did not amount to a refusal during the operative year. He applied within the year, used reasonable endeavours, and obtained the licence shortly afterwards.
5. There was consequently no forfeiture under clause 8 of the Will.

This was a first-instance trial of a preliminary issue. The judgment records earlier proceedings concerning the validity of the name and arms clause in In re Howard’s Will Trusts [1961] Ch 507, but the present court was not hearing an appeal from that decision.