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Published online by Cambridge University Press: 16 January 2009
Mr. S. J. Bailey's article, ‘The Law of Property Act, 1925, s. 130 (2),’ published in this Journal in 1936 (Vol. 6, p. 67), appears to have attracted no dissent and weighty approbation. The article assailed commonly-held but little-discussed views on the effect of the sub-section, and reached conclusions which have been accepted by authorities such as Professor Cheshire. With a due sense of my temerity I propose to launch a frontal attack on this well-entrenched position.
1 Modern Seal Property (5th ed. 1944), p. 357Google Scholaret seq. Mr. Rivington also seems to have been converted by it. Although the second edition of his Law of Property in Land (1937), pp. 102, 103Google Scholar, does not directly cite the article for the point in question, the article is referred to on p. 102 and Mr. Bailey's view adopted, in contrast with the 1st ed. (1930), p. 101. Parry, , Law of Succession (1937), pp. 113, 125Google Scholar, cites the article without dissent. Practitioners' books concur in reticence on the point.
2 The warning on construing the 1925 legislation to be found in Re Turner's Will Trusts [1937]Google Scholar Ch. 15, led me to look at the Law of Property Act, 1922, s. 17 (2), where sect. 130 (2) of the Law of Property Act, 1925, originally appeared; however, the two sub-sections are identical in all the relevant parts.
3 See post, p. 50.Google Scholar Instead of being called ‘The Law of Property Act, 1925, s. 130 (2),’ the article might well have been called ‘Construction of limitations “To A and his issue” and similar informal expressions.’
4 The report of Re Compton [1944] 2Google Scholar All E. R. 255, at 259, 260 (see post, note 12), does not disclose whether the donee had issue living at the date of the gift, so that it cannot be said whether the apparent failure to urge Mr. Bailey's view was due to the facts making it immaterial or counsel's lack of faith in it.
5 The King's Printer's copy is punctuated thus, but this comma seems to have been wrongly inserted.
6 See Re Brownlie [1938] 4 All E. R. 54.Google Scholar This case, which is of no great general importance, has been unfortunately treated by the digests. It is, of course, omitted from the soi disant ‘Complete Current Digest’ published by the Incorporated Council for Law Reporting; the usefulness of this Digest is much diminished by the consistent omission of all mention of the All England Reports. Mews' Digest, which normally includes this series of Reports, appears to have overlooked the case in its 1938 volume. Only Butterworth's Yearly Digest, 1938, duly includes it (col. 384).
7 Bailey, , pp. 70, 71.Google Scholar
8 Ibid., pp. 72–74.
10 Ibid., 68.
11 See especially, p. 81 ad fin. (‘Accordingly when a phrase … personalty by deed.’)
12 A further limitation of the scope of the sub-section is indicated by Re Compton [1944] 2Google Scholar All E. R. 255, at 260, where in a passage omitted from the reports at [1944] Ch.378; 113 L.J.Ch.219; 171 L.T. 96; 60 T. L. R. 485; 88 S. J. 262; [1944] W. N. 176, Cohen J. seems to have taken the view that the sub-section does not apply to expressions in executory instruments. The sub-section starts ‘Expressions contained in an instrument coming into operation after [1925] …’; the effect of Re Compton appears to be to add the words ‘(not being an executory instrument)’ after the word ‘instrument.’ No reasons for this view are reported, the wording of the sub-section (which shows that the draftsman was perfectly well able to add ‘not being an executory instrument’ when he wished) provides little support for it, and it has been criticised: see Gower (1944) 7Google Scholar Mod. L. R. 233, 234. Yet it may well be sound: consider, for example, the difference in the application of the rule in Shelley's Case (1581) 1Google Scholar Co. Rep. 88 b, before 1926 to executory instruments and to other instruments; and the views expressed in Lewin, , Trusts (14th ed., 1939), p. 69Google Scholar, appear to accord with those taken in Re Compton.
13 See post, p. 53.Google Scholar
14 P. 75.
15 P. 80.
16 P. 81; and see p. 68, last sentence of para. 1. See also Emmet, , Notes on Perusing Title (12th ed., 1930–1931), Vol. 2, p. 448, and contrast Vol. 1, p. 592.Google Scholar
17 It may at first sight seem odd that the sub-section should be drafted referentially instead of absolutely; the draftsman, it might be urged, should have stated in direct terms what interests would be taken instead of using similar limitations of personalty before 1926 as his touchstone for the estate taken today. One explanation, of course, is that this is merely another example of that tortuosity of mind which some regard as the inherent vice of modern draftsmanship. Yet without descending to such criticism, the referential drafting may be explained in the following way. If the draftsman had simply said that the result of using informal words would be to create ‘absolute or fee simple interests,’ there might have been some doubt about the effect of limitations defeasible by condition subsequent or determinable interests: cf. Re Chardon [1928] Ch. 464, at 469.Google Scholar In order to cover such cases, he added suitable words (‘or other interests’) and then had to find some convenient expression to confine these added words within due limits. Faced with such a situation, a definition by reference to interests in personalty before 1926 offered a convenient solution; it is not easy to find another as good. Jenks, ' Digest of English Civil Law (3rd ed., 1938), p. 652Google Scholar, indeed states that ‘The words “fee simple or other interests” are misleading,’ but it is perhaps permissible to dissent.
18 P. 82; and see p. 68, n.6.
19 P. 82.