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Williams v Hensman and the uses of history

Published online by Cambridge University Press:  02 January 2018

Peter Luther
Peter Luther*
Affiliation:
University of Essex
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Extract

When the topic of severance of a beneficial joint tenancy is discussed, most judges and academics start with the case of Williams v Hensman. The judgment of Sir William Page Wood V-C is the ‘locus classicus’, the ‘starting point for any discussion of the modem law’. One paragraph of Page Wood's judgment is quoted in case after case:

‘A joint tenancy may be severed in three ways: in the first place, an act of one of the persons interested operating on his own share may create a severance as to that share. The right of each joint tenant is a right by survivorship only in the event of no severance having taken place of the share which is claimed under the jus accrescendi. Each one is at liberty to dispose of his own interest in such a manner as to sever it from the joint fund - losing, of course, at the same time, his own right of survivorship.

Type
Research Article
Information
Legal Studies , Volume 15 , Issue 2 , July 1995 , pp. 219 - 235
Copyright
Copyright © Society of Legal Scholars 1995

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References

1 (1861) 1 J & H 546,70 ER 862. The case is also reported in substantially similar words at 5 LTNS 203, and with some differences at 30 LJNS (Ch) 870.

2 R Megarry & HWR Wade Law of Real Properry (5th edn), p 432 n 45, MP Thompson Co-ownership, 19, P Butt ‘Severance of Joint Tenancies in Matrimonial Property’, (1982) 9 Sydney Law Rev 568.

3 AJ McClean ‘Severance of Joint Tenancies’ (1979) 57 Can Bar Rev 1 at 2, echoing Lord Denning in Burgess v Rawnsley [ 19751 1 Ch 429 at 438: ‘nowadays everyone starts with … Williams v Hensman’.

4 The text is normally, as here, quoted from Johnson and Hemming's Reports. The version in the Law Journal appears to garble the first method of severance. None of these texts is necessarily ‘better’ than the others: although the Law Jountal report of Williams v Hensman appears the least acceptable, there are times when this series of reports gives the text of judgments in a form which both makes more sense, and appears from its style to be closer to the judge's actual words: compare the reports of Harrison v Barton (1860) 1 J & H 287, 70 ER 756; 3 LTNS 614; 30 LJNS (Ch) 213. The English Reports reprint of Johnson and Hemming's text of Williams v Hensman misprints ‘affected as ‘effected‘. The function of a law reporter at this time was still clearly that of an editor: Johnson andHemming's common law contemporaries Best and Smith were praised for ‘the care and success with which extraneous matter is stripped off, and the essence of the case presented’ (JW Wallace The Reporters (4th edn, 530) quoting the London Law Magazine and Review).

5 By s 36(2) of the Law of Property Act 1925. The reference in s 36 to ‘such other acts or things as would, in the case of personal estate, have been effectual to sever the tenancy in equity’ - described as ‘rather elliptic’ (Walton J in Nielsen-Jones v Fedden [ 19751 Ch 222 at 229B) and ‘rather long-winded’ (Blackett-Ord J in Gore and Snell v Carpenter (1990) 60 P & CR 456 at 461) appears designed to reinforce the applicability of Williams v Hensman (and other personal property cases) to land.

6 By Stockdale J in McDowell v Hirschfield Lipson & Rumney and Smith [ 19921 2 FLR 126 at 128. This cheerful analogy ignores the fact that it is not, of course, the deceased joint tenant who suffers if his gamble should fail.

7 For an analysis of - and attack on - such scepticism, see Neil MacCormick, ‘Why Cases Have Rationes and What These Are’, in (ed L Goldstein), Precedent in Law, (Oxford, 1987).

8 Atlay, Victorian Chancellors, ii, 367, quoted in Holdsworth, History of English Law, xvi, 94. Holdsworth also provides examples of the ‘number of well known and important cases’ decided by Page Wood as Vice-Chancellor. He does not mention Williams v Hensman.

9 Rolt, Memoirs, 119, quoted Holdsworth, op cit 93. Sir John Rolt, later Attorney- General and Lord Justice of Appeal in Chancery (see Dictionary of National Biography XVII, 173-4) appeared for the plaintiff in Williams v Hensman.

10 Campbell's criticisms, the letter in support of Page Wood, and Campbell's reply are all quoted by Page Wood's nephew and biographer, WRW Stephens, in his Memoir of the Right Honourable William Page Wood, Baron Hatherley (London, Richard Bentley and Son, 1883) at p 88-95. Holdsworth's reference to Campbell's reply as a ‘sort of apology’ is something of an overstatement.

11 Stephens. Memoir, 87.

12 Ibid.

13 The Dictionary of National Biography records (XXI, 852) that ‘his practice, only once departed from, was to deliver oral judgments only’. DNB provides a more favourable account of Page Wood's career than other sources; the entry was written by JA Hamilton, later Lord Sumner, who shared Page Wood's fondness for extempore judgments, though to greater effect (see DNB Supp 1931-40, 392-5).

14 See Holdsworth, op cit, 92.

15 Being careful all the time to keep everything in the family: two had mortgaged their shares to yet another sister, the third to the administrator of the will - also a Hensman. The trust in relatives appears to have been misplaced: at one point money was lost from the fund ‘through the deficiency of a person into whose hands the same was paid’. Buswell Hensman, the administrator of the will, acknowledged liability for the sum lost: it appears that the ‘person deficient’, described in one of the documents as ‘solicitor for all the parties’ was his son, who is described elsewhere in the report as ‘having acted as his [ie Buswell’s] solicitor, and generally as adviser of the family’. And when one of the daughters (Bethiah) asked for her share of the fund, she did not receive it ‘in consequence of the trustee having mixed up the fund with his own property, and not being prepared to convert it immediately’. It took an ‘outsider’, Frederick Williams, to get the Hensmans to the Court of Chancery.

16 Marriage settlements were not an issue: neither Bethiah nor Sarah had married, and Caroline had not executed a settlement on her marriage to Frederick Williams (this fact is mentioned only in the Law Times report of the case).

17 See above, n 15 for the rather peculiar circumstances behind this.

18 Since 1925 the focus of attention has been oral declarations: a written declaration will normally satisfy s 36(2) of the LPA 1925, see above, n 5.

19 This expression of doubt as to the effect of a unilateral declaration has, somewhat surprisingly, been cited in support of the view that it can never amount to severance: see the scrupulously ‘historical’ judgment of Rath J in Abela v Public Trustee [ 19831 1 NSWLR 308 at 315.

20 See above, n 15.

21 (1861) 1 J & H 546 at 560.70 ER 862 at 868.

22 Page Wood himself muddied the waters when he held the 1835 deed ‘to imply an agreement … that their interests should be treated as held in severalty’.

23 Amildexample of what MacCormick (opcit, above, n 7, at p 181-182)characterises as ‘judicial incompetence’, that of the judge who may ‘categorize and recategorize facts under a multiplicity of descriptions and bumble through to a decision’.

24 (1843) 5 Ir Eq Rep 501.

25 (1804) 9 Ves Jun 59 1.32 ER 732.

26 Or, in the Latin tag given in Coke's Commentary upon Littleton, jus accrescendi inter mercatores pro benejicio commercii locum non habet (Co Litt 182a). Coke states that the ‘wares, merchandizes, debts or duties, that they have as joynt merchants or parteners, shall not survive, but shall go to the executors of him that deceaseth; and this is per legem mercatoriam’. It should be noted that Coke is here glossing a contrary proposition, that a debt owed to many would be payable in fill to the survivor.

27 The phrase is used in the final paragraph of Lord Eldon's judgment: (1 804) 9 Ves Jun 591 at 604.32 ER 732 at 737.

28 (1802) 7 Ves Jun 535.32 ER 215.

29 Not that anyone was particularly sure what it meant: Grant admitted that he was baffled (7 Ves Jun 535 at 539,32 ER 215 at 217), and Lord Eldon later referred to the ‘quantity of unintelligible words in this Will’ (1804) 9 Ves Jun 591 at 600,32 ER 732 at 735.

30 Hanwnd v Jethro (161 1) 2 Brown1 & Golds 97 at 99. 123 ER 836 at 837.

31 Lyster v Dolland (1792) 1 Ves Jun 431 at 434,30 ER 422 at 423.

32 See especially the following part of Eldon's judgment (9 Ves Jun 591 at 599.32 ER 732 at 735): ‘… if the testator has imperatively said, this property shall, till a definite and distant period after his death, be cloathed with the nature and quality of joint-tenancy … the court must hold, that any acts done, or attempted by … [his sons], will not be sufficient to take away the character impressed upon the property by the Will.’

33 (1829) 3 Y & J 384, 148 ER 1228

34 (1860) 1 J & H 287,70 ER 756.30 LJNS (Ch) 213.

35 The facts of Jackson v Jackson were so unusual, and Eldon's judgment so opaque in places, as to permit of a wide variety of interpretations. The prize for most strained construction must go to Sir James Wigram VC, who considered that the brothers’ actions ‘were simply consistent with their rights as joint tenants’, but that the court ‘appears to have admitted evidence of a contract to deal with [the property] as in trade’, Dale v Hamilton (1 846) 5 Hare 369 at 384,67 ER 955 at 961.

36 (1843) 5 Ir Eq Rep 501.

37 The preservation of a woman's rights over property on marriage was a common object of mamage settlements: see AL Erickson Women and Property in Early Modem England (1993), pp 103-1 13, 122-124. Such a scenario had occurred in one of the earliest authorities on severance - a favourite with modem judges who incline to a restrictive approach - Parrriche v Powler (1740) 2 Atk 54, 76 ER 430 (for a fuller and corrected version, amended from the Register's Book and Lord Hardwicke's Note-book, see West t Hard, 25 ER 788, sub nom Parreriche v Powler). Lord Hardwicke there states that only an agreement or an actual alienation can sever a joint tenancy, though his reference to the ‘real intention’ of a marriage settlement (in which real property was assigned to trustees, but personal property - the subject of the litigation - was not) foreshadows a more liberal approach.

38 (1 843) 5 Ir Eq Rep 501 at 507

39 See Cowper LC in York v Stone (1709) 1 Salk 158,91 ER 146: ‘a joint-tenancy is an odious thing in equity’. More than a century and a half later, Page Wood's judgment in Williams v Hensman opens with an expression of regret that ‘the Legislature has not thought fit to interpose by introducing the rule, that express words shall be required to create a joint tenancy, in place of the contrary rule which is established‘.

40 (1774) 4 Bro PC 580,2 ER 395

41 (1774) 4 Bro PC 580 at 586.2 ER 395 at 399.

42 (1834) 2 My & K 304.39 ER 959.

43 Counsel for the defendant had argued that because of the peculiar (indeed, suspicious) circumstances of the alleged severance it would be inappropriate for a Court of Equity to intervene to aid the executors of the deceased co-owner. Brougham dismissed this in general terms: ‘Nothing could be more perilous in the administration of justice than to countenance such unsupported statements or surmises, and give weight to them in regulating the course of judicial decisions’ (1834) 2 My & K 304 at 309, 39 ER 959 at 961.

44 (1843) 5 Ir Eq Rep 501 at 507.

45 See for example Page Wood's judgments in Robinson v Preston (1858) 4 K & J 505, 70 ER 21 1, and Harrison v Barton (above, n 4). In the latter case Page Wood could describe himself as ‘entitled to look at all those surrounding circumstances by which any acts do indicate an intention’ (30 LJNS (Ch) 213 at 217).

46 See for example Caldwell v Fellowes (1870) LR 9 Eq 410 and In re Hewett, Hewett v Hallett [ 18941 1 Ch 362 (covenants, never performed, to settle after-acquired property), and Burnaby v Equitable Reversionary Interest Society (1885) 28 Ch D 416 (deed of settlement executed by infant). The temptation to view these and similar cases as policyled judgments reinforcing the patriarchal nature of the maniage settlement should be resisted. Settlements which effected severance could cut both ways: a husband was as likely to gain (Burnaby v Equitable Reversionary Interest Society) as to lose (Wilson v Bell, Baillie v Treharne (1881) 17 Ch D 388) from the severing effect of his wife's marriage settlement.

47 [1891] 3 Ch 59.

48 The deceased had requested that solicitors be instructed on March 20th. On 28 March he had attended court for what must have been expected to be a straightforward order for partition of the fund, but through pressure of business his action was adjourned until 22 April. On 2 April he died.

49 Stirling J clearly thought he was on fmer ground five years later in Palmer v Rich [ 18971 1 Ch 134, in which he summarily dismissed a claim of severance by ‘course of dealing’ (loc cit at p 143) without any analysis of what the phrase might mean.

50 Above. n 37.

51 Above, n 44 and associated text.

52 [1891]3Ch59atp 64.

53 In so doing he made no reference to that part of Page Wood's judgment in Williams v Hensman which dealt with the 1828 letter to the administrator, which Page Wood had allowed to sever the interests of the adult from the under-age Hensmans. Nor was there any mention, either in argument orjudgment, of the marriage settlement cases, especially Burnaby v Equitable Reversionary Interest Society (above, n 46), which indicated that in some circumstances a joint tenancy could be severed by the act of an infant.

54 [1975] Ch 222.

55 See K Gray Elements of Land Law (2nd edn) p 462, n 14.

56 In Hawkesley v May and others [ 19561 1 QB 304 and In re Draper's Conveyance, Nihan v Porter and another [1969] 1 Ch 486 respectively. Havers J had reached his conclusion (which was not necessary for his decision) on a purely ‘textual’ analysis of Page Wood's first method: it ‘obviously includes a declaration of intention to sever’. Walton J termed this statement ‘wholly unwarranted’ and referred to it having been ‘blandly repeated’ by Plowman J.

57 [1975] 1 Ch 429

58 Ibid at 439C

59 This analysis is most obvious and explicit in the judgment of Sir John Pennycuick (ibid at 447F-G). Lord Denning does not tie his comments explicitly to s 36(2), but states (440D): ‘The application was a clear declaration of his intention to sever. It was made clear to all concerned. There was enough to effect a severance.’

60 (1990) 169 CLR 540.

61 Ibid at p 548.

62 See also the statement of Deane J (ibid at 584) that Lord Denning's view of the ‘course of dealing’ was ‘significantly influenced by the provisions of s 36(2)’.

63 Ibid at 587.

64 (1990) 60 P & CR 456.

65 Such an analysis was clearly not applied in the recent case of Hunter v Babbage (21 January 1994), in which a draft agreement which was never finalised was held to have severed a joint tenancy, though the brief summary of the case available ([1994] EGCS 8), does not indicate whether the judge considered Gore and Snell v Carpenter.

65a (1990) 60 P & CR 456 at 460.

66 [1992] 2 FLR 126.

67 [1983] 3 All ER 242.

68 Ibid at 246a. This is in contrast to an application for sale under s.17 of the Mamed Women's Property Act 1882, the documents relating to which were held to have effected severance in In re Draper's Conveyance [ 19691 1 Ch 486; the Court of Appeal approved this decision in Harris v Goddard. Whether such a distinction can be justified is open to question: Mrs Harris, and indeed Mrs Porter in In re Draper's Conveyance, might have been surprised to find that their solicitors’ choice of words was conclusive evidence of their intentions, particularly in circumstances where the solicitors had, one may assume, drawn the words at issue from a standard collection of precedents.

69 See for example the scenario of Burgess v Rawnsley, which in Lord Denning's account ([ 19751 1 Ch 429 at 435F onwards) treads the narrow line between pathos and bathos, or the more disturbing events in Gore and Snell v Carpenter (1990) 60 P & CR 456.

70 It is relatively rare for cases where one half of a happy couple has died to come to court, but in such cases questions of intention and proof can be more straightforward: see Barton v Morris [ 19851 1 WLR 1257.

71 See for example Abbey National Building Society v Cann [ 19911 1 AC 56 and Equity & Law Home Loans v Prestidge [1992] 1 WLR 137.

72 In this context, as in the severance cases, it appears that a period of ‘liberal’ judgments has been followed by a more restrictive and formalistic approach; see LZoydr Bank v Rosset [1991] 1 AC 107, and the words of Dillon LJ in Springerre v Defoe (1992) 65 P & CR 1 at p 6: ‘The court does not as yet sit, as under a palm tree, to exercise a general discretion to do what the man in the street, on a general overview of the case, might regard as fair’.