Hongkong Bank Trustee Ltd. and Others v. Lee Yee Hung and Others

CACV000080/1991

Civil Appeal No 80 of 1991

Headnote

Construction of will. Duty of court to endeavour to reconcile partially conflicting provisions.

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Coram: Hon. Fuad, V-P, Penlington and Nazareth, JJ.A.

Dates of hearing: 24th and 25th September 1992

Date of handing down of judgment: 22nd October 1992

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J U D G M E N T

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Nazareth, JA:

1. This is the judgment of the Court.

2. This is an appeal by the 11th, 12th, 13th and 14th defendants against the construction by Liu J of clause 7(b) of the will of the testator, Raymond Pierre Mardulyn, who died on 5th February 1985.

3. The will made provision for certain outright bequests with the remainder to trustees to call in and convert the same into money and to re-invest upon the trusts in clause 7(b) and (c), which were in the following terms:

"7.      MY TRUSTEES shall hold the net proceeds of the said sale and conversion and my ready money upon the following trusts:

(a)     UPON TRUST to invest the residue in their names in any investments hereby authorized and to stand possessed of such investments and all parts of my estate for the time being unsold (hereinafter and hereinbefore called 'my Residuary Estate').

(b)     UPON TRUST to pay the income of my Residuary Estate to the following persons in the proportions and for the periods hereinafter mentioned that is to say:

(i)    As to one equal tenth share thereof to the said LEEYEE HUNG during her lifetime.

(ii)    As to one equal tenth share thereof to the said LEE SIU HUNG during her lifetime.

(iii)     As to one equal tenth share thereof to the said CHANG SHEUNG YUEN during her lifetime.

(iv)     As to one equal tenth share thereof to Helena M. de Figueiredo, of 13, Orange Grove, Kensington Park, Adelaide, South Australia 5068, during her life time.

(v)     As to one equal tenth share thereof to Mrs. Beryl Ng, born Wong, of Vancouver and Hongkong, during her lifetime.

(vi)     As to one equal tenth share thereof to Mabel Bronwyn MARDULYN, of Flat 17 Cedar Grange, 36 Village Road, Bush Hill Park, Enfield Middlesex EN1 2EN, England, during her lifetime.

(vii)     As to one equal tenth share thereof to the said Marie Anne Fok-Lok during her lifetime.

(viii)     As to one equal tenth share thereof to Miss Marthe van Beirendonck_l of 44 Koninging Astridlaan, 2800 Mechelen, Belgium, during her lifetime.

(ix)     As to one equal tenth share thereof to the said Mrs. M.C. Kwok, nee Christina Mak, during her lifetime.

(x)     As to the remaining one equal tenth share, thereof during the period which shall end with the death of the last survivor of the persons respectively named in sub-clauses (i), (ii), (iii), (iv), (v), (vi), (vii), (viii), (ix) of this Clause 7(b) to my said nephew PIERRE MARDULYN and from and after his death or alternatively if he shall predecease me (whether before or after the date of this my Will) until the death of such last survivor as aforesaid for the advancement maintenance education or otherwise howsoever for the benefit of his issue if more than one in equal shares per stirpes.

PROVIDED that as and when the persons respectively named in sub-clauses (i) , (ii) (iii) , (iv) ,(v) , (vi), (vii), (viii), (ix) and (x) of this Clause 7(b) shall die or in the event of any one or more of such persons predeceasing me (whether before or after the date of this my Will) I direct that her or their share or respective shares of income as aforesaid shall be paid by my Trustees as an accretion to the respective shares of the other such persons in equal shares.

(c)     As from the death of the aforesaid last survivor of the persons respectively named in sub-clauses (i), (ii), (iii), (iv), (v),      (vi), (vii), (viii), (ix) and (x) of Clause 7(b) hereof UPON TRUST as to both Capital and Income thereof for my said nephew PIERRE MARDULYN absolutely or if he shall predecease me (whether before or after the date of this my Will), then UPON TRUST for such of his issue as shall survive me and attain the age of twenty one years and if more than one in equal shares absolutely per stirpes."

4. The testator died without revoking the will and leaving no grandparents, parents, widow, children or other next of kin, except his brother, Dr Henri Mardulyn, the 27th defendant, who would be entitled upon an intestacy. Dr Henri Mardulyn had one son, Pierre Mardulyn ("the nephew") and 10th defendant, who survived the testator and was aged 49 years at the time of the hearing below. The nephew has three children: (a) Henri Antoine, the 11th defendant who was born on ²1st June 1966 and is now some 26 years of age; (b) Anne-Francoise, the 12th defendant who was born on 28th March 1970 and is now 23 years of age; and (c) Jean Michel, the 13th defendant who was born on 13th January 1971 and is now 21 years of age.

5. Probate of the Will was granted on 3rd April 1986 to the 1st and 2nd plaintiffs as Executors and Trustees. On the 4th June 1990 they issued an originating summons seeking the determination of the Court on several questions of the true construction of the Will. This appeal is only concerned with the answers to the following questions relating to clause 7(b):

"1(1)      Whether, on the true construction of the Will of Raymond Pierre Mardulyn deceased and in the events that have happened, on the death of any person (in this question referred to as "the deceased life tenant") referred to in paragraphs (i) to (ix) of Clause 7(b) of the Will of Raymond Pierre Mardulyn deceased during the lifetime of one or more of the other persons named in paragraphs (i) to (ix) of Clause 7(b) of the said Will and during the lifetime of Pierre Mardulyn, the nephew of the said deceased, the share in the income of the estate of the said deceased to which the deceased life tenant was entitled during the lifetime of the deceased life tenant passes

(a)      to the other persons referred to in paragraphs (i) to (ix) of the said Clause 7(b) who are then alive and Pierre Mardulyn in equal shares or

(b)      to the other persons referred to in paragraphs (i) to (ix) of the said Clause 7(b) who are then alive and in equal shares or

(c)      to the other persons referred to in paragraphs (i) to (ix) of the said Clause 7(b) who are then alive and to the said nephew Pierre Mardulyn and the issue of the said nephew who are then alive, and if so, in what shares           or

(d)      in some other manner, and if SO, in what manner?

1(2)     Whether, on the true construction of the said Will and in the events that have happened, on the death of any person (in this question referred to as "the deceased life tenant") referred to in paragraphs (i) to (ix) of the said Clause 7(b) during the lifetime of one or more of the others of such persons but after the death of the said nephew Pierre Mardulyn the share in the income of the estate of the said deceased to which the deceased life tenant was entitled during the lifetime of the deceased life tenant passes

(a)     to the other persons referred to in paragraphs (i) to (ix) of the said Clause 7(b) who are then or

(b)     to the other persons referred to in paragraphs (i) to (ix) of the said Clause 7(b) who are then alive and to the estate of Pierre Mardulyn in equal shares or

(c)     to the other persons referred to in 'paragraphs (i) to (ix) of the said Clause 7(b) who are then alive and to the issue of Pierre Mardulyn and if so, in what shares or

(d)     in some other manner, and if so, in what manner?

1(4)     Whether, on the true construction of the said Will, the interest of an individual member of the class of issue of Pierre Mardulyn under paragraph (x) of the said Clause 7(b) and in any share accruing under the proviso to paragraph 7(b)

(a)     ceases on the death of such individual and accrues to other members of the class of issue then living per stirpes or

(b)    continues until the death of the survivor of the persons named in paragraphs (i) to (ix) of the said Clause 7

(c)    is held in some other manner, and if so, in what manner?"

6. The summons was heard by Liu J who by order dated 6th March 1991 answered them in the following way:

"Question 1(1):

On the true construction of the Will of Raymond Pierre Mardulvn deceased and in the events that have happened, on the death of any person (in this question referred to as "the deceased life tenant") named in paragraphs (i) to (ix) of Clause 7(b) of the said will of Raymond Pierre Mardulyn deceased during the lifetime of one or more of the other persons named in paragraphs (i) to (ix) of Clause 7(b) of the said Will and during the lifetime of Pierre Mardulyn, the nephew of the said deceased, the share in the income of the estate of the said deceased to which the deceased life tenant was entitled during the lifetime of the deceased life tenant passes to the other persons named in the said paragraphs (i) to (ix) of the said Clause 7(b) who are then alive in equal shares.

Question 1(2):

On the true construction of the said Will and in the events that have happened, on the death of any person (in this question referred to as "the deceased life tenant") named in the said paragraphs (i) to (ix) of the said Clause 7 (b) during the lifetime of one or more of the others of such persons but after the death of the said nephew Pierre Mardulyn the share in the income of the estate of the said deceased to which the deceased life tenant was entitled during the lifetime of the deceased life tenant passes to the other persons named in the said paragraphs (i) to (ix) of the said Clause 7(b) who are then alive.

Question 1(4):

On the true construction of the said Will, the interest of an individual member of the class of issue of the said nephew Pierre Mardulyn under the said paragraph (x) of the said Clause 7(b) [and in any share accruing under the proviso to paragraph 7(b)] ceases on the death of such individual member and accrues to the then living issue of such individual member or in the event of such individual member leaving no issue then to the other members of the class of issue in the said paragraph (x) of the said Clause 7(b) then living in equal shatres per stirpes provided that if, after the death of the said nephew Pierre Mardulyn, all his issue shall have predeceased the last survivor of the persons named in the said paragraphs (i) to (ix) of the said Clause 7(b), that interest shall become income undisposed of by said Will and lapse into an intestacy."

7. The appellants seek the setting aside of that order and in lieu the following answers to questions 1(1), 1(2) and l(4):

"Question 1(1):

That on the true construction of the Will of Raymond Pierre Mardulyn ("the Testator") and in the events that have happened, on the death of any person (in that question referred to as "the deceased life tenant") named in paragraphs (i) to (ix) of Clause 7(b) of the said Will during the lifetime of one or more of the other persons named in paragraphs (i) to (ix) of Clause 7(b) of the Will and during the lifetime of the Testator's nephew Pierre Mardulyn the share in the income of the estate of the Testator to which the deceased life tenant was entitled during her lifetime passes to the other persons named in the said paragraphs (i) to (ix) of the said Clause 7(b) who are then alive and Pierre Mardulyn in equal shares.

Question 1(2):

That on the true construction of the said Will and in the events that have happened, on the death of any person (in this question referred to as "the deceased life tenant") named in the said paragraphs (i) to (ix) of the said Clause 7(b) during the lifetime of one or more of the others of such persons but after the death of Pierre Mardulyn the share in the income of the estate of the Testator to which the deceased life tenant was entitled during her lifetime passes to the other persons named in the said paragraphs (i) to (ix) of the said Clause 7(b) who are then alive and the issue of Pierre Mardulynn in equal shares, the issue of Pierre Mardulyn from time to time living taking as a class equally between them per stirpes only one share.

Question 1(4):

That on the true construction of the said-Will, the interest of an individual member of the class of issue of the said nephew Pierre Mardulyn under the said paragraph (x) of the said Clause 7(b) and in any share accruing under the proviso to paragraph 7(b) ceases on the death of such individual member and accrues to the then living issue of such individual member or in the event of such individual member leaving no issue then to the other members of the class of issue in the said paragraph (x) of the said Clause 7(b) then living in equal shares per stirpes provided that if, after the death of Pierre Mardulyn, all his issue shall have predeceased the last survivor of the persons named in the said paragraphs (i) to (ix) of the said Clause 7(b), the share of income given to. Pierre Mardulyn and his issue under paragraph (x) of the said Clause 7(b) shall be paid to the persons named in the said paragraphs (i) to (ix) of the said Clause 7(b) who are then alive in equal shares."

8. In practical terms what is involved in the questions, the judge's answers and the modification to them contended for by the appellants is whether all the persons specified in sub-paragraphs (i) to (x) form a single group so that also the nephew's share under sub-paragraph (x) and not just that of each surviving person specified in sub-paragraphs (i) to (ix) (i.e. each "life tenant") is entitled upon the death of any life tenant, to a proportion of that life tenant's share. The judge held that the nephew does not form part of this group of nine life tenants, and that in consequence his share is in neither his hands nor those of his issue entitled to accretion from the shares of deceased life tenants; and that likewise the shares of the life tenants are not entitled to accretion from the share of the nephew or his issue, which would lapse into intestacy if  they predeceased the last surviving life tenant.

9. Miss Audrey Eu appeared for the four appellants at the hearing of this appeal, but not below. Mr Ronny Tong, QC and Mr Simon Leung appeared for the three plaintiffs. C.Y. Lee appeared for the 1st, 2nd, 4th, 6th and 7th defendants, but only to say that they would not make further appearance as they took a neutral position and were prepared to be bound by the decision of this Court. We were satisfied that the remaining defendants had been served with the notice of this appeal and notice of the hearing, and where they had not notified their intention not to appear, as some have done, must be deemed to have so elected.

10. It is convenient to record at this point that Miss Eu haying concluded her submissions, objected to Mr Tong making submissions on matters other than the administration of the trust. Both made submissions as to whether trustees had a right to be heard. It seems to us on the authorities cited, that Miss Eu was right in her contention that Mr Tong, as counsel representing the trustees, ought not to be heard on the construction of the Will, but only upon administration of the trust. (Mellor v Daintree Vol. XXXIII Ch D 198; In re Whitley [1962] 2 WLR 922; Ford & Lee, Principles of the Law of Trusts para. 928(5) p. 403; Re Stuart, Johnson v Williams [1940] 4 All ER 80; In re Londonderry's v Walsh[1965] 1 Ch 918; Carroll v Graham [1905] 1 CH 478; Williams Mortimer and Sunnucks: Executors Administrators and Probate, 16th Ed. p. 749; Elliot v Joicey [1935] AC 425) However, since in the event Mr Tong did not express a wish to be heard, it did not become necessary to make any ruling. It should be noted that Mr Tong was prepared to assist the Court as amicus if invited, but we did not find it necessary to do that.

11. The judge in his detailed and careful judgment, which is only challenged in respect of three of his seven answers, dealt with the matter by first citing the canons of construction he considered applicable. No point is taken on them by Miss Eu for the appellants, although she relies also upon other principles and upon authorities illustrating the manner in which they have been applied. We do not think any useful purpose would be served by attempting to set them all out, but will refer to them where necessary.

12. We would, however, mention that the judge began rightly by stating that the intention of the testator is to be uncovered from his testamentary instrument and that therefore it is not so much the testator's actual mental intention but his expressed intention that is to be ascertained, and from his whole Will (see Williams on wills, 6th Ed., Vol. 1 pp 433, 438, 482).

13. No less than four alternative modes of construction were submitted for the judge's consideration. In this appeal we are concerned with only two; that contended for by the appellants, and that which he judge found to be the rue and proper construction. In substance the appellants' contention was that because of the gift to the nephew in sub-paragraph plain terms of the gift (x) it is not cut down by the proviso to paragraph 7(b) which has to be construed subject to the gift and in the context of a genuine attempt to reconcile the two provisions, i.e. the proviso and sub-paragraph (x). The nephew's share, it was submitted, accordingly attracts accretion from the shares of deceased life tenants, notwithstanding that the nephew's death will not result in any reciprocal accretion to surviving life tenants because of the clear words of sub-paragraph (x) passing his share to his issue. Finally it was submitted that if all his issue predecease the last survivor of the life tenants their share would pass to the surviving life tenants, thus giving all possible effect to the proviso subject to sub-paragraph (x). The judge termed this the group approach or theory, acknowledging that it sought to reconcile the proviso with sub-paragraph (x).

14. Having outlined those contentions the judge observed that "cross fertilization between these two categories would not seem to be in unison with the Testator's general scheme of disposition". Indicating his further disapproval of those contentions, he added:

"In sub-paragraph (x) of Clause 7(b), the life interest of the nephew would be overtaken by his children and more remote descenants per stirpes ... What is claimed to do the least violence to the language would bring about a drastic change. Such suggested lateral cross fertilization of interests would, in addition to it being a novel concept, give rise to a completely new horizontal transmission after a series of vertical transmissions of interest internally within the branch of the nephew's family. There is no clear indication in the Will to warrant the setting up of such an intricate set of regulatory rules for an overall lateral cross fertilisation. No testator would have had his intention for such an alleged complex transmission of interests on different planes expressed in so disarranged terms. No conveyancer would have purported to implement a desire for such mutual horizontal transmission between the 'group' and life tenants by so imperspicuous provisions. The group approach together with its splinter theory ... is an ingenious device to remove incongruities by, so it would seem, conjectural concepts wholly out of harmony with the text and general scheme of the said Will".

15. Miss Eu complains that this is an over complicated perception of what: is a relatively simple scheme. We find ourselves unable to disagree.

16. The judge then went on to set out what he saw as the general scheme of disposition which, it is apparent from his judgment, formed a crucial part of the process by which he arrived at his construction. The main exposition of that general scheme appears in the following passage at page 9 of the judgment:

"The general scheme reflected by the provisions in the Will places the life tenants in a secluded category on its own. The nine ladies are servants, friends, acquaintances and the Testator's divorced wife, Mabel Bronwyn Mardulyn (nee Churn), the 6th defendant. Each is to enjoy her share of the interim income of the residuary estate for life. The other category, also standing out on its own, comprises his blood relations : the nephew or his line of descendants, as the case may be, who are the selected ultimate beneficiaries for the corpus. Moreover, interests of the Testator's blood relations are different in nature, extent and transmission. The nephew's own interest will descend to further generations i.e. his issue per stirpes. That is what Mr Wong called 'the vertical' transmission. The interest to the issue 'is dedicated for the specific purpose of their maintenance etc. Both the nephew and his issue would take only a life interest in a bequest pur autre vie. There is, therefore, every reason for these two categories to be kept apart."

17. We are unable to agree that such a conclusion can be drawn. That the testator gave his faithful servants and the like, equal shares in the income of the residuary estate only for life, but his nephew a similar equal share that would pass to his issue, does not seem to us in the circumstances involved, to indicate a general scheme of disposition to which "cross fertilisation" of the nephew's share under the proviso is irreconcilable. Why, it may be asked, should the testator not have wanted his blood relatives to benefit from increases from the shares of deceased life tenants in the same way as surviving life tenants? Why, moreover, should the testator not have wished the nephew, and even more the likely to be increasing number of issue, to benefit from such increases during what could be a very long period indeed before all the female life tenants died, two of them being of the approximate age of the nephew?

18. We therefore do not accept that the general scheme, if such there was, involved separating the beneficiaries into two categories in the context of clause 7(b) and the proviso which expressly deal with them together. The specific bequests to some of the life tenants and the nephew in earlier clauses of the Will, and of the corpus by paragraph (c) do not, in our view, undermine our conclusion.

19. Although not necessary in view of that conclusion, we think we should refer to the legal basis upon which the judge proceeded. Having stated the basic canon of construction that the intention of the testator was to be gathered from what was expressed in the Will, he went on:

"However, the court must not lose sight of the general scheme of disposition, nor the general tenor of the instrument. Regard should also be paid to what is usually done in a normal scheme. See Jarman on Wills, 8th edn., Vo1. 1, p. 586; In re Macandrew's Will Trust, [1964,] 1 Ch. 704 at 719 per Ungoed-Thomas J."

Not having been addressed upon those propositions, we propose to say no more than that we do not find in those authorities support for their use in the manner made in the judgment. And as to a "normal scheme", in Macandrew what was seen to be a relatively normal scheme was preferred to a literal construction which was "completely senseless" in the context of the will, and moreover regarded as an "erratic folly" or "incongruous" when literally construed. In our view, it does not provide the support for the general scheme as a "normal scheme" relied upon in the following passage in the judgment:

"Another legitimate expectation from a normal scheme of disposition is the understandable desire of every testator to benefit his named beneficiary alive. Unless the intention of a testator is otherwise clearly expressed, his bounty is expected to be personally appreciated and enjoyed by his chosen beneficiaries. The greatest comfort to a deceased benefactor is, perhaps, his real or imagined joy of being remembered by the living with affection and in gratitude. There is nothing to suggest that the scheme of disposition in this case is otherwise than normal. ... Keeping this general and normal scheme in mind ... "

20. The judgment continues:

"The group theory would encounter further difficulty in its attempt to reconcile the words 'in the event of any one or more of such persons predeceasing me' in the context of the Proviso to Clause 7(b). The words 'any one ... of such persons' would have to be spaciously read as 'any one ... of such persons (or group of persons)' to accommodate the group's integral interest."

21. We pause here to observe only that such a construction of those words, so far as may be necessary, would in our view be amply warranted by the principles that a will must be so construed that effect is given to every word, and that the court has no right to disregard a word provided some meaning can be given to it which is not contrary to some intention plainly expressed in other parts of the will (Williams on Wills 6th Ed., Vol. 1 p. 445). And furthermore that if "a will contains two dispositions of the same property which if literally construed, are inconsistent with one another ... the court always endeavours to reconcile the dispositions, and will, if it be possible so construe them that neither has to be rejected altogether (per Lord Romer in Fvfe v Irwin [1939] 2 All ER 271, 281B).

Returning to the judgment, it continues:

"On the face of the Will, it is true that Clause 7(b) gives the interim income of the residuary estate to persons 'in the proportions and. for the period' specified. I have emphasized the two distinct categories for the life tenants and the ultimate beneficiaries, primarily identifiable by their relationship with the Testator. Further, their respective interests have been, I hope, demonstrated to be different in nature, extent and transmission. Under the Proviso, the benefit of the surviving members among the life tenants would continue to grow by way of transmitted accruals, but there is no sound reason why the 1/10th interim income to the nephew's branch should at all times be commensurate with the steadily growing share of each of the living life tenants. However, much was sought to be made of what was submitted to be an equal proportion fixed by the Testator. In my view, there is no clear intention of the Testator," as expressed in the Proviso to Clause 7(b) or elsewhere in his Will, to maintain the same proportionate sharing between the living life-tenants and the nephew's branch so as to allow an overall operation of cross fertilization. In any case, equal proportions as an alleged pattern can hardly augment the plausibility of the group theory as the group would continue until the death of the last descendant of the nephew. By a sheer younger and likely larger membership, the class composed of all the nephew's descendants would, on preponderant probabilities, benefit more often as surviving recipients than the life-tenants in cross fertilization. That, by itself, is a gross inequality in opportunity sufficient to dislodge any claimed pattern of equal proportions."

As to there being no sound reason why the nephew's one-tenth share should at all times continue to grow and match the shares of the living life tenants, no sound reason is needed, for that seems to us to be the plain meaning of the proviso, which needs no further justification such as some inferred implication of equality of proportions. Besides there is equally no reason or perhaps less reason why the nephew's share should not increase in the same way; as mentioned earlier the testator may well have wished the nephew's share to so increase, particularly as he could not have been unaware that some of the life tenants , all of whom were female and at least two of a not dissimilar age to that of the nephew, might well out-live the nephew.

22. The judge then turned his attention to paragraph (c) of clause 7. It can readily be seen that it the nephew is only to receive the corpus after his death, which not only could not have been the intention, but was obvious nonsense. It was not in dispute that in paragraph (c) the words "and (x)" had to be deleted and the judge had no difficult in arriving at that conclusion. He then returned to clause 7(b), observing that sub-paragraphs (i) to (ix) are free from obscurity, and that sub-paragraph (x) may also be said to be intelligible until the proviso.

23. He proceeded then to consider the words "her or their share or respective shares of income" in the proviso, expressing the view that they "are not really susceptible of the meaning of a group so as to accommodate the cross transmission" contended for by the appellants. He took the view that "their ... respective shares" are words apt for use in providing for cross transmission when two or more life tenants die, and that "naturally, the phrase 'her or their share or respective shares' may consistently be read as 'her Share' for one deceased life-tenant and 'their respective shares' for two or more deceased life-tenants accumulatively".

24. However, that leaves the words "their shares" to be explained, and the absence of an explanation is compounded by the judge's comment that "nothing calls for an isolation" of the word "their" or the word "share" in the singular for a special meaning so as to justify the introduction of the group theory. As submitted on behalf of the appellants, it cannot be gainsaid that the words "their share" do appear, that they can be construed in the singular, and that in that sense they do support the group theory. To ignore those words would be the same as deleting or expunging them, contrary to the canons of construction the judge himself adopted in the following words at page 6 of his judgment:

"the criteria before deleting words or expunging them from a will are stringent. Abbott v Middleton would allow nothing less than 'an absolute necessity' as reflected by the testator's declared intention to justify interfering with the text of the instrument. Other equally robust terms have been used, such as 'a compelling conviction', in Re Follett (Deceased), Bucklevspan Ltd v Dovell [1955] 2 AER 22 at p. 24E per Evershed MR".

Clearly, there is nothing like an absolute necessity for the words "their share" to be-ignored or expunged.

25. Approached in a different way, as already stated, a will must be so construed that effect is given to every word. The court has no right to disregard a word provided some meaning can be given to it and that meaning is not contrary to some intention plainly expressed in other parts of the will.

26. Miss Eu submits that "their share" is intended to refer to the share of the nephew's children, in the context of cross transmission to the life tenants who may survive them, and that "his" is not provided for as the testator would have been well aware that the nephew had three children, and that it was unlikely in the extreme that all of them would predecease the nephew. She also pointed to the emphasis upon accretion to the respective shares and not to the persons who held them. The judge however viewed the non-inclusion of "his" though inconclusive, as equally supportive of the contrary view that no lateral cross transmission was anticipated.

27. The judge referred to the vertical transmission provided for in sub-paragraph (x) (i.e. from the nephew to his issue) and the cross transmission of the same share in the proviso, concluding that the latter, strictly construed, could not be reconcilably applied to the former. Moreover he regarded the proviso, insofar as it seeks to superimpose a limitation upon the clear gift made in sub-paragraph (x), as repugnant to it and therefore void  (William v Hathaway 6 Ch D 544, 549); adding that if "not altogether void it certainly may be ignored as a subsequent ambiguous direction (see Jarman on Wills, 8th Ed. Vol. 1 pp. 577 and 585; Smidmore pp. 356, 357)". Given the necessity to reconcile sub-paragraph (x) with the proviso, we do not think that it would be right to construe the latter strictly; if not so construed it would not be repugnant, nor need it be ignored. It may be that the judge was  unduly influenced by what he perceived as the general scheme of disposition in the Will.

28. The judge then proceeded to criticise in five respects the appellants' efforts to reconcile the proviso with sub-paragraph (x), in that these involved first, attaching a meaning wider than its ordinary import to the word "named" in the proviso. The appellants' submission was that "named" was equivalent to "referred to" upon the authority of Seale-Hayne v Jodrell [1891] AC 304, 306 per Lord Herchell. While we see no reason to reject that authority, we have no need to rely upon it, being satisfied that the appellants' group theory construction can succeed without reliance upon such enlarged meaning of "named". Second, in the appellants introducing a conglomerate concept of the words "and (x)" on the strength of, inter alia, the words "their share" in the proviso. As indicated, so far as we can see that seems to be the most appropriate meaning of "their share" construed in the singular. Third, in ignoring the countervailing effect of the absence of the word "his" in the proviso, with reference to the nephew's share. But on both the judge's construction, and that contended for by the appellants, it is most likely that any share passing in that context as an accretion to the shares of the life tenants, would be from, not the nephew directly, but from his issue, with reference to whom the appropriate words are "their share" in the singular. Accordingly there would not be any countervailing effect. Fourth, in reading the words in the alternative contingency in the proviso "or in the event of any one or more of such persons predeceasing me" to mean "or in the event of any one or more of such persons (or group of persons) predeceasing me". In our view, it is not necessary to read the former words in that way. Fifth, in avoiding other oddities arising from a permutation of theories. We are not sure what oddities the judge was referring to, but it is apparent that some oddities or inconsistencies arise on any construction of clause 7(b) and the proviso, including that preferred by him.

29. However the foregoing may be, the judge concluded therefore that something had gone wrong in the proviso and accordingly that he "should scan (these Clauses) carefully in order to see whether any surgical operation can legitimately be performed on the language used which will give a rational operation to (them)", citing In re Doland's Will Trusts [1970] 1 Ch 267 at p. 271E. He added if the proviso was neither void nor to be ignored for the purpose of sub-paragraph (x), as a last resort, "and (x)" might be surgically removed so as to carry into effect the clear intention of the testator as expressed in clause 7(b) in line with his general scheme of disposition. For the reasons already indicated, we consider it plain that a surgical removal of "and (x)" is not required.

30. He then pointed out that strictly construed clause 7(b)(x) leads to some possibilities of a partial intestacy, acknowledging that the group theory which he rejected would avoid such intestacy. Nevertheless, he concluded the possibilities of a partial intestacy are a common phenomenon that must simply be accepted with grace.

31. Upon those reasons the judge came to the conclusion that the proviso to clause 7(b) should be read by ignoring or deleting the words "and (x)" so that there would be no cross fertilization or lateral transmission between the shares under sub-paragraphs (i) to (ix) on the one hand and the share under sub-paragraph (x) on the other. As we have indicated a fundamental, if not the primary, reason upon which he reached his conclusion and indeed which, in our view, coloured his whole approach to the matter, was what he perceived to be the general scheme of disposition, which we do not accept.

32. To proceed, we have mentioned the judge's reference to the possibilities of partial partial intestacy and his observation that these are a common phenomenon and must simply be accepted with grace. He perceived those possibilities as arising for instance:

"If the nephew, having survived the Testator, should die last among the ten mentioned by name in the Proviso, that would leave as being undisposed of the whole of the income for the period between the death of the last surviving life tenant and the death of the nephew ... Any undisposed of income could not be included in the word 'income' in the phrase 'both Capital and Income thereof' in Clause 7(c). 'Income' in that phrase cannot mean whatever income otherwise it would have spared no interim income for the 10 bequests in the preceding Clause 7(b). Clause 7(c) should not be read as if it contained 'accumulated' or 'undisposed of with reference to income as there is hardly any justification for inserting these words ... "

Without wishing to be taken as accepting those views we would point out that if they were right, the well-established canon of construction embodying a bias against intestacy (Williams 6th Ed., Vol. 1 p. 450; Jarman 8th Ed., Vol. 3, p. 2070; Halsburys Laws, 4th Ed., Vol. 50 para. 440; Ng Chi Fung v Hui Po Pui Fun [1987] HKLR 462; 485 B-H) would in the circumstances, in our view, demand the rejection of such construction.

33. Indeed Miss Eu argued strongly that since the courts will generally strive to avoid a construction which will create a total or partial intestacy, the group theory for which the appellants contended would succeed if the application of other canons of construction failed to produce any clear construction. We do not feel able to rely upon any such reason as the intestacy to which she pointed i.e. the nephew's share falling into intestacy on non-survival of his issue if it did not go to the surviving life tenants, in our view, might simply not arise.. If that share fell out of the bequest in sub-paragraph (X) then it might well fall into the residual bequest in paragraph 7(c). That would neither give rise to partial intestacy nor attract the bias against intestacy "because it is not a case between testacy and intestacy, but between two gifts in the same will" (In re Price, Price v Newton [1905] 2 Ch 55, 58).

34. We are satisfied, therefore, that for all the foregoing reasons the construction contended for by the appellants is the true construction of clause 7(b) of the Will. We accordingly allow the appeal, set aside the order of the judge to the extent necessary, and substitute the three answers contended for by the appellants.

35. As to costs prima facie there is no reason why the appellants should not be indemnified from the estate. We accordingly order nisi that the appellants are to have their costs of this appeal, to be taxed upon the indemnity basis and be paid out of the estate.

Representation:

Mr Ronny Tong, QC and Simon Leung (M/s Stevenson Wong & Co) for the 11th, 12th and 13th Respondents

Mr C.Y. Lee (M/s Iu Lai & Li) for the 1st, 2nd, 4th, 6th and 7th Respondents;

Miss Audrey Eu (M/s J.S.M.) for 1st, 2nd, 3rd and 4th Appellants