2 Jarman on Wills 1532 (8th Ed.)

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XI-Condition to assume a Name or Arms

Mr. Jarman continues  (h): "An obligation is frequently imposed on a devisee or legatee to assume the testator's name; and in such case the question arises, whether the condition is satisfied by the voluntary assumption of the name, or requires that the devisee or legatee should obtain a licence or authority from the Crown, or the still more solemn sanction of the legislature, unless (as commonly happens) the instrument imposing the condition prescribes one of those modes of procedure.
"In the case of Lowndes v. Davies (i), where a testator constituted A. his lawful. heir, on condition he changed his name to G., it was held that A.'.s unauthorised assumption of the name was sufficient.

" So, in the case of Barlow v. Bateman (k), a testator gave a legacy of £1,000 to his daughter, upon condition that she married a man who bore the name and arms of Barlow; and in case she married one who should not bear the name and arms of Barlow, he gave the legacy to another. The daughter married a person whose name was Bateman, but who, three weeks before the marriage, called himself Barlow, and this was held to be a compliance with the condition. the Master of the Rolls, Sir J. Jekyll, observing, that the usage of passing Acts of Parliament for the taking upon one a surname, was but modern, and



(h) First ed., p. 848.
(i) 2, Scott 71.
(k) 3 P. W. 65.  The terms of the will are not accurately stated in the report, which Jarman follows. The condition was that the legatee should marry with a person of the surname of Barlow; it did not require him to bear the arms of Barlow. The husband admitted that he assumed the name on the occasion of his marriage in order to  entitle himself to the legacy.

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that anyone might take upon him what surname, and as many surnames as he pleased, without an Act of Parliament.  It was suggested that the husband might, after receiving the legacy, resume his old name, and the Court was requested to make an order that he should retain it, but this was refused ". The decision of the M.R. was, however, reversed in the House of Lords, probably on the ground urged in argument that the testator intended a person of his own family, and originally bearing the name of Barlow (l).

" So, in the case of Doe d. Luscombe v. Yates (m), where a condition was imposed upon devisees not bearing the name of Luscombe, that they within three years after being in possession, should procure their names to be altered to Luscombe by Act of Parliament; it was held that this requisition did not apply to an individual who, before he came into possession (n), had voluntarily and without any special authority assumed the name of Luscombe; he being, it was considered, a person bearing the name' within the meaning of the will " (o).

But where a testator expressly requires a name to be taken by Act of Parliament, or any other specified mode, or under the King's licence (p), the devisee or legatee must comply with the requirement, and no other mode falling short of the specified mode can be substituted for it (q).

In Bennett v. Bennett (r), a condition requiring the assumption of the name of M. was held to be complied with by the baptism of the successor to the estate in that name, without the adoption of the name as a surname.- And if the condition requires the devisee to assume and use " the surname of S. alone or together with his family surname," he may use the prescribed name either before or after his own surname (s). In D'Eyncourt


(1) 2 Br. P. C. 272. See Leigh v. Leigh, 15 Ves. 92, and other cases cited, post, Chap. XLIII, on gifts to persons of the testator's name, etc.
(m) 5 B. & Ald. 544. See also Hawkins v. Luscombe, 2 Sw. 375; Re Croxon, [1904] 1 Ch. 252.
(n) "He was under age at the time, and this perhaps is not an immaterial circumstance, as Lord G. J. Abbott observed that ' a name assumed by the voluntary act of a young man at his outset into life, adopted by all who know him, anti by which he is constantly called, becomes, for all purposes that occur and effectually his name, as if he had obtained an Act of Parliament to confer it upon him '." (Note by Mr. Jarman.) No such distinction, however, can be collected from the authorities. See Davidson, Conv. iii, 360, note.
(o) As to gifts to persons of a prescribed name, vide Jobson's Case, Cro. El. 576 and other cases cited, post, pp. 1643 seq.
(p) " The King's licence is nothing more than permission to take the name, and does not give it. A name, therefore, taken in that way, is by voluntary assumption ": per Lord Eldon, in Leigh v. Leigh, 15 Ves., at p. 100.
(q) Per Abbott, C.J., in Doe d. Luscombe v. Yates, 5 B. & Ald. 544.
(r) 2 Dr. & Sm. 266.
(s) Re Eversley, [1900] 1 Ch. 96.

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 v. Gregory (t), on the other hand, where the condition required a devisee named W. to take and use " the surname of G.," it was held that the assumption and use of the name G. before that of W. was not a compliance with the condition. In Re Parrott (u) , it was held that a condition requiring a legatee to assume Christian names other than his own was impossible of performance and void, and it was stated that there are only two, or at most three, ways in which a Christian name may be legally changed; by Act of Parliament, by the bishop at confirmation and by adding a name when a child is adopted, though the precise quality of such an added name is open to doubt.

Questions sometimes arise how a condition requiring a person to "use" a name must be complied with (x).

The proper mode of complying with a condition requiring a devisee or legatee to take and bear a certain coat of arms is to obtain a grant of arms from the College of Arms (y), and therefore if a condition requires that the arms should  "lawfully" assumed, the condition cannot be complied in any other way (e.g. by a mere voluntary assumption) (z). The question whether a condition simply requiring the devisee to bear a certain coat of arms (without using the word "lawfully") can be performed by a mere voluntary assumption and use of the arms, does not appear to have been decided. but the better opinion is that it cannot (a). Of course, if the condition provides that every devisee who at the time he becomes entitled to the estate does not bear a certain coat of arms, he shall assume it, then the condition does not affect a devisee who in fact bears the arms at the time he becomes entitled under the devise, although he has assumed them improperly and without authority (b).

Conversely, the fact that a person is entitled to bear certain arms does not operate as a compliance with a condition requiring him to use them (c).

In Austen v. Collins (d), it was held that a condition requiring a devisee to bear certain arms was complied with by



(t) 1 Ch. D. 441; Re Llangattoch, 33 T. L. R. 250; a composite surname including the surname is not sufficient : Re Berens, [1926] Ch. 596.
(u) [1946] Ch. 183.
(x) See Re Drax, 75 L. J. Ch. 317; Re Parrolt, [1946] Ch. 183.
(y) A royal licence or warrant to use certain arms is practically inoperative unless the arms are " exemplified " in the College of Arms; see the cases cited in the next two notes.
 (z) Re Croxon, [1904] 1 Ch. 252; Re Berens, [1926] Ch. 596.
 (a) Ib; Austen v. Collins, 54 L. T. 903, [1886] W. N. 91. And see the note in Davidson, Conv. iii, 361.
 (b) Re Croxon, supra.
 (c) Revan v. Mahon-Hagan, 31 L. R. Ir. 342.
 (d )  54 L. T. 903; a condition to assume arms of which a grant cannot be obtained is void : Re Berens, [1926] Ch. 596.


 
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obtaining a grant from the College of Arms a slightly different coat of arms, the College having refused to grant the right to use the identical arms.

Not infrequently, a will making a strict settlement of real estate contains a name and arms clause requiring every future owner of the property to assume the name and arms of the testator (e).

It has been already noticed that if land is devised subject to a name and arms clause, with a gift over on breach, this gift over is good if annexed to an estate tail, but void in the case of an estate in fee simple (f).  A devise of an estate in fee simple can, however, be made subject to a condition precedent requiring the devisee to take a name and arms, and a condition subsequent requiring every future owner to take and use a name and arms, with a gift over on breach, may be annexed to such a devise if their operation is confined to the period allowed by the rule against perpetuities (g). And the gift over, to be effectual, must be so framed that the proviso for cesser and the limitation over fit one another (h). The gift over will also be void if it is repugnant to the original gift: as where an estate is devised to a person in fee, subject to a name clause, with a gift over on breach to the person "next in remainder" (i).

Where personalty is settled subject to a name and arms clause, with a gift over by reference to the limitations of settled real estate, the gift over is effectual, notwithstanding that the real estate has been disentailed (k).

In Re Evans' Contract (l) the testator devised his estate to trustees, giving his daughter and granddaughter and her husband successive equitable life, interests, with remainder to the granddaughter's sons in tail male. There was a proviso that every person becoming entitled as tenant for life or tenant in tail in possession, and the husband of every such person, should within twelve calendar months assume the testator's name and arms. There was no gift over on non-compliance with the proviso. Neither the testator's daughter or granddaughter nor the husband of either assumed the name and arms. It was held that the granddaughter could make a good title



(e) See the well-known note in Davidson, Conv. iii, 356. For instance of a name and arms clause taking effect on a life estate, see Re Michell, [1892] 2 Ch. 87.
(f) Ante, p. 1430. Mr. C. Sweet's opinion was that the condition itself is good, if it is what is called a common law condition, ante, p. 388.
(g) Bennett v. Bennett, 2 Dr. & Sm., at p. 275; Re Cornwallis, 32 Ch, D. 388. Vaizey on Settlements, 1270.
(h) Re Catt's Trusts, 2 H. & M. 46.
(i) Musgrave v. Brooke, 26 Ch. D. 792.
(k) Re Cornwallis, 32 Ch. D. 388.
(1) [1920] 2 Ch. 469. See also Re Fry, [1945] Ch. 348.

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under the Settled Land Acts, for if there was a condition it was a common law condition of which the testator's heir alone could take advantage by entry, which he had not done, and there was not anything to show that it was the intention of the testator that the estate should go over on non-compliance with his desires.

The question within what period a condition requiring the assumption of a name, or name and arms, must be performed, where no time is limited by the will, has been already considered (m).

Sometimes a devisee is required to assume a name (or name and arms) on becoming "entitled" to the estate: in such a case "entitled" generally means "entitled in possession"  (n). A person may be "entitled to the actual possession or receipt of the rents and profits" within the meaning of a clause of this kind, although the testator's widow is entitled to the actual possession of part of the property and the rents of the remainder, are exhausted by the charges (o).


(m) Ante, p. 1466, Gulliver v. Ashby, 1 W. Bl. 607; Lowndes v. Davies, 2 Scott 71. As to the circumstances in which performance is excused see ante, pp. 1470 seq.
(n) Re Finch, 17 Ch. D. 211.  Compare Lady Langdale v. Briggs, 8 D. M. & G. 391, where the interest devised was reversionary.
(o) Re Varley 62 L.J. Ch. 652 and see the cases on shifting clauses to take effect on a devisee becoming entitled to the possession of another estate, etc; Re Edwards, [1910] 1 Ch. 541 (second point).


 
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