Re Parrott, Cox v Parrott

Chancery Division of the High Court
18^th January 1946

Before (the judges sitting on the bench)

• Mr Justice Vaisey 

Counsel (the barristers representing the parties)

• Heckscher on behalf of Tim Cox, the Plaintiff
• E.J.T.G. Bagshawe, R. Cozens-Hardy Horne & C.G.A. Cowan on behalf of various Defendants

Summary of the facts

Walter Parrott died on 21^st June 1938, and this case concerns his will, dated 16^th June 1934.

Amongst other things — clause 9 of the will directed his trustees —

“to stand possessed of the capital and income of my residuary estate in trust for the said Tim Spencer Cox if and when he shall attain the age of twenty-one years and provided he shall within six months from the date of my death or his attaining the age of twenty-one years by deed poll assume the name of Walter Tim Spencer Parrott and provided he shall assume take or otherwise use my family crest and coat of arms interspersed with the crest and coat of arms of the Burgoyne family the baronetage of which was created in 1641 and which became extinct on the death of the tenth and last baronet Sir John Montagu Burgoyne  in 1921.”

Tim Harington Spencer Cox (called “Tim Spencer Cox” in the will itself) reached the age of twenty-one years on 10^th August, 1945, at which point he took out a summons to find out — amongst other things — whether he would get the full inheritance from Walter Parrott were he to adopt the name of “Walter Tim Spencer Parrott” by deed poll as described in the will.

Judgment

Mr Justice Vaisey —

The first question is whether the plaintiff, in order to establish his title to the testator’s residuary estate must within six months from his attaining the age of twenty-one years, that is to say, on or before 9^th February, 1946, “by deed poll assume the name of Walter Tim Spencer Parrott.”  What do those words mean?  In my judgment, they express the testator’s intention that the plaintiff should take the name of Walter Tim Spencer Parrott in lieu of and in substitution for his present name of Tim Harington Spencer Cox in a two-fold sense, that is to say, first that his compound baptismal name of Tim Harington Spencer was to be abandoned in favour of and replaced by the new compound name of Walter Tim Spencer, and secondly, that his surname Cox was to be altered to the surname Parrott.  Now there would be no difficulty about the second part of the change, but I hold that the first part is impossible.  Nobody can alter or part with a Christian name by deed poll.  It would not, in my judgment, be right to attribute to the testator so fantastic and absurd an intention as that the plaintiff should assume the name of Walter Tim Spencer Parrott as a compound surname, either in lieu of, or in addition to, his patronymic Cox, nor would the court hold that his doing so would comply with the provision in the will.  That is not what the testator meant him to do.

The law in this matter is, I think, accurately summed up in Davidson’s Precedents and Forms in Conveyancing 3^rd ed. vol. 3, part I, where, dealing with the subject of provisions requiring a legatee to take the name of a testator, it is said in the footnote on p. 361:

“When the legatee is of a different Christian name from the testator, he cannot of course part with his own Christian name, nor can he take that of the testator, except as part of a compound surname consisting of the Christian name and surname of the testator.”

Apart from the impossibility of fulfilling the condition as I interpret it, there are other points of uncertainty about it.  What is meant by the word “assume?”  Nothing is said as to any subsequent user of the assumed name, or as to the duration of any such user, and it may well be that the condition fails on the ground of uncertainty in addition to its being, as I hold, impossible.

There are only two, or at most three, ways in which a Christian name may be legally changed.  First, it may be assumed, by the omni-competence of an Act of Parliament, as, for example, the Baines Name Act, 1907.  Secondly, at confirmation, as explained in Phillimore’s Ecclesiastical Law, 2^nd ed., vol. I., at p. 517, where the following passage from Coke’s Institutes I, 3.a., is cited:

“If a man be baptized by the name of Thomas, and, after, at his confirmation by the bishop, he is named John, he may purchase by the name of his confirmation.  And this was the case of Sir Francis Gawdie , chief justice of the Court of Common Pleas , whose name by baptism was Thomas, and his name of confirmation Francis; and that name of Francis, by the advice of all the judges, in anno 36 Hen. 8, he did bear, and after use in all his purchases and grants.”

Dr Burn in the 9^th edition of his Ecclesiastical Law, vol. 2, p. 10, questioned the accuracy of the view that this is still the law, on the ground that —

“Upon review of the liturgy at King Charles the Second’s restoration, the office of confirmation is altered as to this point, for now the bishop doth not pronounce the name of the person confirmed, and therefore cannot alter it.”

This, however, was a mistake, as is pointed out in Phillimore (ubi supra), where it is said:

“But Lord Coke’s authority cannot be set aside in this way.  He had before him at the time when he thus laid down the law the confirmation services of Edward and Elizabeth, which are not, as might be inferred from the remark of Dr Burn, different in this respect from that of Charles the Second.  There seems to be no reason to impugn the authority of the precedent cited by Lord Coke.”

Cases in which the precedent has been followed are mentioned in Phillimore, and there are records of others in Notes and Queries, 4^th Series, 6, 17, and 7^th Series, 2, 77; besides which, I know that bishops have in recent years on quite a number of occasions exercised this power, and there is a recognition of their right to do so in the directions given with reference to the Adoption of Children (High Court) Rules, 1926, Ann. Prac., 1941, p. 2620, in which it is said —

“The names set out in the certificate of baptism cannot be altered except if the child is confirmed.”

The bishop’s power is discretionary, and is only exercised for what he regards as a good and sufficient reason.  It is said to have originated in the need for getting rid of “lasciva nomina”, that is to say, names possessing some improper connotation which had been given in baptism incautiously, or had subsequently acquired such a connotation.  A third method by which a Christian name may in a sense be altered is under the power to “add” a name when the child is adopted; but the precise quality of such an added name is I think open to some doubt, for no one can in strictness possess more than one Christian name, whether it consists of one word or of several, and this method may perhaps be regarded as anomalous.

[Mr Justice Vaisey then dealt with the second of the two provisos in cl. 9, and held that the time-limit of six months did not apply to it, and that it was not possible to “intersperse” one crest and coat of arms with another, making that proviso void; and then carried on with his judgment.]

There is further uncertainty in cl. 10 of the will.  To make any sense of it at all, I should have to change the word “and” into the word “or”, and I think that some words must have been left out by mistake.  The will is in many respects very carelessly drawn, and, while I need not in this case rest my decision on any ground of public policy as in In re Fry [1945] Ch. 348, I cannot think that the court would wish to assist so inartistic an attempt to interfere with a man’s name, the one thing which inalienably belongs to him and is the label which indicates his identity.  I will declare that the plaintiff is now absolutely entitled in reversion expectant on the death of the testator’s widow; that he is under no obligation to assume any name or to assume, take or otherwise use any crest or coat of arms; and that cl. 10 of the will in the events which have happened is no longer capable of having any operation.

The costs of all parties as between solicitor and client will come out of the trust estate.

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