Austen v. Collins, 1886 (54 LT 903)

May 5 and June 28.
(Before CHITTY, J.)


Will—Name and arms clause–Forfeiture–License of College of Arms-Declaratory judgment–R. S. C., Order XXV., r. 5.

Under Order XXV., r. 5, the court has now jurisdiction to make a declaratory order, though no con-sequential relief is claimed, but such jurisdiction will be exercised with great caution.

A name and arms clause contained a proviso that in case the devisee should "refuse or neglect within one year to take, use, and bear the surname" of A.,or should at any time afterwards discontinue to use and bear such surname or arms," then, and in every such case, immediately after the expiration of a year, or immediately after such discontinuance, the devise should determine and become void. The devisee assumed the surname, and also used his best endeavours to comply with the direction as to the arms, but failed to obtain a grant from the Herald's College of the right to use the identical arms used by A.

Held, that the estate of the devisee had not been divested by the failure to obtain a grant of the identical arms used by A.

Semble, that a name and arms clause requires a taking of arms by a proper grant from a proper authority (namely the College of Arms), and is not satisfied by a mere voluntary assumption of a coat of arms.

MRS. AUSTEN, who died on the 18th June 1885 by her will, dated the 17th Jan. in the same year, devised certain real estate to the use of the plaintiff then, and in the will, called William Chandler Roberts, and his assigns, during his life, without impeachment of waste, with remainder to the use of the first and every other son of the plaintiff successively, according to their respective seniorities in tail, with divers remainders over, and the testatrix declared that every person who should become entitled as tenant in tail male, or in tail, to the actual possession or the receipt of the rents and profits of the premises thereinbefore devised in strict settlement, and who should not then use and bear the surname and arms of the testatrix's late husband M-ajor Austen, should within one year after he should so become entitled, or (being an infant) within one year after he should attain the age of twenty-one years (unless in the said respective cases any such person should be prevented by. death), take upon himself and use in all deeds and writings which he should sign, and upon all occasions, the surname of Austen together with his own family surname, and also quarter the arms of Austen with his own family arms, and should within the said one year (unless prevented by death) apply for, and endeavour to obtain, a proper licence from the Crown, or take such other steps, as might be requisite to authorise him so to take, use, and bear the said surname and arms of Austen. And further, that in case any such person should refuse or neglect within the said one year to take., use and bear such surname as aforesaid, or should at any time afterwards discontinue to use and bear such surname or arms, then, and in every such case, immediately after the expiration of the said one year or immediately after such discontinuance as aforesaid, as the case might be, if the person who should so for the time being refuse, or neglect, or discontinue as aforesaid, should be tenant for life, the limitation thereinbefore contained to the use of such person and his assigns during his life (being, so far as the plaintiff is concerned, the limitation herein set forth in that behalf), should determine and become void, and if the person who should so for the time being refuse, neglect, or discon-tinue as aforesaid should be tenant in tail male, or in tail, then the limitation should absolutely determine and become void, and in the, said respective cases the said premises thereinbefore devised in strict settlement should immediately go to the person or persons next in remainder, under the limitations therein contained, precisely in the same manner as if such person being tenant for life were dead, or being tenant in tail male, or in tail, were dead and there were a general failure of issue inheritable under such limitations in tail male, or in tail respectively.

On the 19th Sept. 1885 the Queen granted to the plaintiff her royal licence and authority that he and his issue, in compliance with the charge contained in the will , might thenceforth take and use the surname of Austen in addition to and after that of Roberts, and that he and they might bear the arms of Austen quartered with his and their own family arms, and the said grant further provided that the said arms should be only exemplified according to the law of arms and recorded in the College of Arm s, otherwise  that the said royal licence and permission should be null and of no effect.

A difficulty arose as to the quartering of the arms which were used by the late Major Austen with the family arms of the plaintiff. The arms used by Major Austen were arms of which the shield belonged to one Edward Austen, to whom the crest hereafter mentioned was granted in 1603. The plaintiff shortly after the date of the license applied to the College of Arms to grant him those arms, and to exemplify him such arms quartered with his own family arms; but, as Major Austen had never established his right to use these arms, and as the plaintiff could not prove that Major Austen was connected with any person who was entitled to use those arms, the College of Arms declined to grant to the plaintiff the right to use the identical arms which were used by Major Austen, but granted to him. the. right to use arms slightly differing therefrom, and such aims were exemplified to the plaintiff quartered with his own family arms, and he quartered them with his own family arms.

The only difference between the arms granted to the plaintiff by the College of Arms and the arms used by Major Austen consisted in the addition of five fleurs-de-lys upon the chevron which was part of the arms used by  Major Austen, and in the crown forming part of the crest to the arms, being a mural crown in the arms used by Austen, which mural crown was replaced by battlements of  a tower in the arms granted to the plaintiff.

A mural crown as a crest or part of a crest is only granted to a person in military service, and as the plaintiff was not. in military service the College of Arms refused to grant him a mural crown as his crest or a part of his crest, but granted him the device known in heraldry as a device of the battlements of a tower which most nearly resembles a mural crown.

A roebuck formed part of the crest used by Major Austen, and also formed part of the crest granted to Edward Austen. Major Austen was in the habit of using a crest in which the roebuck rested upon a tilting spear, although no such spear formed part of the crest ranted to Edward Austen. The crest granted to the plaintiff contained the tilting spear in exactly the same position as it appeared upon the crest used by Major Austen.

In the grant of a royal licence to use arms it is the invariable practice of the Crown to insert a proviso that the licence shall 'be null and void in the event of the person to whom the. licence is granted not obtaining the exemplification of the arms to be used or quartered by such person according to the law of arms and not obtaining. the recording thereof in the College of Arms.

The special case further stated that, in order that the licence may not become void, and where the applicant cannot satisfy the College of Arms that he is entitled, according to the law of arms, to the precise arms for which he applies, it is the invariable practice of the College of Arms to make an addition, such as the fleurs-de-lys above mentioned to the precise arms which have been. applied for, and to make any other alteration required by the law of arms. Under such circumstances the law of arms necessitates the making of some such variation between the arms applied for and the arms granted, and the College of Arms deem that the royal direction as to a conformity with armorial laws overrides the exact words of such a testamentary clause as in this case, and makes the acceptance of the coat of arms with the distinction in question a sufficient compliance by the applicant with the conditions as to the assumption and quartering of arms which are imposed upon him by such a testamentary clause. And that the College of Arms were of opinion that the arms granted by them to the applicant were as nearly identical with the arms used by Major Austen as the law of arms would permit.

The plaintiff had no issue.   Under these circumstances a special case was stated and the question submitted for the opinion of the court was, whether or not the plaintiff had complied with the provisions of the clause in the will contained as to the assumption of the surname of Austen and the quartering of the arms of Major Austen with his own family arms, so as to avoid a forfeiture or shifting of his life estate.

J. Simmonds for the plaintiff.We ask for a declaration that we have sufficiently complied with the clause in the will. [CHITTY, J-Have I jurisdiction in a case like this to make a declaration as to future rights?]  This is a present question. R. S. C. 1883, Order XXV., r. 5, provides that "no action or proceeding shall be open to objection on the ground that a merely, declaratory judgment or order is sought thereby, and the court may make binding declarations of right, whether any consequential relief is or could be claimed or not." [CHITTY, J.-It appears that that rule gives the power.] The plaintiff has assumed the required surname, and has done all in his power to obtain the necessary licence from the Crown, and has therefore complied with the condition:

  • 3 Davidson's Conveyancing, part 1, p. 356, 3rd ed.;
  • Sheppard's Touchstone, 131;
  • 2 Jarman on Wills, 56, 4th ed.
Bray for the executors.The plaintiff has not complied with the condition in the will by taking the Austen arms, neither has he proved that it is impossible or illegal to do so. It is open to a man to take any coat of arms he pleases without the licence of the College of Arms. There was no penalty for taking a coat of arms used by another person. See
  Simmonds replied.

CHITTY, J.The first point which I have to decide is. whether the court has jurisdiction under Order XXV., r. 5, to make a declaratory judgment though it could not go on to grant consequential relief. That rule enlarges the jurisdiction conferred by sect. 50 of the Chancery Procedure Act 1852, which was held to apply only where the plaintiff would be entitled to consequential relief if he chose to ask for it. The rule leaves it to the discretion of the court to pronounce a declaratory judgment when necessary but it is a power which must be exercised with great care and jealousy. As a rule I refuse to exercise the discretion; but in some cases I make an exception, and I have myself on several occasions exercised the discretion, where by so doing I should not be interfering with the rights of any other persons. I therefore feel no difficulty in hearing this case. The question in this case is, whether or not the plaintiff has forfeited his life estate by reason of non-compliance with the name and arms clause contained in the will. Upon the language of the will before me, I am of opinion that the devise will not be divested by the devisee's failure, to obtain the grant, on it being shown that he has made every endeavour to comply with the terms of the direction. It is not, therefore, necessary for me to decide the question which has been raised as to the authority of the Heralds College being essential to a proper compliance with the terms of a name and arms clause.

His Lordship ordered the case to be mentioned again on or after the 18th June 1886, after the lapse of a year from the death of the testatrix, when he would deliver formal judgment.

June 28.The special case having been amended the case was mentioned, and his Lordship confirmed his previous judgment, and directed that the costs should be paid out of the estate, subject to the clause of forfeiture.

Solicitors: Collins and Collins.

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