Subject to Time


The law has a long memory – forget elephants, it looks far beyond any ordinary mortal span. Technically speaking, its memory kicks in on 3 September 1189.[i] But even the best memories suffer from deterioration. With such a lengthy span to cover, it is an inevitable commonplace of legal history that facts become lost. Records of rules or events might never be made. Or, if records are made, these might not survive or survive only partially. Those versed in the law also pass on, and might be replaced by others who sing the verses rather differently.

Sometimes, though, knowledge can be lost surprisingly quickly, without any of the standard traumas of intervening centuries. And this sort of loss can occur even in the modern context.

Take sec. 184, Law of Property Act 1925. This provides that:

‘In all cases where … two or more persons have died in circumstances rendering it uncertain which of them survived the other or others, such deaths shall (subject to any order of the court), for all purposes affecting the title to property, be presumed to have occurred in order of seniority …’

This frames what is known as a ‘commorientes rule’ – a provision to break the impasse where the law must (in particular for succession) know the sequence of two deaths, but the facts on the ground do not allow for that sequence to be known with sufficient certainty. Classic nineteenth-century examples of such scenarios in English law include families lost by shipwreck while emigrating,[ii] or killed as colonial occupiers in periods of violence.[iii] Section 184 looks to resolve such scenarios simply and clearly with an age-based, bright-line rule.[iv]

Within the section, however, the qualification ‘subject to any order of the court’ has caused a degree of difficulty, despite even now standing only around a century from the Act’s passage (and the rule’s slightly earlier first appearance as sec. 107(3), Law of Property Act 1922). In truth, this portion of the provision was already considered difficult within around 20 years.

In Hickman v Peacey, a seminal decision on sec. 184 and still our leading authority on the rule, Lord Simonds had ‘tried in vain to give any reasonable meaning and effect to the parenthetical words’.[v] They were ‘obscure’ per Viscount Simon LC;[vi] his Lordship ventured an attempt at their meaning ‘without any degree of confidence’ and conceded even then that the words wouldn’t be well suited.[vii] His Lordship’s idea was that the words account for situations where ‘sufficient evidence as to the respective ages of the deceased persons was not forthcoming’ – an issue which certainly had been discussed elsewhere for commorientes rules,[viii] but one of absolutely vanishing practical relevance given modern recording systems.[ix]

An interesting feature of this discussion is the confidence of the court as a whole that, though they none of them could claim to understand the words in question, none of the judges expressed any doubt over their irrelevance to the dispute before them.[x] To some extent, the words did potentially matter – arguments made by the parties suggested quite different effects.

For the appellant, it had been suggested that the words did no more than leave open recourse to the courts and a departure from the statutory presumption where an executor might not be sure that the facts were ‘uncertain’ in the required sense:

‘The words “subject to any order of the court” were put in because one of the objects of the Act was to facilitate the administration of estates. The legislature assumes that there are some cases when there is so much uncertainty that opinions may vary. If there is prima facie uncertainty the executors may proceed to administer on the footing of s. 184, but these words leave it open for persons interested to go to the court for its order.’[xi]

This draws on what is certainly the key reason for introducing sec. 184 in general (to prevent the costly need to apply to court for orders to administer estates in such situations of uncertainty[xii]) and is very similar to the terse explanation for the specific parenthetical words given in a leading 1932 commentary on the statute: ‘it is still open for the court to hold as a fact that the deaths were simultaneous, or occurred in any particular order’.[xiii] The interpretation is difficult, though, as it makes the words themselves pointless. If the court can determine a chronology, then the matter is simply not ‘uncertain’ and the statutory presumption is plainly inapplicable on its own terms. This is obvious without extra, indirect wording, as is the fact that an executor or interested party could seek the court’s ruling if applicability is unclear.

By contrast, for the respondent it was daringly said to be ‘impossible to explain the words … save that they confer a discretion on the court.’[xiv] This would do an awful lot to undermine the firmness of the age-based default sequence and the speeches of their Lordships are clear that no such broad discretion is suggested by the words (albeit of little else in relation to them). As with other areas of law dealing with instances of intractable factual uncertainty,[xv] it seems critical that the courts can facilitate a definitive answer to a dispute, and that the integrity and authority of the law not be depleted by an inevitable failure to deal with impossibly problematic circumstances.

As to the textual mystery, though, one answer does seem to be available to give meaning and relevance to the words ‘subject to any order of the court’; one apparently lost to memory and well-hidden from any (frankly, normal) person not very intimately versed in commorientes scenarios and rules. Unfortunately, though, this answer is a little underwhelming in the mystery-solving stakes; a diminutive man behind the curtain, to whom Dorothy has indeed paid no attention.

To give purpose to the words, we need a provision conferring on the court a power to make an order, where that order might stand in conflict with a general resolution (based on the deceased’s ages) of an uncertainty as to a sequence of deaths in cases affecting title to property. Just such a power actually features in the same suite of property legislation from 1925. Section 44, Trustee Act 1925 (a provision apparently not cited in Hickman at all) allows for the court to make an order to vest (an interest in) land in any such person and manner as the court finds appropriate to deal with one of the several difficulties that the section contemplates. Those difficulties include, inter alia (at nr. iii), it being ‘uncertain who was the survivor of two or more trustees jointly entitled to or possessed of any interest in land’. Unlike the sec. 184 rule, this Trustee Act provision was not novel; such powers can be found earlier, e.g. in sec. 8, Executors Act 1830.[xvi]

Without the carve-out in sec. 184, this portion of sec. 44, Trustee Act would surely have been left devoid of any significance – the problematic uncertainty would have just been resolved by the new general rule and no discretion would have been reserved to the court in relation to a vesting order in the trustee context. (Our 1932 commentary unhelpfully just includes a cross-reference for its reader, giving no actual guidance as to application of these otherwise inconsistent sections: ‘As to the presumption of survivorship: L.P.A., 1925, s. 184.’[xvii])

Is there, though, aside the niche status of the sec. 44 rule (I myself have not found an instance of a sec. 44, nr iii situation), any reason why this possible role for the words in sec. 184 would have been lost to recall, and this as early as the 1940s? Well, consider the statutory regime. The sec. 44 rule to be accounted for featured in the Trustee Act. Its forerunner Executors Act rule was repealed at the same time, but through the Administration of Estates Act. Meanwhile, the general commorientes rule for property title had found a home in the Law of Property Act 1925. With none of the relevant single provisions cross-referencing each other, or explicitly drawing any framework together, a broader picture is inevitably more difficult to draw. This disparate framework for covering these commorientes issues in itself no doubt mattered, no doubt also reinforced by the attentions of property lawyers being drawn by more significant features of the revolutionary mass of new legislation. In perhaps the most ambitious example of codification in English law, and in the absence of a sophisticated commentary tradition in continental style (where even such intricate issues might be meticulously investigated), coherent understanding perhaps hit the limits of manageable practice.


Andrew J. Bell

University of Bristol Law School

January, 2023



[i] Statute Quo warranto (1290); J.H. Baker, Introduction to English Legal History, 5th edn (OUP 2019) p. 32.n. 92.

[ii] E.g. Wright v Sarmuda (1815) 2 Phil. Ecc. 266 n. c).

[iii] E.g. In the Goods of Ewart (1859) 1 Sw. & Tr. 258.

[iv] See further e.g.

[v] Hickman v Peacey [1945] AC 304, 346-47.

[vi] Ibid., 316.

[vii] Ibid., 316.

[viii] E.g., from France, C. Demolombe, Cours de Code Napoléon, vol. 13 (1879), §§ 104, 105.

[ix] A centralised registration system for births was first introduced by the Births and Deaths Registration Act 1836.

[x] See e.g. Hickman v Peacey [1945] AC 304, 316 (Viscount Simon LC), 328-29 (Lord Wright).

[xi] Ibid., 309.

[xii] Joint Select Committee of the House of Lords and the House of Commons, Report on the Law of Property Bill, House of Commons Papers 1920, vol. 7, p. 537.

[xiii] B. Cherry, D. Parry & J. Maxwell, Wolstenholme & Cherry’s Conveyancing Statutes, 12th edn (1932), p. 548.

[xiv] Hickman v Peacey [1945] AC 304, 311.

[xv] Cf. e.g. and

[xvi] 11 Geo IV & 1 Wm IV, c 60. This seems to represent the earliest statutory regulation for commorientes in England and Wales. See also e.g. secs 25, 26 (iii), Trustee Act 1893 – repealed by sec. 70, Trustee Act 1925 (via Sched. 2 to that Act).

[xvii] Wolstenholme & Cherry (above, n. 13), p. 1353. No cross-reference goes the other way, however, to alert a sec. 184 reader to sec. 44.


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