who by the same will, gave legacies to his children. The testator had been in the habit of calling his brother Samuel, Edward and Ned. Lord Loughborough, without argument, held the children of Samuel to be entitled. Charles, by Richard. In another case, (i) a bequest to the "Rev. Charles Smith, of Stapleton Tawney, clerk," was held to apply to one who an*swered the other parts of the description, but whose name mistake for was Richard; though it was suggested that the person intended was Charles Smith of Romford, an officer in the army, but who, it appeared, was dead at the date of the will, and that the testator had been informed of the fact. If the other part of the description, as well as the name, had corresponded with those of the deceased Charles Smith, and the testator could have been ignorant of his death, it would have been difficult to sustain the claim of Richard. Other instances So where (k) a testator bequeathed to his six grandchildren (1) by their Christian names, but the name of Ann, one of them, was repeated, and that of Elizabeth, another, omitted, it of mistake in was held that Elizabeth should take the share mistakenly given to Ann by the repetition of her name. Christian name Again, where (m) a testator gave to his namesake Thomas Stockdale, the second son of his brother John Stockdale, the second son, though not named Thomas, was held to be entitled, there being no son of that The error in the name here was remarkable, as the testator, in describing the legatee as his own namesake, had his attention particularly drawn to the name. name. So, under a devise to "Mary Cook, wife of - Cook," (n) a married woman named Elizabeth Cook was held to be entitled, on evidence showing that the testator had no other relative of the name of Cook, and that she was the person intended. In this case the additional description was very slight, it merely showed the devisee to be a married woman. Distinction In cases of this kind, however, it not unfrequently happens that part of the description applies to one person, and part to another. [Here the maxims quoted above give but little where there is help. The essence of the previous cases is that as to one term of the description it is applicable to no one; it is clearly erro more than one claimant. (i) Smith v. Coney, 6 Ves. 42; see In children, vide post ch XXX., ? 4. re Blackman, sup. (k) Garth v. Meyrick, 1 B. C. C. 30. (1) As to gift to a specified number of (m) Stockdale v. Bushby, G. Coop. 229, 19 Ves. 381. (n) Doe d. Cook v. Danvers, 7 East 299. neous. But in the cases now referred to each of the terms applies correctly, or with some degree of accuracy, to some one, and the question is, which is wrong? This can only be solved by considering the general context and the surrounding circumstances, (o) and although it has been said that the demonstration has generally prevailed over the name, yet numerous instances will be found on both sides. Cases where the name prevailed. *Thus in Garland v. Beverley (p) where a testator devised land to his nephew for life, remainder to "William, the eldest son of my said nephew" for life, remainder to the issue of W. in tail; William was, in fact, the second son, but was nevertheless held to be entitled. Again in Gillett v. Gane (q) where the testator devised to his son for life, remainder to "Robert the fourth son" of the son in fee, with an executory gift over if Robert should die under twenty-one "to the fifth son," and so on to those born after the fifth; Robert Henry, in fact, was the third son, but having attained twenty-one was held to be absolutely entitled. Cases where the description On the other hand, in Doe v. Uthwaite (r) where, after previous limitations, the devise was to "Stokeham U., second son prevailed. of A." for life, remainder to his issue in strict settlement, remainder "to John U., third son of A.” and his issue in like manner; in fact, Stokeham was the third son of A. and John was his second, and it was held that the mistake was in the name, and that John and his issue were entitled before Stokeham and his issue. So, where there was a gift to Clare Hannah, the wife of A., whose wife was named Hannah only, but who had an infant daughter, named Clare Hannah, it was held that the testator could not have had an infant in view when he gave a legacy to a wife, and that therefore the wife was entitled to the legacy. (s) And where both the name and description are almost entirely inapplicable, the general purpose of the testator, collected from the circumstances, will sometimes point out the object as where there was a gift for life to Elizabeth, the natural [(0) See ch. XIII. (p) 9 Ch. D. 213. So in Pryce v. Newbolt, 14 Sim. 354, though the name was not fully given: as to which see also Bernasconi v. Atkinson, Gillett v. Gane, Charter v. Charter, all cited infra. (q) L. R., 10 Eq. 29. Other cases where the name has prevailed over the description are, Bernasconi v. Atkinson, 10 Hare 345; Garner v. Garner, 29 Beav. 114; Farrer v. St. Catharine's College, L. R., 16 Eq. 19; In re Lyon's Trusts, W. N. 1879, p. 20. (r) 3 Moore 304, 8 Taunt. 306, 3 B. & Ald. 632. See also Neeld v. Neeld, W. N. 1878, p. 219. (8) Adams v. Jones, 9 Hare 485; and see Lee v. Pain, 4 Hare 253; In re Wolverton Estates, 7 Ch. D. 197. daughter of the testator's servant, Elizabeth, a single woman, with remainder to her children. The servant Elizabeth was a married woman, who had an illegitimate son John, who had died leaving children, and a legitimate daughter Margaret, and it was held that the children of John were entitled, and not Margaret, the circumstances being such as to lead to the inference, that the children *of the illegitimate child of the servant Elizabeth, without reference to name or sex, were the objects of the testator's bounty. (t) avoided by position of name in will. The position in the will of the name of a legatee may sometimes prevent uncertainty. Thus, in Fox v. Collins, (u) where Uncertainty legacies were given to S. C.. A. C. of St.Ives, and S. B., and then a legacy to A. C. of Hereford, and others, and the residue was given "to the said S. C., A. C., and S. B.," it was held, that under the last gift A. C. of St. Ives was entitled, partly on the ground that the word "said" applied to the three persons taken together, and that in the previous part of the will A. C. of St. Ives was named between S. C. and S. B.] scription even If the ambiguity is not removed by the context and by parol evidence [of the surrounding circumstances, the gift necessa- Name and derily fails for uncertainty; for direct evidence of the testa- ly balanced. tor's intention is inadmissible. Thus in Drake v. Drake, (2) where a testator gave a legacy to "his sister Mary Frances T. D.," and the residue of his estate to "his niece Mary Frances T. D." and three other persons. The testator had a sister-in-law, but no niece of that name, though he had nieces, one of whom was named Frances Isabella T. D., another Mary Caroline T. D., and a third Mary Elizabeth T. D.; there was no circumstance showing that one niece was intended to take the share of residue rather than another, and nothing to take it from a niece and to give it to the sister-in-law, unless, without any evidence to prove error of demonstration, there was a rigid rule that the name should prevail. It was therefore held in D. P. that the gift of one-fourth of the residue failed. The same principles are applicable for the construction of wills (t) Ryall v. Hannam, 10 Reav. 537; and see Rickit's Trust, 11 Hare 299. (u) 2 Ed. 107. See also Doe v. Westlake, 4 B. & Ald. 57. Other cases in which the description has prevailed over the name are, In re Feltham's Trusts, 1 K. & J. 528; Hodgson v. Clarke, 4 D., F. (z) 8 H. L. Cas. 172, affirming Romilly, M. R., 25 Beav. 642. No name except as part of where the devisee is not mentioned by name, but the the description. description is composed wholly of "demonstration," as, where the gift is to the first or second son, or to the children, of some named person. Thus in Camoys v. Blundell, (y) (where the gift was to the "second son of Edward Weld, of Lulworth, for life," and there was among other subsequent remainders, a remainder *to the first and other sons of each brother, except the eldest, of Edward Weld, and also a remainder to Lady S., one of the sisters of Edward Weld: the facts were, that there was no Edward Weld, of Lulworth, but there was a Joseph Weld of that place, who had three sons and an elder brother, and a sister, Lady S., and there was an Edward Joseph Weld, of the same place, (son of Joseph Weld) who had no children or elder brother, and no sister named Lady S.; and it was decided that the second son of Joseph, as more perfectly answering the description, was the person designated to take the first estate for life under the description of the second son of Edward. Case of indefi Where the objects of gift are described by reference to locality, there must be some definite local limit. Thus, a gift to persons resident in the hospitals of or in the vicinity of C., has been held void for uncertainty as to what should be said to be in the vicinity of C. (z) nite reference to locality. Where one answers both name and description he But where both name and description correctly describe one person, the improbability of a bequest will of course not deprive him of it in favor of another who answers the description will take, not- and (if the will were to be made afresh) has greater proimprobability. bability on his side, but is of a different name.] (a) withstanding Effect where V. Sometimes a testator distinctly shows an intention to create a trust, but does not go on to denote with sufficient clearness trust is created, who are to be its objects; the effect of which obviously is, that the devisees or legatees in trust (whom we suppose the property for the benefit of the but the object uncertain. to be distinctly pointed out) hold (y) 1 H. L. Cas. 778. See also Delmare v. Robello, 3 B. C. C. 447, 1 Ves., Jr., 412; Holmes v. Custance, 12 Ves. 279; Daubeny v. Coghlan, 12 Sim. 507; In re Ingle's Trust, L. R., 11 Eq. 578; Bristow v. Bristow, 5 Beav. 291 (where both fathers bore the same name). (2) Flint v. Warren, 15 Sim. 626. As to the extent of London in a gift to "the hospitals of London," see Wallace v. Att.Gen., 33 Beav. 384. (a) Mostyn v. Mostyn, 5 H. L. Cas. 155, 23 L. J., Ch. 925. The second of the two Christian names (John Henry) was omitted; but as the testator had done the like in other cases, the statement above given is virtually correct.] person or persons on whom the law, in the absence of disposition, casts it: in other words, the gift takes effect with respect to the legal interest, but fails as to the beneficial ownership.4 As in Stubbs v. Sargon, (b) where a testatrix endorsed a promissory note for £2000 to Mrs. Sargon, which she accompanied with a letter, declaring the note to have been given to Mrs. Sargon for her sole use and benefit, independent of her husband, for the express purpose of enabling her to present to either branch of her (the testatrix's) family any portion of the principal or interest, as she might consider the most prudent; and, in the event of the *death of Mrs. Sargon, by that bequest the testatrix empowered her to dispose of the said sum and interest by deed or will to those or either branch of her family she might consider most deserving; and that to enable her (Mrs. Sargon) to have the sole use and power of the said sum of £2000 due by the above note of hand, she had specially endorsed the same in her favor. Lord Langdale, M. R., was of opinion, that the promissory note was not endorsed and delivered to Mrs. Sargon for her own absolute use, but for the purpose of the money secured by it being disposed of by her to such parts or members of the testatrix's family as were intended to be thereby designated. Unfortunately, the letter was so expressed, that the objects could not be ascertained; and the trust being too indefinite for the court to act upon, the £2000 must be treated as part of the testatrix's personal estate. On appeal, Lord Cottenham was of the same opinion. (c) [In Corporation of Gloucester v. Wood, (d) one of several testamentary papers contained the following words: "In a Corporation of codicil to my will I gave to the corporation of Gloucester Wood. 4. As to the sufficiency of words of gift to create a trust, see Bull v. Bull, 8 Conn. 47; Vandyck v. Van Beuren, 1 Cai. 84; Pennock's Estate, 20 Penna. St. 268; Farwell v. Jacobs, 4 Mass. 634; Bolling v. Bolling, 5 Munf. 334; De Bruler v. Ferguson, 54 Ind. 549. But where there is a plain and positive devise, the court will not raise an implied trust in the executors to favor a particular devisee. Hart v. Hart, 2 Desaus. 57. It would be carrying the doctrine of implied trusts further than a court is warranted to put a forced construction on a plain devise of a will to favor a particular legatee. Ibid. Gloucester v. Where a conveyance of a portion of grantor's estate is made, in trust, to such persons as his wife should appoint, and, in default of appointment, to her heirs and assigns, reserving a life estate in the grantor, on the death of the grantor the wife takes an absolute estate. Brunson v. Hunter, 2 Hill (S. C.) Ch. 490. (b) 2 Kee. 255; see also Harland v. Trigg, 1 B. C. C. 142; Robinson v. Waddelow, 8 Sim. 134, stated ch. XXIX. See also cases stated ante pp. *214, et seq. (c) 3 My. & Cr. 507. (d) 3 Hare 131. |