1853. BOYSE

v.

ROSSBOROUGH.

Judgment.

ing had been in England, I think that it might have supported the bill. There is a bill by the heir in Ireland, impeaching the validity of the will simpliciter, and an issue has been directed and tried upon that; and if that suit had been in the Court of Chancery in England, it would probably have given an equity for a cross bill to establish the will; but, being in Ireland, it will not give such an equity here for a cross bill, nor for a bill of peace, more especially as the heir has succeeded in his suit in Ireland.

I therefore overrule the demurrer, but without costs, as the point is now raised for the first time.

A month's time was given to put in an answer.

Dec. 6th &

7th.

Will-Con

struction-Mis

nomer-Two ClaimantsEvidence not admissible.

A will contained a legacy of 300l. to Com

modore P. D.,

of S., and a like legacy to the

children of P. H. D. This

DOUGLAS v. FELLOWS.

THIS was a claim by the three children of Henry Osborn Douglas against the executors of the will of Ann Strutt and the children of Peter John Douglas, five in number, for a legacy of 300l. and interest.

Ann Strutt, late of Camberwell, in the county of Surrey, the wife of Joseph Strutt, of the same place, in her last will, dated the 4th of August, 1842, and made in execu

last legacy was claimed by the three children of H. O. D., and also adversely by the five children of P. D., whose real name was P. J.D. P. J. D. and H. O. D. were both in the same degree of relationship to the testatrix, and she had given like legacies to their brothers and sisters. H. O. D. was dead at the date of the will:-Held, that the previous gift to Commodore P. D., and the fact that the gift was not to the children of "the said" P. H. D., together with the intention manifested in the will to provide for all the members of the D. family, was sufficient to enable the Court to decide, upon the face of the will, that the children of H. O. D. were intended, although there was no reference to him as "the late" H. O. D.

Held, also, that this construction did not strike out the name "P." but treated it as having been used by mistake.

Held, lastly, that extrinsic evidence of the intention of the testatrix was not admissible, although it might have been if there had been only one class of claimants.

tion of a power given to her by her marriage settlement, expressed herself as follows:-"I give and bequeath unto Lady Charlotte Jephson, of Pelham Crescent, Old Brompton, in the county of Middlesex, widow, the sum of 300l., part of the sum of 1770l. Bank Stock standing in the names of Timothy Richardson and Thomas Fellows. I give and bequeath unto - Barny, the wife of the Rev. John Barny, of East Charlton Somertson, in the county of Somerset, clerk, the sum of 300l., further part of the said Bank Stock. I give and bequeath unto Commodore Peter Douglas, now or late of Portsea, in the county of Southampton, the sum of 300l., further part of the said Bank Stock. I give and bequeath unto Charles Smith, of Charlton, in the county of Kent, now or late a cadet in the Military College, Woolwich, in the said county of Kent, the sum of 300l., further part of the said Bank Stock. I give and bequeath to the children of Peter Henry Douglas the sum of 3001, further part of the said Bank Stock, equally to be divided between them. I give and bequeath to Friend, the wife of Captain Friend, the sum of 135l., further

part of the said Bank Stock. I give and bequeath to Hammond, the wife of Hammond, the sum of 135l., residue of the said Bank Stock. I am not aware of the residences of the said two last-mentioned legatees.”

The will also contained a bequest to the children of "the said" Lady Jephson.

The testatrix appointed the said Timothy Richardson and Thomas Fellows her executors. She died in March, 1850, and her executors proved her will.

There were six brothers and sisters of the Douglas family, all cousins to the testatrix. One of them, named Henry Osborn Douglas, and usually called Henry Douglas, was the father of the Plaintiffs, and had died in 1820, leav

1853.

DOUGLAS

v.

FELLOWS.

Statement.

1853.

DOUGLAS

v.

FELLOWS.

Statement.

ing the Plaintiffs his only children. Another brother was Peter John Douglas, formerly a Commodore and now an Admiral in the Royal Navy; Peter John Douglas had, at the date of the will, and at the death of the testatrix, five children, who were Defendants to this claim. There was no brother named Peter Henry Douglas. Of the six brothers and sisters of the Douglas family, one died without issue long before the testatrix. Two of the sisters were widows, in good circumstances, and without children. The sixth was the mother of Mrs. Barny, to whom a legacy was given, and who was her only child. The state of the Douglas family was known to the testatrix, but she did not know where the children of Henry Osborn Douglas resided, and it did not appear that she knew that there were children of Peter John Douglas.

Argument.

Mr. Cairns, for the Plaintiffs, offered evidence of the intention of the testatrix in making this bequest.

Mr. Wigram, Q. C., for the children of Commodore Douglas, objected to this evidence being received.

Mr. Cairns. The description of the children applies with exactly equal inaccuracy to two classes of children, those of Peter John Douglas and Henry Osborn Douglas. Therefore, the case is like a gift of a subject by a description which will apply to two, and it comes within the rule laid down by Tindal, C. J., in Miller v. Travers (a), that "where the description of the thing devised, or of the devisee, is clear upon the face of the will, but upon the death of the testator it is found that there are more than one estate or subject-matter of devise, or more than one person whose

(a) 8 Bing. 244.

description follows out and fills the words used in the will; as where the testator devises his manor of Dale, and at his death it is found that he has two manors of that name, South Dale and North Dale; or where a man devises to his son John, and he has two sons of that name: in each of these cases respectively parol evidence is admissible to shew which manor was intended to pass, and which son was intended to take. The other class of cases is that in which the description contained in the will of the thing intended to be devised, or of the person who is intended to take, is true in part, but not true in every particular. As where an estate is devised to a person whose surname or christian name is mistaken, or whose description is imperfect or inaccurate.”

So in 1 Jarm. on Wills, 376, it is said: "that where part of the description applies to one person and part to another (a state of things which would, if the ambiguity were not removed in some manner, necessarily be fatal to the intended disposition), parol evidence is admissible for the purpose of shewing which of the imperfectly described individuals was meant to be the object of the gift:" Lindgren v. Lindgren (a). The rule is thus stated by Lord Abinger in Doe d. Hiscocks v Hiscocks (b), "Evidence of intention can properly be admitted . . . . . where the meaning of the testator's words is neither ambiguous nor obscure, and where the devise is on the face of it perfect and intelligible; but, from some of the circumstances admitted in. proof, an ambiguity arises as to which of the two or more things, or which of the two or more persons (each answering the words in the will) the testator intended to express. Thus, if a testator devise his manor of S. to A. B., and has two manors of North S. and South S., it being clear he means to devise one only, whereas both are equally denoted

1853.

DOUGLAS

ข. FELLOWS.

Argument.

1853.

DOUGLAS

v.

FELLOWS.

Argument.

by the words he has used, in that case, there is what Lord Bacon calls an equivocation,' that is, the words equally apply to either manor." [The VICE-CHANCELLOR.—That seems to refer to an inaccurate description of some one person. I suppose the case of Beaumont v. Fell (a) was in the mind of the learned Judge at the time.] Suppose that my clients were the sole claimants? [The VICECHANCELLOR.-Then, perhaps, the evidence might be admissible; but is it admissible to shew which of two classes of claimants was intended?] The moment at which the evidence becomes admissible is when the state of the family is ascertained, and no one is found to answer the description of the legatee. What difference can it make, that subsequently two parties claim under the inaccurate description? The nature of the evidence which I propose to adduce is, that the testatrix, acting by an amanuensis, gave a particular name to a person of whose proper name there is no doubt. Now, I should be at liberty, if she had been in the habit of calling this person by a wrong name, to shew that it was the only name for him that she knew; and surely, if an amanuensis writes a wrong name in pursuance of correct orders, I may also give evidence of that. [The VICE-CHANCELLOR.-That last step is a wide one. Whatever a testatrix is in the habit of doing, the Court wishes to know; but she cannot be taken to adopt all that other people do for her.] But, on principle, can there be any difference in admitting the evidence where there are two adverse claimants, and in a case in which there is only one? If the heir had entered into possession, and a devisee inaccurately described had brought ejectment against him, then, according to Doe v. Hiscocks, the devisee might prove his title by evidence of the testator's intention. Suppose that Mr. Wigram's clients had entered into possession and my clients had brought ejectment, could there be any

(a) 2 P. Wms. 140.