V.-C. M.

1870

GILLETT

v.

GANE.

farms, lands, and hereditaments to two trustees, their heirs and assigns, to the use of the said trustees, their executors, administrators, and assigns, for twenty-one years from the day of his decease, upon the trusts thereinafter expressed, and subject thereto, to the use of his son George Henry Gillett and his assigns for and during his natural life, and from and immediately after his decease to the use of Robert Gillett, the fourth son of the said George Henry Gillett, his heirs and assigns for ever, in case he, the said Robert Gillett, should attain the age of twenty-one years; but if he should die under that age then to the use of the fifth son of the said George Henry Gillett, his heirs and assigns for ever, in case such fifth son should attain the age of twenty-one years; but if he should die under that age, then to such other son of the said George Henry Gillett who, coming after the said fifth son in birth, should first attain the age of twenty-one years, and in default of any such younger son attaining such age of twenty-one years, then to the use of the said George Henry Gillett, his heirs and assigns, absolutely.

The testator died in April, 1861. His son George Henry Gillett, the Plaintiff, had had eleven children, seven of whom were sons. The Defendant Robert Henry Gillett was the third son of the Plaintiff, but claimed to be the person named in the will of the testator as Robert the fourth son of the said George Henry Gillett. The Defendant John William Gillett was the fourth son of George Henry Gillett, and claimed to be entitled to the estate and interest given by the will to the fourth son of George Henry Gillett. The Defendants Robert Henry Gillett and John William Gillett, who were both infants at the time of the filing of the bill, had since attained the age of twenty-one years.

The bill was filed for the administration of the estate of the testator, and for an account; and the question was now raised whether Robert Henry Gillett, the third son, or John William Gillett, the fourth son of George Henry Gillett, was entitled to the estate devised to the use of Robert Gillett, the fourth son of George Henry Gillett.

Mr. Cotton, Q.C., and Mr. Hastings, for Robert Henry Gillett :-
The question is, whether the inaccurate name, or inaccurate

description, is to prevail in this case. The devise is to Robert Gillett,
the fourth son of George Henry Gillett, when, in fact, Robert Gillett, or
Robert Henry Gillett, was the third son, and John William Gillett was
the fourth son. If Robert takes, he will take the feesimple abso-
lutely, because he has now attained twenty-one, and the other sons
will be excluded. An affidavit has been made by the solicitor who
prepared the will, giving an explanation of the circumstances under
which the will was drawn, and the instructions received by him; but,
after the decisions in Doe v. Hiscocks (1) and Bernasconi v. Atkin-
son (2), the affidavit cannot be received. It is, in this case, much
more probable that the testator had forgotten whether Robert was
the third or the fourth son than that he had mistaken the name.
There is evidence to shew that the testator had reasons, which were
probably sufficient in his mind, for excluding the first and second
of his grandsons, but there is no reason given for his excluding the
third son.
The decision in Newbolt v. Pryce (3) governs this case,
where the gift was to John Newbolt, second son of William Strang-
ways Newbolt. The second son was Henry Robert and the third
son was John Pryce Newbolt, and it was held that the name, and
not the description, should prevail, and that John Pryce was enti-
tled to the legacy. In Doe v. Hiscocks the devise was to the
testator's grandson John Hiscocks, eldest son of John Hiscocks. The
eldest son was Simon, but it was held that John, who was the eldest
son by a second marriage, was entitled. In Adams v. Jones (4)
the description prevailed over the name, but there the intention
was palpable, as the gift was to Clare Hannah Adams, the wife of
Thomas Adams. The wife's name was Hannah, but Thomas Adams
had an infant daughter, only two years old, named Clare Hannah,
and it was evident that the testator could not have meant the
child when he said the wife, and one of the names was correct,
so the wife was held to be entitled. In Bernasconi v. Atkinson
the name was held to govern the construction rather than the
description.

[They also cited Hart v. Tulk (5), where "the fourth schedule" was held to mean "the fifth schedule," upon consideration of all

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1870

GILLETT

v.

GANE.

V.-C. M.

1870 GILLETT

v.

GANE.

the provisions of the will, and the state of the testator's property.]

Mr. De Gex, Q.C., and Mr. Edward Ford, for the fourth son, John William Gillett:

There is no evidence in this case to shew that the testator would have preferred Robert Henry to John William, for he did not personally know either one or the other, although there might have been ground for his passing over the first and second sons. There are cases in which it has been held that the description will prevail over the name, as in Lord Camoys v. Blundell (1), where the devise was to the second son of Edward Weld of Lulworth, and there was no Edward Weld of Lulworth, but Joseph Weld was the owner of Lulworth. There was, however, a sister of Edward Weld who had a son named Edward, and a second son called Thomas Weld, and it was held that the description of the unnamed devisee was to guide the decision, and that Thomas Weld, the second son, took. In Drake v. Drake (2) the devise was "to my niece Mary Frances;" the testator had no niece who bore those two names conjointly, but he had nieces who bore one or other of those names. An affidavit of the solicitor to shew what was the state of the family was not admitted, and the gift was held to be void for uncertainty. In Doe v. Huthwaite (3), where there was a question whether the name or description was to prevail, it was held that evidence of the state of the testator's family and other circumstances was admissible to shew whether the testator had mistaken the name of the devisee, or whether the mistake was in the description. In Bradshaw v. Bradshaw (4) evidence of intention was admitted, and it was held distinctly that the description should prevail over the name; and in Jarman on Wills (5) it is laid down that a testator's declarations are admissible to shew which of the imperfectly described persons are those he intended to be the object of the gift. We contend that the testator in this case meant to exclude the third son under any circumstances, and to begin with the fourth son, and then to go on with the fifth and sixth sons.

(1) 1 H. L. C. 778.

(2) 8 H. L. C. 172.

(5) 3rd Ed. p. 407.

(3) 3 B. & A. 632.
(4) 2 Y. & C. Ex. 72.

Mr. Pearson, Q.C., Mr. Morgan, Q.C., and Mr. Wickens, appeared for the trustees.

Mr. Osborne, Q.C., and Mr. Charles, for the Plaintiff.

Mr. Cotton, in reply, cited Jarman on Wills (1), and Bradshaw v. Bradshaw (2).

Feb. 22. SIR R. MALINS, V.C.:

The Defendant Robert Henry Gillett is the third son of the testator's son, and the Defendant John William Gillett is the fourth son. The question to be decided is, whether Robert Henry or John William takes under this devise. No question was raised, or could possibly be raised, that Robert Henry would take under the name of Robert only, if there was no other difficulty in his way. The real question is, whether the testator has mistaken the name or the description of the devisee. If this had been a simple devise to Robert the fourth son, not followed by limitations over to the younger sons of the testator, then the case would, in my opinion, have been free from difficulty; the maxim "Veritas nominis tollit errorem demonstrationis" would have applied, and Robert would have taken. The case of Newbolt v. Pryce (3) is a distinct authority on this point.

The strong inclination of the Court to adhere to the name rather than to the description of the devisee or legatee is shewn by the case of Bernasconi v. Atkinson (4), where, under a gift by a testator to his first-cousin Vincent Bernasconi, the son of his late uncle Peter Bernasconi, the present Lord Chancellor (when ViceChancellor) decided that George Vincent Bernasconi, the son of a deceased uncle of the testator named Joseph, took, on the ground that the testator was mistaken in the description rather than in the name of the legatee, and also upon evidence that George Vincent Bernasconi frequently visited and dined with the testator, who usually called him Vincent. Adams v. Jones (5) is a case in which the description prevailed over the name. The bequest was

VOL. X.

(1) 3rd Ed. p. 363.
(2) 2 Y. & C. Ex. 72.

(3) 14 Sim. 354.
(4) 10 Hare, 345.

(5) 9 Hare, 485.
Ꭰ

2

V.-C. M.

1870 GILLETT

V.

GANE.

V.-C. M. 1870

v.

GANE.

to Clare Hannah Adams, the wife of Thomas Adams; the wife of Thomas Adams was named Hannah only, but he had an infant GILLETT daughter, aged two years, whose name was Clare Hannah. The Vice-Chancellor Turner decided that the wife took. That case has clearly no application to the present, where one son was as likely to be the object of the testator's bounty as the other. Bradshaw v. Bradshaw (1), which was much relied upon by Mr. De Gex as counsel for the fourth son, is another case in which the description prevailed over the name. There the devise was to Robert Blagrove Bradshaw, the second son of the testator's daughter. Robert Blagrove was, in truth, the eldest son of the daughter, and it was held by Lord Abinger that the second son took as well, by the intention of the testator, to be collected from the face of the will, to provide for the second son of his daughter, as by the parol evidence of intention which he admitted. In the present case an affidavit of the Plaintiff, the son of the testator, which was read without objection, shews a motive on the part of the testator for passing over the first and second sons of the Plaintiff, but does not shew any motive for passing over the third son. Apart, therefore, from any difficulty caused by the subsequent limitations over to the fifth son of the son of the testator, and to the sixth and other younger sons, I think it quite clear that Robert, the third son, is entitled, though the testator mistakenly calls him the fourth son.

Although on the argument of the case I thought these subsequent limitations over caused some difficulty, upon further consideration I do not think they do. If, as I am bound to conclude, Robert was the son intended to take, and the testator erroneously considered him to be the fourth son, and the intention was that if he died under twenty-one the estate should go to the next son in order of birth, the same error which led to Robert's being called the fourth son would necessarily lead to the next brother being called the fifth.

The true effect of the will is, therefore, in my opinion, to give the estate to Robert the third son, with a series of executory devises over to the younger sons in succession if Robert, or those succeeding him, should die under twenty-one.

(1) 2 Y. & C. Ex. 72.