Friend, the sum of £135, further part of the said Bank stock. I give and bequeath to Hammond, the wife of Hammond, the sum of £135, 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-[116]-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.

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 (8 Bing. 244), 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 [117] 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 (9 Beav. 358). The rule is thus stated by Lord Abinger in Doe d. Hiscocks v. Hiscocks (5 M. & W. 363), "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 [118] 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 (2 P. Wms. 140) was in the mind of the learned Judge at the time.] Suppose that my clients were the sole claimants?

[THE VICE-CHANCELLOR. 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 [119] reason for preventing them from using similar evidence? In ejectment the Plaintiff must prove his title, but the Court never considers who the Defendant is. But here, apart from any evidence of the intention, there is sufficient on the face of the will to prove that my clients are the persons intended.

The Vice-Chancellor intimated that he could not receive the evidence.

Mr. Wigram, Q.C. The question is not whether the children of one of these persons are entitled, but whether the children of either are excluded. The real mode of construing this will is to read it as though the word "and" were inserted between "Peter" and "Henry." Then it is obvious why the testatrix did not say "the said Peter, because "the said" could not apply also to Henry. The rule in these cases is, as it is expressed by Lord Brougham in Lord Camoys v. Blundell (1 H. L. Cas. 792), "to get at the meaning of the testator in the best way you can," as was done in Ryall v. Hannam (10 Beav. 536). There would be more reason on the face of the will to exclude Henry than Peter, for the name "Peter" is used in the first place as the designating name; and if Henry had been referred to he would have been mentioned as "the late," for he was dead. It would be doing a violence to the will to expunge the word "Peter." No improbability is thrown on my view by the previous gift to Peter, for the testatrix gives a legacy to Lady Jephson, and also one to her children; and all these legacies are too small to be intended as provisions.

Mr. Hodgson, for the executors.

The reply was not called for.

[120] THE VICE-CHANCELLOR [Sir W. Page Wood]. I think that, without admitting the evidence of intention in this case, I must decide against Mr. Wigram's clients; but I should be most reluctant to have it supposed that I should be inclined to admit this evidence. I think that the only case in which it would be admissible might, perhaps, be that imaginable case which was hinted at in Doe v. Hiscocks (5 M. & W. 372), where, the description used being incorrect and equally inapplicable to two persons, an equivocation arises.

If that be law in any sense, it must mean that, where all the legitimate evidence has been admitted, and two classes of persons, improperly designated, seem to be equally pointed at by the words of the will, an equivocation then arises; just as in the case where there are two manors of Dale, either of which might have been designated by the words of the will.

However, that question does not arise here, because it appears to me that there is sufficient in the evidence which is strictly admissible to incline the balance in favour of the Plaintiffs.

I derive some comfort in cases of this kind, in which the Court must more or less guess at the meaning of the testator, from the authority of Fox v. Collins (2 Eden, 107), in which there was a gift to "the said " Ann Collins, and there were two persons of that name mentioned in the will; and Lord Northington said that he felt it to be his

duty to decide that there was no intestacy, if he could by any means determine from the will which of the two was intended.

Unless I, in this case, adopt Mr. Wigram's suggestion of inserting the word "and" between the words "Peter" and [121] "Henry," I think that no doubt as to the meaning of the testatrix arises here. There is, first, a gift to Commodore Peter Douglas, whose real name was Peter John Douglas. He is described in the will as of Portsea in Southampton. Then there are legacies to two or three persons, and then a legacy to the children of Peter Henry Douglas, not of "the said " Peter Henry Douglas, as when she gives to the children of Lady Jephson, which, if she meant to refer to the children of Peter, one would naturally expect to find. Besides, there is the external fact that Henry Osborn Douglas stood in the same degree of relationship to the testatrix as Peter John Douglas. They were both members of the same family. Taking it to be a gift to the children of one person, and not of two, and having to decide on the face of the will who was intended, I think that, if the testatrix had intended the legacy for the children of Commodore Peter Douglas, whom she had before so fully described, she would hardly have given him a second name without referring to him as "the said." I notice also that she had provided for that branch of the family by giving to Commodore Douglas a legacy of the same amount; and, therefore, she would be more likely to intend this legacy of £300 as a provision for the children of the deceased Henry Osborn Douglas; and though one might have expected to find a reference to him as "the late" Henry Osborn Douglas, yet I think that the want of such reference is not enough to counterbalance the effect of the other circumstances to which I have referred.

Mr. Wigram says that, by thus deciding, I strike out the word "Peter," but I do not think that I do. I only decide that she used that name by mistake; and the fact, which is in evidence, that she did not know where these children resided accounts for her not having described them. Putting in the word "and," as Mr. Wigram suggested, would be doing much more violence to the will. It [122] is true that it might not be of such material consequence here as in other cases; but if the word "each" might be inserted in a like case, where more than two names were used, a very serious effect might be produced. This argument assumes that it is not probable that the testatrix would omit to provide for the children of Henry Osborn Douglas; but there is no other instance in the will of her giving a legacy to the children of two persons together. The legacy to his children is consistent with what appears to be her object, namely, to divide this fund equally among a certain class of persons, or their children; whilst there would be a further consequence, if I were to adopt Mr. Wigram's view, that, the testatrix having given a legacy of £300 already to Commodore Douglas, his children would be further let in, although more numerous than Henry's, to share equally with the three children of Henry Osborn Douglas. That is not a very probable intention, looking to the equal degree of relationship of Peter and Henry to the testatrix.

Therefore, upon the face of the instrument itself, I think there is sufficient to shew that the children of Henry Osborn Douglas were intended. The Plaintiff's claim must be allowed. The costs must come out of the estate.

[123] LOOSEMORE v. KNAPMAN. Dec. 8, 1853.

[S. C. 2 Eq. R. 710; 23 L. J. Ch. 174; 2 W. R. 664. Distinguished, Field v. Moore, 1855, 7 De G. M. & G. 721; 44 E. R. 280.]

Settlement. Jointure Charged primarily upon the Settlor's Real Estate.

By a settlement in contemplation of marriage, reciting that, the intended husband being entitled to certain real estate, it was agreed on the treaty for the marriage that he should secure to the intended wife, in case she should survive him, a certain annuity by way of jointure, "in manner thereinafter expressed," the husband demised certain real estate to trustees for a long term of years, upon the trusts thereinafter declared, and then covenanted that his heirs, executors, administrators

or assigns, should pay the jointure to his wife surviving him, upon certain specified days; and the covenant was followed by a declaration that the demised lands were to be held upon trust for the settlor until some default in making any of the payments of the jointure; and in case of non-payment of any part for forty days next after any day of payment, then upon trust to secure the same. Held, that, as between the real and personal representatives of the settlor, the land was the primary fund for payment of the jointure, because the jointure was not in satisfaction of any debt due from the settlor at the time of executing the settlement, nor had his personal estate been augmented by any consideration given for it; and therefore the presumption was that a primary charge upon the land was intended; and that presumption was not rebutted by anything in the recitals, or in the form of the deed of settlement.

By an indenture, dated the 31st of January 1833, and made between William Knapman of the first part, Sarah Loosemore of the second part, and Samuel Robert Topping and Robert Loosemore of the third part, after reciting that a marriage had been agreed upon, and was intended shortly to be solemnised between the said William Knapman and Sarah Loosemore, and reciting the title of William Knapman to certain real estates, and that, on the treaty for the said intended marriage, it was agreed that the said William Knapman should secure to the said Sarah Loosemore, during the joint lives of herself and him, the said William Knapman, an annuity or yearly sum of £50 for her separate use by way of pin-money, and also during the life of her, the said Sarah Loosemore, in case she should survive him, the said William Knapman, an annuity or yearly sum of £200, by way of jointure and in bar of dower in manner thereinafter expressed: It is witnessed that, in pursuance of the said agreement, and in consideration of the said intended marriage, and pursuant to and by force and virtue and in exercise and execution of the several powers and authorities (therein referred to), and of every or any other power or authority in anywise enabling him in this behalf-he, the said William Knapman, with the privity of the said Sarah Loosemore, his intended wife (testified by her being a party to and executing the settlement in manner therein mention-[124]-ed), appointed that the several freehold messuages or tenements and hereditaments thereinafter described, with the appurtenances, should thenceforth go, remain and be to the use of the said Samuel Robert Topping and Robert Loosemore, their executors, administrators and assigns, for and during and unto the full end and term of 500 years, fully to be complete and ended, without impeachment of waste. Nevertheless, upon and for the trusts, intents and purposes, and with, under and subject to the powers, provisoes, agreements and declarations thereinafter declared and contained of and concerning the same. And it is further witnessed that, in further pursuance of the said agreement, and for the consideration aforesaid, and for the nominal consideration therein mentioned, the said William Knapman, with the privity of the said Sarah Loosemore, testified as aforesaid, and by way of further assurance only, granted and demised unto the said Samuel Robert Topping and Robert Loosemore, their executors, administrators and assigns, the said hereditaments (therein described), to hold the same, with the appurtenances, unto the said Samuel Robert Topping and Robert Loosemore, their executors, administrators and assigns, thenceforth for and during and unto the full end and term of 500 years fully to be complete and ended, without impeachment of waste. Nevertheless, upon and for the trusts, intents and purposes, and with, under and subject to the powers, provisoes, agreements and declarations thereinafter declared and contained of and concerning the same. And it is further witnessed that, in further pursuance of the said agreement, and for the considerations aforesaid, the said William Knapman, with the privity, &c., of the said Sarah Loosemore, testified as aforesaid, demised unto the said Samuel Robert Topping and Robert Loosemore, their executors, administrators and assigns (certain leaseholds for long terms of years), to hold the same unto the said Samuel Robert Topping and Robert Loosemore, their [125] executors, administrators and assigns, from thenceforth for and during all the remainder of the said terms, except only the last ten days thereof, at the yearly rent of a peppercorn, if the same should be lawfully demanded. Nevertheless, upon and for the trusts, intents and purposes, and with, under and subject to the powers, pro

visoes, declarations and agreements thereinafter declared and contained of and concerning the same. And the said William Knapman did thereby, for himself, his heirs, executors and administrators, covenant, promise and agree, with and to the said Samuel Robert Topping and Robert Loosemore, their executors, administrators and assigns, in manner following; that is to say (amongst other things), that in case the said intended marriage should take effect, and the said William Knapman should depart this life in the lifetime of the said Sarah Loosemore, his intended wife, then, and in such case, the heirs, appointees, executors, administrators or assigns of him, the said William Knapman, should and would, from and after such his decease, during the life of the said Sarah Loosemore, his intended wife, well and truly pay, or cause to be paid, unto her, the said Sarah Loosemore, and her assigns, the yearly sum of £200, of lawful money as aforesaid, by four equal quarterly payments, on the 25th day of March, the 24th day of June, the 29th day of September, and the 25th day of December in every year, without any deduction or abatement thereout on any account whatever, the first of such quarterly payments to be made on such of the said lastmentioned days of payment as should first happen after the decease of the said William Knapman, if the said Sarah Loosemore should on that day be living. And, as well, as to and concerning the said several freehold messuages or tenements, hereditaments and premises, so thereby appointed and demised to the said Samuel Robert Topping and Robert Loosemore, their executors, administrators and as-[126]-signs, with the appurtenances, during the said term of 500 years, as therein before mentioned; as also as to and concerning the several leasehold pieces or parcels of ground, messuages or tenements and premises, so thereby demised unto the said Samuel Robert Topping and Robert Loosemore, their executors, administrators and assigns, with the appurtenances, for the respective residues of the said terms of years save the last ten days thereof respectively, as thereinbefore mentioned: it was thereby agreed and declared, between and by the parties thereto, that the said Samuel Robert Topping and Robert Loosemore, their executors, administrators and assigns, should stand and be possessed of and interested in the same several freehold and leasehold hereditaments and premises respectively, upon and for the trusts, intents and purposes, and with, under, and for the trusts, intents and purposes, and with, under and subject to the powers, provisoes, declarations and agreements thereinafter declared and contained of and concerning the same; that is to say, upon trust to permit and suffer the said William Knapman, his heirs, appointees, executors, administrators and assigns respectively, to receive and take the rents, issues and profits of the said several freehold and leasehold hereditaments and premises, with the appurtenances, to and for his and their own absolute use and benefit, until some default should happen to be made of or in the said annual sum of £50 or £200 (as the case might be), or some part thereof respectively, at or on the days or times and in the manner therein before appointed for the payment thereof respectively; and in case the said annual sum of £50 or £200 (as the case might be), or any part thereof respectively, should happen to be behind or unpaid by the space of forty days next after the said days or times of payment thereof, then upon further trust, for better securing to the said Sarah Loosemore, or such her appointees and assigns as aforesaid, the payments of the said several annual sums of £50 and £200 (as the case might [127] be); and for that purpose, upon trust that they, the said Samuel Robert Topping and Robert Loosemore, or the survivor of them, or the executors, administrators or assigns of such survivor, should from time to time, by and out of the rents, issues and profits of the several freehold and leasehold hereditaments and premises, by demising, leasing, selling or mortgaging the same premises, or any of them, or any part or parts thereof respectively, for all or any part of the said term of 500 years, as respects the said hereditaments therein comprised; and as to the said leasehold premises, for all or any part of the then residue of the said several terms of years, save and except the last ten days thereof respectively, or either of them, or by all or any of the said ways, or by any other ways or means, levy and raise such sum and sums of money as should be sufficient from time to time to pay and satisfy the said yearly sum of £50 or £200 (as the case might be), or so much thereof as should from time to time happen to be in arrear and unpaid, together with all loss, costs, charges, damages and expenses, which the said Sarah Lossemore, or such her appointees or assigns as aforesaid, or the said Samuel Robert Topping and Robert Loosemore, or the survivor of them, his