the codicil intended for her sister, and the sister had executed the codicil intended for the deceased.

Although two solicitors and an articled clerk were present when the documents were executed, no one appeared to have noticed the mistake. The solicitors who then acted for the deceased and her sister, and who had been their solicitors for many years, were not the solicitors now retained and instructing counsel.

THE COURT was moved to grant probate of the will and codicil, omitting from the latter the names of the testatrix and her sister wherever mentioned therein.

The surviving sister, who was the residuary legatee under the will of the deceased, consented to the motion.

Sir GORELL BARNES, President. It is unfortunate that such a difficulty as this has arisen, especially having regard to the fact that a solicitor's clerk witnessed the document. But it is quite clear that this lady, though her signature is on the document, never meant to sign. this particular codicil at all. She meant to sign a totally different document. It may be that this document contains provisions corresponding with what she wished to sign, because the two documents were crosscodicils by two sisters. But, as a matter of fact, the deceased in signing her name to this codicil never intended to do that at all, but intended to put her signature to another document; and, unless some authority can be produced to me to shew that in such a case the document she did not intend to sign is to be treated as the one she did intend to sign, I do not mean to support it. In my opinion this codicil cannot stand. The will, of course, can be proved in the ordinary way. The lady who takes the chief benefit under the will, and whose interest would be diminished somewhat by the codicil, might very well carry out her deceased sister's wishes by allowing the money which. the deceased wished to dispose of by the codicil to be paid out before taking her interest under the will. She is, I understand, executrix under the will; and, though she does not want the inconvenience of taking probate, she can do' so and appoint somebody to manage the matter for her.47

In re KELSEY. WOOLLEY v. KELSEY. KELSEY v. KELSEY. (Supreme Court of Judicature, Chancery Division. [1905] 2 Ch. 465.) SWINFEN EADY, J. Erroneous recital [of advancement] cases may be divided into two classes.

In class 1 the testator by apt words directs a legatee to bring a particular sum into hotchpot. He may recite erroneously that a particular sum has been advanced, and direct the legatee to bring that sum,

47 See In the Goods of Hunt, L. R. 3 P. & D. 250 (1875); Nelson v. McDonald, 61 Hun, 406, 16 N. Y. Supp. 273 (1891).

48 The statement of facts is omitted.

or the sum "hereinbefore recited to have been advanced," into hotchpot, or he may by other appropriate language shew an intention that the legatee shall absolutely and in any event bring the sum mentioned into hotchpot in other words, that the legatee shall only take upon the footing of bringing that particular sum into account, and only receiving the balance payable to him on that footing.

In class 2 the testator recites the debt owing from the legatee—again he may recite it erroneously-and then directs the debt, "or so much thereof as shall remain unpaid" at the testator's death or the time of distribution, to be deducted and brought into account. In cases of this class the testator really intends that there shall be brought into account the debt or balance thereof which is actually owing at the time of death or distribution.

The question is within which class the present case falls. In my judgment the present case more nearly resembles In re Taylor's Estate, 22 Ch. D. 495, 500, a decision of the Court of Appeal, and properly falls within class 2, and Stanley is only bound to bring into account the sum really owing. The testator upon the face of the will shows an intention to benefit Stanley. After reciting that his son Stanley is indebted to him in the sum of £5,000, and that he is desirous of reducing the amount in which Stanley is so indebted to him to £3,000, the testator forgives him £2,000, part of the £5,000, leaving £3,000 remaining owing. Now it appears in fact that no £5,000 had been advanced or was owing at all, but that the only sum advanced by the testator to Stanley was a sum of £80 paid for an indenture of apprenticeship when he was a lad of fifteen. It is suggested that the testator intended advancing the £5,000 to set up Stanley in business. That is only Stanley's account, and the solicitor who drew the will has no recollection of telling Stanley anything of the sort. But be that as it may, my opinion is that according to the true construction of this will the testator only intended Stanley to bring]] into account so much, not exceeding £3,000, of the sum which he owed the testator and as remained unpaid at the date of distribution. In the present case that is £80.

It was contended that there was some conflict between In re Aird's Estate, 12 Ch. D. 291, and the decision of the Court of Appeal in In re Taylor's Estate, 22 Ch. D. 495, 500, and that in the later case of In re Wood, 32 Ch. D. 517, North, J., followed the earlier case of In re Aird's Estate. But In re Wood was merely an instance of class 1, the legatee being directed to bring into hotchpot the sum "hereinbefore recited to have been advanced." If, however, the cases cannot stand together, the decision of the Court of Appeal must prevail. The son is, therefore, only bound to bring £80 into account."

49 In accord as to class 1 are McAlister v. Butterfield, 31 Ind. 25 (1869); In re Alexander's Estate, 206 Pa. 47, 55 Atl. 797 (1903); Younce v. Flory, 77 Ohio St. 71, 83 N. E. 305 (1907); Dodson v. Fulk, 147 N. C. 530, 61 S. E. 383 (1908); In re Lear's Estate (Mo. App.) 124 S. W. 592 (1910). In In re Alex

In re SHARP.

MADDISON v. GILL.

(Supreme Court of Judicature. Court of Appeal. [1908] 2 Ch. 190.) Appeal from the decision of Joyce, J. [1908] 1 Ch. 372.

COZENS-HARDY, M. R.50 In my opinion the decision of Joyce, J., in this case was perfectly right. The testator has made a will which certainly has the merit of brevity. He gave, after certain legacies, his residuary estate upon trust for John Gill, Edgar Gill, the three children of Sarah Mitchell, and here I read in the words of the codicil, "and the six children now living of Samuel Frederick Okey by his first wife in equal shares as tenants in common."

The facts are that there were at one time six children of Samuel Frederick Okey by his first wife, but at the date of the will, and of the death, only one of those six was living, and the question is whether the residue is divisible between John Gill, Edgar Gill, the children of Sarah, and this one child of Samuel Frederick Okey, or, in other words, whether it is divisible in sixths or whether it is divisible in elevenths. In my opinion it is divisible in sixths.

One view which may be taken-and I am not sure that it is not enough to dispose of the whole case-is that, reading the codicil into the will, it is a gift to John Gill and Edgar Gill, the three children of Sarah Mitchell, and such of the six children as are now living of Samuel Frederick Okey by his first wife. Of course, if that be the true construction, all difficulty is got over, I am disposed to think that is the true construction. If, however, that is not the true construction, then it seems to me that by a long series of authorities, which are absolutely binding upon this court, it is a plain case where you have a governing intention to benefit children-not, I agree, forming a class in the sense in which that word is frequently used in legal language, but children described as being the children of a certain personcoupled with a mistake in the number of those children; and under those circumstances the courts have held, and as it seems to me in accordance with common sense, that the dominant intention to benefit the members so described must have effect given to it by rejecting the inaccurate enumeration. Applying that rule, I find that the dominant intention was to benefit the children of Samuel Frederick Okey by his first wife. There was a mistake in the number then living, and you

ander's Estate, supra, the testator charged as an advancement against two sons what was due from one only, but what it seemed he was not irrational in thinking it fair to charge against both, and the court sustained the charge. Compare In re Bresler's Estate 155 Mich. 567, 119 N. W. 1104 (1909), where an advancement to the husband of testator's daughter was charged against the daughter as money she was "owing." so charged in Is books. 50 The statement of facts is omitted, as are the opinions of Buckley, L. J., and Kennedy, L. J.

must treat it simply as a gift to the children or child living at the date of the will, and at the date of the death.

Now the authorities really seem to me to govern this case. I take one of the earliest cases-I think it is the case of Sleech v. Thorington, 2 Ves. Sr. 560. There a capital sum was given to "the two servants that shall live with me at the time of my death" in equal shares. The testatrix had three servants, and it was held that the legacy was divisible in equal thirds. In that case it is quite true that no extră burden was thrown upon the residuary legatee, and it is also quite true that in the absence of extrinsic evidence, which scarcely could have been admissible in a case like that, the whole legacy might have been void for uncertainty but for the application of this rule. But Sir Thomas Clarke there held, following a prior decision of, I think, Lord Hardwicke, that when you found that the dominant idea was "servants living with me at the date of my death," you disregard the number two and you take the number three. A problem was put to Mr. Upjohn in the course of the argument: What would have been the result there if the gift had been "to my coachman my footman and my two domestic servants living with me at the date of my death," and supposing there had been three instead of two? I cannot bring myself to doubt that precisely the same result must have followed, and that the reasoning of Sir Thomas Clarke's decision in no way depends upon the fact that the legacy was given solely to the domestic servants living at the death, but the consequence must be exactly the same if they had been colegatees with other persons named as "my coachman and my groom."

I do not propose to go through the subsequent authorities. It is scarcely necessary to refer to Garvey v. Hibbert, 19 Ves. 125, although that was a very strong case and a very leading case. That was a case where a legacy of £600 was given to each of the three children of Dr. -Duval. Dr. Duval had four, and it was held that the fourth was entitled also to a legacy of £600, the result being, of course, that £2,400, was taken out of the residuary estate, instead of only £1,800. I am content to take the principle, for it is a principle, laid down by the courts in the last two centuries, from the judgment of the Court of Appeal in In re Stephenson, [1897] 1 Ch. 75, which, somewhat singularly, Mr. Upjohn seems to regard as an authority in his favor. I do not know where I could find more accurately or more aptly stated the nature and the limitation of the rule. I take first of all the passage from the judgment of Lord Russell of Killowen, [1897] 1 Ch. 81: "The proposition must be limited to this: That, where the court, as a matter of construction, arrives at the conclusion that a particular class of persons"-again not using the word "class" in a technical sense, but a particular description of persons-"is to be benefited according to the intention of the testator, if there has been an inaccurate enumeration of the persons composing that class, the court will reject the COST. WILLS-6

enumeration;" and Lindley, L. J., in the same case, [1897] 1 Ch. 83, says: "If the court comes to the conclusion, from a study of the will, that the testator's real intention was to benefit the whole of a class, the court should not and will not defeat that intention because the testator has made a mistake in the number he has attributed to that class. The court rejects an inaccurate enumeration." That is what the learned judge has done in the present case; that is what, if it be necessary to consider the cases at all on this will, I propose to do here. I think for the reasons I have given the decision of the learned judge was perfectly right, and that the residue is not divisible in elevenths, but is divisible in sixths.