Chap. XLVIII.

"Or" will not be changed into "and" in a condition precedent.

"Nor" may

mean or

not."

"And" changed into

or upon the context.

"Fourth"

"Fifth."

CHAPTER XLVIII.

ALTERING WORDS-UNCERTAINTY.

CHANGING WORDS.

THE Court will change a word when it appears from the context of the will that the word was incorrectly employed by the testator in place of some other word.

Several cases in which "or" has been changed into "and," and vice versa, have already been mentioned in the discussion of the construction of gifts over. It remains to mention some cases in which a similar change has been made in direct gifts. When there is a gift to a person upon one or other of two events, "or" will not be read "and," as the result would be to make the conditions cumulative instead of alternative. Hawksworth v. Hawksworth, 27 B. 1.

And it seems in a condition precedent to vesting "nor" will mean or not," if the result is to vest the gift in either of two events. Mackenzie v. King, 12 Jur. 787; 17 L. J. Ch. 448.

On the other hand, in some cases on the context of the will, "and" has been read "or," so as to vest a gift in alternative in lieu of cumulative events. Hawes v. Hawes, 1 Ves. Sen. 13; Jackson v. Jackson, 1 Ves. Sen. 216: Stapleton v. Stapleton, 2 Sim. N. S. 212, with which compare Malmesbury v. Malmesbury, 31 B. 407; Maynard v. Wright, 26 B. 285.

Upon the same principle the Court has changed the word changed into fourth into fifth, where it was clear upon the construction of the whole will that the testator intended to refer to the fifth and not to the fourth schedule. Hart v. Tulk, 2 D. M. & G. 300. See Surtees v. Hopkinson, 4 Eq. 98; Smith v. Crabtree, 6 Ch. D. 591; In re Northen's Estate; Salt v. Pym, 28 Ch. D. 153.

Chap.

XLVIII,

SUPPLYING WORDS.

With regard to supplying words in a will the rule seems to be that where the will as it stands is clearly inconsistent, so that the choice lies between rejecting some portion of it or supplying some word, while at the same time the latter course will make the will consistent, the Court will be justified in making the necessary addition. See Hope v. Potter, 3 K. & J. 206; In re Morony, 1 L. R. Ir. 483.

Thus, in a devise to A. for life, remainder "to the first son of A. severally and successively in tail male," the devise will be construed as to the first and other sons of A. Parker v. Tootal, 11 H. L. 143. See Newburgh v. Newburgh, Lord St. Leonards' Law of Property, 367.

Under a bequest in trust for the testator's widow for her life in trust for his children, followed by powers of maintenance and advancement after the widow's death, with an ultimate gift over after her death in default of children attaining vested interests, the Court supplied the words "and after her death" after the words "for her life." Greenwood v. Greenwood, 5 Ch. D. 954.

Limitation to

the second and

other sons supplied.

So, too, where there was a limitation in a settlement to the Limitation to children of the marriage who being a son or sons should attain supplied in a daughters twenty-one years; and if there should be but one such child, marriage the whole to be in trust for such one child, his or her executors and administrators, and there were powers of applying the presumptive share of every such child for his or her maintenance until his or her share should become vested, the Court held daughters to be included in the gifts. In re Daniel's Settlement Trusts, 1 Ch. D. 375.

So, where property was given upon trust for all the children of A. "who being a son or sons shall live to attain twenty-one years or being a daughter or daughters shall marry under that age," it was held that the gift to daughters vested on their attaining twenty-one. Re Hunt; Davies v. Hetherington,

62 L. T. 753.

Chap. XLVIII.

The words

46

In a somewhat similar case, where there were limitations to daughters for life with remainder to their children, and the limitation to the children of one daughter was omitted, it was supplied upon the general intention of the will. In re Redfern; Redfern v. Bryning, 6 Ch. D. 133; see Re Smith; Bashford v. Chaplin, 45 L. T. N. S. 246; Mellor v. Daintree, 33 Ch. D.

198.

So when there is a gift to A. in tail, and if he die over, the words "without issue" will be supplied in the gift over to not to divest satisfy the implied contingency. Anon., 1 And. 33.

"" without issue" supplied, so as

a prior estate tail.

Abbott v. Middleton.

And in a similar case, where there were devises to several in tail and the interest of one of the tenants in tail was given over to another, "if he died living Alice," the words "without issue were supplied, there being a gift over of the whole upon death of all the tenants in tail without issue. Spalding v. Spalding, Cro. Car. 185.

The extreme limit to which the Court will go in supplying words in such cases is probably marked by Abbott v. Middleton, 7 H. L. 68. The gift there was of personalty to the testator's wife for life and then to his son for life with remainder to the son's children and "in case of my son dying before his mother" over. The son died, leaving a child, and the House of Lords held (diss. Lords Cranworth and Wensleydale) that the words "without children" must be supplied in the gift over, so as to leave the child of A. in possession of the property.

However, if the testator expressly distinguishes death in the lifetime of a tenant for life from death without issue; if, for instance, the gift over is either in the event of death before the tenant in tail or in the event of death without issue at any time, the gift over must be literally construed. Eastwood v. Lockwood, L. R. 3 Eq. 487.

Where a testator bequeathed the remainder of his property "and any other property of which I may die possessed, and I nominate my son my executor," it was held that the residue was undisposed of. Driver v. Driver, 43 L. J. Ch. 279.

UNCERTAINTY.

Chap.

XLVIII.

If it is impossible to ascertain the subject-matter or the objects of a gift, it will be void for uncertainty. See Asten v. Asten, (1894) 3 Ch. 260.

of indefinite amount is

Thus, a gift of some of my linen, not saying how much, or of A bequest a handsome gratuity, is void. Peck v. Halsey, 2 P. W. 387; Jubber v. Jubber, 9 Sim. 503. See Jones d. Henry v. Hancock, void. 4 Dow, 145.

On the other hand, if the testator supplies a measure of the bequest, the Court will ascertain how much ought to be expended; thus, a gift of a sum of money to an executor for his trouble, or even of a house or garden to be built at the expense of his executors, is good, and the Court will fix the amount. Jackson v. Hamilton, 3 J. & Lat. 702; Edwards v. Jones, 35 B. 474. See Magistrates of Dundee v. Morris, 3 Macq. 134.

not exceeding amount,

a certain

A gift of 50l. or 100l., or of a sum not exceeding a certain Gift of a sum amount, will be construed in favour of the legatee as a gift of the larger sum. Seale v. Seale, 1 P. W. 290; Thompson v. Thompson, 1 Coll. 395; Cope v. Wilmot, 1 Coll. 396, n.; Gough v. Bult, 16 Sim. 45.

Upon similar principles the gift of the rest of a fund, if the Gift of the rest cannot be ascertained, is void; as in a devise of such houses rest of a fund as she shall select to A. and the others to B., where A. dies before the testator. Boyce v. Boyce, 16 Sim. 476; Jerningham v. Herbert, 4 Russ. 388.

For cases in which the objects of the gift were held to be so uncertain that the gift failed, see Buckley v. Buckley, 19 L. R. Ir. 544; Smithwick v. Hayden, 19 L. R. Ir. 490.

cannot be ascertained.

Chap. XLIX. Satisfaction of portions by legacies.

Satisfaction

arises between a gift and a liability to give.

Satisfaction

and ademption distinguished.

CHAPTER XLIX.

SATISFACTION AND ADEMPTION.

SATISFACTION.

WHEN a parent or a person in loco parentis has covenanted to pay a portion to a child and afterwards gives a legacy of the same or a larger amount to that child, the legacy is prima facie a satisfaction of the portion, and if the legacy is of smaller amount it is a satisfaction pro tanto. Warren v. Warren, 1 B. C. C. 305; 1 Cox, 41.

Declarations by the testator are admissible to rebut the presumption against double portions. In re Tussaud's Estate, 9 Ch. D. 363.

Satisfaction only arises between a gift and a prior liability to give and not between a sum actually settled and a subsequent gift by will or otherwise. Samuel v. Ward, 22 B. 347.

On the other hand, when there is a gift by will to a child, and the testator afterwards in his lifetime gives the child a sum of money, the bequest is adeemed pro tanto.

The difference between the two cases is, that in the former case the portion which the testator has covenanted to pay can only be satisfied by the bequest with the consent of the objects of the covenant; in the latter case the gift by will is revocable and the testator may substitute for it any form of gift he pleases.

Again, in the former case the question whether the gift by will was intended to be a satisfaction of the covenant is a question of testamentary intention; in the latter the question is as to the effect of an act subsequent to the will, and not as to any intention manifested by the will itself.