tween will is much stronger in favour of revocation. At any rate,

and codicil,

ment is in

favour of

revoca

the argu- where a testator by his will distinguishes between specific legacies and residue and by a codicil gives all his personal property, the codicil revokes the specific legacies as well as the residuary gift. Kermode v. Macdonald, L. R. 1 Eq 457; 3 Ch. 584.

tion.

CHAPTER XLVI.

ALTERING WORDS.-UNCERTAINTY.

581

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.

not be

into "and" in a condition precedent.

When there is a gift to a person upon one or other of "Or" will two events, "or" will not be read "and," as the result changed 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" "Nor" will mean or not," if the result is to vest the gift in either may mean 66 or not." of two events. Mackenzie v. King, 12 Jur. 787; 17 L. J. Ch. 448.

or

upon the context.

On the other hand, in some cases on the context of "And" changed the will "and" has been read "or," so as to vest a gift into 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 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. Hartv. Tulk, 2 D. M. & G. 300. See Surtees v. Hopkinson, 4 Eq. 98; Smith v. Crabtree, 6 Ch. D. 591.

Limitation

to the

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

Limitation

to daughters sup

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.

So, too, where there was a limitation in a settlement to the children of the marriage who being a son or sons plied in a should attain twenty-one years; and if there should be settle- but one such child, the whole to be in trust for such one

marriage

ment.

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.

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.

Anon. 1 And. 33.

"without

prior estate

So when there is a gift to A. in tail, and if he die over, The words the words "without issue" will be supplied in the gift over issue supplied, to satisfy the implied contingency. so as not And in a similar case, where there were devises to to divest a several in tail and the interest of one of the tenants in tail. 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.

Middleton.

The extreme limit to which the Court will go in Abbott v. 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.

A bequest of indefinite

amount is void.

Gift of a

sum not

a certain amount.

UNCERTAINTY.

If it is impossible to ascertain the subject-matter or the objects of a gift, it will be void for uncertainty.

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

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

Gift of the

Upon similar principles the gift of the rest of a fund, fund when if the rest cannot be ascertained, is void; as in a devise of

rest of a

the rest cannot be

ascer

tained.

such houses 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.