[IN CHAMBERS.] KINNAIRD ». ALLEN. Will-Construction-Gift to person described as "son" of testator's brother— Extrinsic evidence as to testator's intention. A testator bequeathed his residuary estate upon trust to pay to his brother the income for the maintenance and education of "his son and daughter who are now living until his youngest child who is now living shall attain the age of twenty-one years,” and after that period he directed his trustee to divide his estate into three equal shares between his brother and “his said son and daughter." The brother had a daughter but never had a son. There was, however, a boy aged four who was the illegitimate son of the step-daughter of the brother of the testator. This boy was brought up in the brother's household as one of his family, and might have been supposed to be his son by any acquaintance not informed of the facts as to parentage. The testator visited his brother's house and observed the children, and there was nothing to suggest that he knew anything as to the real parentage of the boy. Held, that the boy was entitled to his share of the legacy under the will. ORIGINATING SUMMONS. This was an originating summons taken out by Allan Kinnaird, the executor appointed by the will of Richard Allen, deceased, for the determination of the following questions:(1.) In the events which have happened, for whose maintenance should the income of the testator's estate be applied under the trust in that behalf contained in the will of Richard Allen. (2) In the events which have happened, what person or persons are entitled to share in the final distribution of the estate of the said testator under the direction in that behalf contained in the will of the said deceased, and in what proportion? (3.) Did the testator die intestate as to any, and what part of his property? The terms of the will, so far as they are material to the report, are set out in the judgment. In addition to the facts set out in the judgment the plaintiff in his affidavit stated that the defendant James Allen, the brother of the testator, at the date of the will was and is still a widower, and had only one child, a daughter named Louisa Allen, who resided with the defendant James Allen, and is an infant aged about ten years. There was also a boy aged four, who was the illegitimate child of a step-daughter of James Allen, and this child resided with and was brought up as a member of the household of James V.L.R., Vol. XXIV. 00 1898 December 12. A'Beckett, J 1898 KINNAIRD υ. ALLEN. A'Beckett, J. Allen. The testator on several occasions while conversing with the plaintiff stated that his brother had two children, a girl and a boy, and just prior to his death reiterated this statement, and said that he did not know the names of the children, and that he had only seen them on a few occasions at his brother's residence when visiting his brother; that he had said that he desired to leave the income of his property to his brother's two children, and eventually that the property should be divided between his brother and his two children. James Allen, the brother of the testator, said that the boy was always called by him William Harris, and that the testator had visited his house on only three occasions after the birth of the boy and had never spoken to the boy or displayed any affection towards him. Other affidavits were filed to the effect set out in the judgment. Wasley for the plaintiff. Cussen for the defendant James Allen-The testator no doubt shows an intention to give property to his brother's son who is now living. The gift is not to the boy by specific description as an individual in whom the testator took an interest, but it is a gift to him merely as the son of the testator's brother. Extrinsic evidence has been allowed in certain cases: In re Harrison (a); In re Haseldine (b). One of the most important things is the knowledge of the testator, and if the testator knew that this boy was not the son of his brother, then there might be a strong argument raised in his favour according to those cases. The fact here is that the testator did not know that the boy was not the son. There is no evidence here to show that the testator meant to benefit this boy-the intention was to benefit the son of his brother, and there is no one who fulfils the latter description. Where there is no name mentioned and the person claiming does not fulfil the description the gift fails: Dorin v. Dorin (c). Counsel referred to Wilkinson v. Joughin (d). (a) [1894] 1 Ch. 561. (b) [1886] 31 Ch. D., p. 511. (c) [1875] L.R. 7 H.L. 568. (d) [1866] L.R. 2 Eq. 319. Pigott for the defendant Louisa Allen adopted the arguments of Mr. Cussen. Power for the defendant William Harris-The principle is that where a legatee is accurately named or described the Court will gather from surrounding circumstances who was meant by the testator. There is no principle that when a legacy is given in a certain character that the legacy fails if the legatee does not occupy that position. The facts here show that the boy was undoubtedly intended to be benefited. Counsel referred to the following cases -In re Boddington (e); Schloss v. Stiebel (f); In re Brake (g); Feltham's Trusts (h); Lee v. Pain (i). Cussen in reply referred to In re Boddington (k). Cur. adv. vult. A'BECKETT, J., read the following judgment:-The testator in this case gives his residuary estate upon trust to pay to his brother the income for the maintenance and education of "his son and daughter who are now living until his youngest child who is now living shall attain the age of twenty-one years,”, and after that period he directs his trustee to divide his estate into three equal shares between his brother and "his said son and daughter." The brother has a daughter aged ten, but never had a son. There was, however, a boy aged four, who was the illegitimate child of his step-daughter, and was brought up in his household as one of his family, and might have been supposed to be his son by any acquaintance not informed of the facts as to parentage. It appears by uncontradicted evidence that the testator visited his brother's house, and observed the children there while this state of things continued, and there is nothing to suggest that he knew anything which would have corrected the mistake into which he might naturally have fallen that the boy brought up in his brother's family was his brother's son. The rules as to the reception of evidence of (e) [1883] 22 Ch. D. 597. (f) [1833] 6 Sim. 1. (g) [1881] 6 P D. 217. (h) [1855] 1 K. & J. 528. (i) [1844] 4 Hare 201. (k) [1884] 25 Ch. D., p. 687. 1898 KINNAIRD V. ALLEN. A'Beckett, J. 1899 February 3. 1899 KINNAIRD v. ALLEN. A'Beckett, J. extrinsic circumstances stated in Wigram on Extrinsic Evidence, and acted upon in In re Haseldine (l), Forster v. Charter (m), and other cases, warrant my regarding these facts. It is only to this extent that I have felt myself at liberty to give weight to the affidavits, though they contain other statements directly pointing to the intention of the testator to benefit the child in question. I have to decide whether the words used can, under the circumstances, be held to sufficiently describe him. The words now living," carefully repeated, satisfy me that, in using the word "son," the testator had in his mind a specific individual. He did not intend to benefit anyone born after the date of the will. There was no one standing in any real or apparent relation of son to his brother except this boy. There was no one who could take under the gift if the boy the testator had seen could not, so that when he spoke of his brother's son now living he could have had no one but this child in his mind's eye. Though there is no description by name, and the only description is by reference to a relationship which did not in fact exist, the authorities warrant me in calling in aid the surrounding circumstances to determine whether the testator intended the words he used to describe a person known to him or a non-existent person whom he might have supposed to exist. I think he intended the former, and therefore I hold that the legacy is effectually given, though the description of the legatee is inaccurate. The case is of the same kind as those referred to in Williams on Executors, in the note to the text, which asserts that" where there is no doubt as to the person intended, the misdescription of character shall not frustrate the bequest. Thus a woman may take a legacy by the name of the wife of such a one although she be not a lawful wife if she be reputed or known by that name." Conjecture that the supposed relationship might have been the motive for the gift will not deprive the legatee, in the absence of fraud, of which there is here no suggestion: See Wilkinson v. Joughin (n). (2) 31 Ch. D., p. 511. (m) L.R. 7 E. & I. App. 364. (n) L. R. 2 Eq. 319. I answer the questions asked by the summons as follows: 1 and 2. The defendant William Harris takes under the words of the will, describing him as the son of James Allen, as to the right to maintenance and education out of income, and also as to the one-third share in corpus. 3. The testator did not die intestate as to any part of his property. I direct taxation of the costs of all parties appearing, those of the plaintiff as between solicitor and client, and payment out of residuary estate. [On 20th February 1899 an appeal by James Allen from this judgment was heard by the Full Court [WILLIAMS, HOLROYD, and HOOD, JJ.] and dismissed with costs.-ED.] Solicitors for plaintiff: Wisewould & Wisewould (for Solicitors for defendant Jas. Allen: Farmer & Turner. 1899 KINNAIRD v. ALLEN. A Beckett, J. W. H. M. [PRACTICE COURT.] IN RE THE AUSTRALIAN WIDOWS' FUND LIFE ASSURANCE SOCIETY LIMITED. The Companies Act 1896 (No. 1482), яs. 77, 78, 79, and 80-Power of company to alter objects or form of constitution-Confirmation of alteration by Court. In an application under sec. 80 of Act No. 1482 for the confirmation by the Court of alterations in the Memorandum of Association of a company, the Court will not sanction an alteration which has for its purpose merely the explaining or interpreting of existing articles. The Court is not bound to confirm every alteration passed by the company in conformity with the provisions of secs. 77 and 78 of Act No. 1482, but the Court has a discretion and should exercise such discretion in sanctioning only such alterations which will in a reasonably substantial way enable the company to attain the object set out in sec. 80. THIS was a petition on behalf of The Australian Widows' Fund Life Assurance Society Limited for the confirmation by the Court of various alterations in the Memorandum of Association. The alterations had been passed by special resolution of 1898 December 15. Hodges, J. |