it was not intended that the same persons should take the share of the deceased sister, as would take the residuary estate or, rather, that, under the clause in question, the gift is not limited to the same persons, who take the residuary estate. It is obvious, however, that the same objection must prevail against the construction that, to give it effect, we must strike out the words "to become part of the residue."

I am, of course, greatly influenced in the construction of the will by what I conceive to have been the general intention of the testator as gathered from the whole instrument, and by the impossibility of giving effect to Mrs. Symonds' contention without striking out clear and positive words in the will without any necessity for doing so.

I have not referred to any of the authorities cited, as they afford little assistance in determing the construction which practically must, in such cases, be decided on the particular effect of the language used, guided by the general rules of interpretation. I might, however, refer to In re Palmer (1893) 3 Ch., 369, to the views of LINDLEY, M. R., and the other judges as to the rules which should govern in such cases.

As the proceeding was instituted by the executors for their guidance there will be no order as to costs.

1905, April 28. W. B. A. Ritchie, K. C. and T. R. Robertson in support of appeal.

J. A. McDonald contra.

1905, Sept. 5th. RUSSELL, J. delivered the judgment of the court.

two sons.

The deceased, A. K. MacKinlay, left two daughters and To the sons he left his business and the residue of his estate, after providing for his wife during her life, and setting apart $30,000 to be invested after her death for his two daughters, in equal parts. One of these daughters, Ella Louise, is dead, leaving no issue, and the question is as to the disposition of her share. survives her, married, and with two children.

17-N. S. R. 3S.

Her sister

Her two

brothers also survive. Does her share go to her two brothers as part of the residue, or is it to be divided among the three surviving children of the testator? If the formner had been the testator's intention, he need have said nothing about the matter. Upon the death of Ella Louise her share would have fallen to the two brothers as part of the residue. What he says about the matter in this clause, which would have been entirely superfluous unless it was meant to say something different from the contention of the two brothers, is that in case of the death of either or both of his two daughters without issue, then their or her shares of his estate should become part of the residue thereof, and be divided equally among the survivors and the issue of any child who should then be deceased. When he is speaking of what is to happen to the property devised and bequeathed to his sons, he refers to them as sons, and when he contemplates the possibility of one of them being dead, he speaks of "either" of them who shall then be deceased, and of the "children" of such deceased son taking his parent's share. In the clause under consideration, if he had been thinking only of his sons as beneficiaries, he could easily have so referred to them, that is as sons, and if he had been thinking merely of the possibility of of one of them being dead, and of what was to be done in that event, he would have adhered to the same expressions. He would have said that in case of the death of either or both of my said daughters without issue, then her or their shares of my estate to become part of the residue thereof, and be divided equally among my two sons. If he had contemplated the possibility of one of them being dead he would have spoken of the "survivor," not the "survivors," and the "issue," or more probably the "children," which is the expression he uses when speaking of the sons' shares-of "either" of the sons who shall then have deceased. He uses the term "son" in the clause relating to the sons, because it is correct and exact. He uses the term "child" in the clause in question, because he must use a term

which is appropriate to a clause including a daughter and one or more sons. He uses the word "either" in the clause relating to the sons because it is exact. In the clause in question he uses the term "any," because he has in contemplation a class which may contain more than two. And how could he possibly use the term “survivors ” if he were thinking only of the two boys? It is to be divided equally among the survivors and the issue of any child who may then be deceased. This we are asked to say applies only and wholly to the two sons. Very well. One of them must be dead before there can be any division among his issue. Who then are the survivors? There can only be one survivor. If it be suggested that he used the word "survivors," meaning by this term the two sons, and contemplating the division between them as such survivors, and that his mind then glanced at the possibility of one of them being dead, and the necessity for a division among the issue of such deceased son, I must say that the expression seems to me to be a most unlikely one to have been used to express this idea. He would surely have directed it to be divided equally between his two sons, or the survivor of them and the issue of the son deceased. The term "survivors" inevitably suggests the notion of a group of persons, one or more of whom are dead, while others are living. If the group that the testator had in mind included only the two sons, there could be only one survivor. It cannot be made large enough to admit of survivors without including the surviving daughter.

All these considerations seem to me to point to the conclusion that the surviving daughter is to share with the sons in the fund bequeathed to the deceased daughter, and this result is surely one that equity would contemplate with favor. But then there is the difficulty that the testator has said that this share of the deceased sister must fall into the residue, and he has told us in the next follow

ing clause what is to become of the residue, and Mrs. Symonds has no interest in it. It belongs to the two sons. I do not realize the inevitableness of this conclusion. This sum is to become part of the residue, it is true, but this particular portion of the residue is to be divided among the surviving children of the testator and the issue of any deceased child, and it is only "subject to" this disposition as to this portion of the residue that all the "rest and residue" of the estate is to go to the two sons exclusively. It is not very scientific, certainly. It cannot be made scientific whichever way it is fixed.

The learned judge has been largely influenced by the · fact that he finds the shares of the daughters carefully tied up, and this is not tied up at all, from which the inference is drawn that it must have been intended for the

sons. I think this is a fallacy, and perhaps, it begs the question, for it is open to the other side to say that we do not find the daughters' money tied up,-not all of it,not this contingent share. Fifteen thousand dollars for each is carefully tied up, or rather is meant to be carefully tied up, which I grant is the same thing so far as regards its effect upon the argument, as if it had been tied up ever so carefully, and the testator may well have thought that having made this adequate provision for their needs and placed it beyond peradventure, as he supposed, by making it separate estate, he might well allow a greater latitude in reference to this contingent share which might never be realized, and which moreover would, in no probable event, be a very large sum.

The case that was cited, re Palmer (1893) 3 Ch., affords no assistance. The case there was between residue and intestacy. It has no bearing on a conflict between two parties both claiming under the will.

GRAHAM, E. J. and FRASER, J. concurred.

Appeal allowed.

MCDONALD V. MCDONALD.

Before TOWNSHEND, J., GRAHAM, E. J., and FRASER and RUSSELL, JJ.

Registration of deeds-Unrecorded deed-Notice-Evidence-Certified

copy.

On May 8th, 1888, N. M. made a deed of a piece of land to her son H. M. and about three years later made a second deed of the same piece of land to H. The grantee under the latter deed placed his deed on record about a month earlier than the deed to H. M. under which plaintiff claimed.

Held, that bona fide purchasers for value claiming under H. were not affected with constructive notice of the prior deed to H. M., although that deed had, in the meantime, been registered, and there was evidence that H. personally, at the time he took his deed, had knowledge of its existence.

Held, also that evidence that plaintiff, claiming under the unrecorded deed took two years' hay off the property and arranged with F., who lived on an adjoining property, to look after it for him, and that F. cut logs and pastured cattle for a time as compensation for doing so, was not sufficient to support a disseisin, there being evidence on the other hand to show that the land was not fenced, and was spoken of as the "commons," and that others pastured cattle there, and that subsequent purchasers obtained timber from it.

Held, also, that the trial judge was in error in rejecting a copy of a deed from the registry office tendered on behalf of defendant, and which purported to have been executed by the grantor under whom both parties claimed.

It is not necessary, in order to procure the admission in evidence of a certified copy of a registered deed from the books of the registry office, to also prove the execution of the original deed, the statute respecting the registration of deeds requiring proof on oath of the execution of the deed before it is admitted to registry.

Appeal from the judgment of WEATHERBE, C. J. in favor of plaintiff in an action claiming damages for breaking and entering plaintiff's close, and cutting down and hauling away trees.

The judgment appealed from was as follows:

On the 8th day of May, 1888, a deed was made of the property in question by one Nancy McKenzie to H. D. B. McKenzie, her grandson. He had previously received a deed of the same property from his grandfather in his lifetime, on the 26th March, 1883, which was registered in 1885.

On the 26th May, 1891, H. D. B. McKenzie conveyed the same property by deed to the plaintiff in this action