death without issue I direct that it be realized upon and divided equally among my sister Ann Howe my brother Timothy Purcell of Dunedin New Zealand my sister Mary Dougharty in America (or if she be dead her children) and Sarah Dwyer of Seymour." He appointed Patrick Sullivan, Michael Howe, and Edward O'Callaghan as his executors. The executors, having proved the will, took out an originating summons against Sarah Dwyer and Timothy Purcell (on behalf of himself and all other persons entitled to the residuary real and personal estate of the said Philip Purcell, deceased), and in support of it swore an affidavit stating that neither at the time of making his will nor at any time up to his death was the testator seized or possessed of or entitled to any land being section 82 in Seymour, nor was there any section 82 in Seymour or in the parish of Seymour, but at the time of making his will and up to his death he was seized of an estate in fee simple in a block of land containing 82 acres 2 roods and 27 perches, being allotment 33, section 3, in the parish of Seymour, upon which a house was erected, and which was in the occupation of the defendant Sarah Dwyer at and long prior to the making of the will; and also in another block of land, containing 31 acres 1 rood 18 perches, being allotment 32, section 3, in the parish of Seymour, upon which no house was erected. The affidavit further stated that the will was drawn up by Dr. Boyes, one of the attesting witnesses thereto, and the instructions given by the testator in the presence of Patrick Sullivan with respect to the gift, the subject matter of the summons, were in substance and effect as follows:"The land that my sister, Sarah Dwyer, is living on now I leave to her in trust for life, and at her death to her issue, and if no issue to revert back to Ann Howe, Timothy Purcell, Mary Dougharty, and Sarah Dwyer.” The executors asked the opinion of the Court as to what persons were entitled to the land belonging to the testator at his death, being allotment 33, section 3, in the parish of Seymour. The defendant Sarah Dwyer also made an affidavit stating inter alia that she lived in the house on allotment 33, section 3, and that allotment 32, section 3, was vacant land adjoining the 1898 In re PURCELL. Hood, J. 1898 In re PURCELL. Hood, J. allotment on which she lived, and that the testator had no other land in the parish of Seymour. Hayes for the plaintiff. Agg, for the defendant Sarah Dwyer, proceeded to read the statements abovementioned from the affidavits, when Dawson, for the defendant Timothy Purcell, objected that no extrinsic evidence was admissible to show what land was intended to go to Sarah Dwyer. As the law requires wills to be in writing, parol evidence cannot be given to contradict, add to, or explain their contents, and the principle of the rule demands an inflexible adherence to it, even where the consequence is the partial or total failure of the testator's intended disposition. No principle connected with the law of wills is more firmly established or more familiar in its application than this; and it seems to have been acted upon by the Judges as well of early as of later times with a cordiality and steadiness which show how entirely it coincided with their own views."-1 Jarman on Wills (4th ed.), 409. The rule was laid down in Brown v. Selwin (a), which has been repeatedly followed. Agg-For the purpose of determining the subject matter of a testator's disposition a Court may inquire into every material fact relating to the property which is claimed as the subject of disposition, and to the circumstances of the testator and of his family and affairs. The same is true of every other disputed point respecting which it can be shown that a knowledge of extrinsic facts can in any way be made ancillary to the right interpretation of a testator's words: Wigram's Extrinsic Evidence in Aid of the Interpretation of Wills (4th ed.), pp. 11, 12. In every case the Court must put itself into the position of the testator when he made his will in order to realize what he means by the words he uses. In this case we start with the fact that the testator had no section 82 in Seymour, nor was there a section so numbered either in Seymour or in the whole parish. What, then, did he mean when he gave "land in Seymour (a) [1734] Cases Temp. Talb. 240. "section 82 ?" If parol evidence is admitted it is clear the number used has reference to the acreage, not to the section. If it be not looked at he still gives "land in Seymour" to Sarah Dwyer, though he wrongly calls it "section 82." In this view the words section 82 are a falsa demonstratio or descriptio, and may be struck out: Travers v. Blundell (b). The effect of this would be that Sarah Dwyer would get both allotments which the testator had at Seymour. It is to be noticed that the testator does not say "section number 82," and it may be that the "82" should be separated from "section" and read as referring to the acreage. Dawson in reply. HOOD, J. It is plain the testator intended to give some land to Sarah Dwyer for her life by any reading of the will. Then parol evidence is admissible to show what land he had to give. He had not any intention to give section 82 in Seymour, as he had not nor is there any land section 82 in Seymour. The will then expresses an intention to give land, and the evidence admitted shows that the land has been improperly described. The next step is to construe the words used in connection with the lands the testator then possessed, and see if any of those lands will reasonably fit in with the description of the land which he has in terms devised. I think, taking those two steps, the matter becomes quite clear, and that Sarah Dwyer is entitled to this land. The testator had no land section number 82, but he had land 82 acres in Seymour, on which Sarah Dwyer was living. I think it is doing no violence to the will to read" the land 82-acre section in Seymour" is to go in trust for Sarah Dwyer. She is entitled to the land for life. Direct the costs of all parties to be paid out of the estate, those of the executors between solicitor and client. Solicitors for plaintiffs: Gavan Duffy & King. Solicitors for defendant Sarah Dwyer: Moloney & Stuart. (b) [1877] 6 Ch. D. 436. A. J. A. 1898 In re PURCELL. Hood, J. 1898 September 9. [IN CHAMBERS.] IN RE O'DRISCOL. THE NATIONAL TRUSTEES COMPANY v. Will-Construction-Absolute discretion-Conversion-Residue. A testator devised and bequeathed all his real and personal estate to an executor "upon trust to sell call in and convert so much thereof as shall not consist of ready money into money at the absolute discretion of my said executor and out of the proceeds of such sale calling in and conversion and such ready money as aforesaid to pay," etc. Held, that the words gave the executor a discretion as to the mode and time of conversion, and made a joint-stock of the proceeds of both personalty and realty, so that a subsequent direction as to the disposal of "the rest residue and remainder of my said personal estate" included the whole of the residuary estate of the testator. ORIGINATING SUMMONS. Patrick O'Driscol made his will bearing date 11th November 1891, and died on the 20th July 1897. On the 17th August probate was granted to the National Trustees Executors and Agency Company of Australasia Limited. The will, so far as is material to this report, ran thus: Carlton . "This is the last will and testament of me Patrick O'Driscol of . . labourer. I give devise and bequeath all my real and personal property whatsoever and wheresoever situate unto the National Trustees Executors and Agency Company of Australasia Limited which said company I hereby appoint sole executor of this my will upon trust to sell call in and convert so much thereof as shall not consist of ready money into money at the absolute discretion of my said executor and out of the proceeds of such sale calling in and conversion and such ready money as aforesaid to pay my just debts funeral and testamentary expenses and as to the rest residue and remainder of my said personal estate to pay the same to. the Roman Catholic clergyman for the time being in charge of St. George's Church, Drummond-street, Carlton," etc. On the 30th August 1898 the National Trustees, etc., Company took out a summons in order that the following questions arising on the construction of the will and in the administration of the trusts might be determined : 1. Did the testator die intestate as to the proceeds of the whole of the real estate ? 2. Did the testator die intestate as to any and if so what part of the real estate? 3. What estate and interest in the proceeds of the real and personal estate does the Roman Catholic clergyman for the time being take under the will of the testator? 4. Are the next of kin of the testator entitled to share in any and what part of the estate of the testator? 5. If there is an intestacy as to the whole or any part of the proceeds of the real estate of the testator, out of what fund are the debts and pecuniary legacies to be paid? By an order of Hodges, J., Ellen Calnan was appointed to represent the next of kin of the testator on the hearing of the summons. Power for the plaintiff. Weigall for the defendant O'Connell was not heard. Meagher for Ellen Calnan-Taking the ordinary signification of the words the will does not dispose of the residue. It is not an absolute trust for conversion. The next of kin are entitled to the proceeds of the real estate. Counsel referred to Amphlett v. Parke (a); Maugham v. Mason (b); Wills Act 1890, sec. 26. HOOD, J. The substantial question in this case is whether or not the deceased died intestate as to part of his real estate. In my opinion he did not. The testator's will ran thus:-"I give devise and bequeath all my real and personal property whatsoever and wheresoever situate unto the National Trustees. Executors and Agency Company of Australasia Limited which said company I hereby appoint sole executor of this my will upon trust to sell call in and convert so much thereof as shall not consist of ready money into money at the absolute discretion of my said executor." These latter words (a) [1831] 2 Russ. & My. 221. (b) [1813] 1 Ves. & B. 410. 1898 In re O'DRISCOL. Hood, J. |