Chap. XXII. But not if

he was unknown to

It is, on the other hand, perfectly clear that the mere fact of a person fully answering to the description in the will (the description being of a persona designata) will not entitle him to take under it if it appears from the admissible evidence the testator. that the testator was not aware of his existence. Therefore, under a gift to Elizabeth, daughter of Mary Beynon, or to my nephew Joseph, neither Elizabeth, an illegitimate daughter, nor a nephew called Joseph, will take if it appears that the testator was not aware of their existence. Doe d. Thomas v. Beynon, 12 Ad. & E. 431; Grant v. Grant, L. R. 5 C. P. 380, 727.

The testator may have habitually called certain persons or Evidence of nickname, things by peculiar names by which they are not commonly &c., is known, and of this evidence is admissible; thus, where the admissible. gift was to Catherine Earnley, evidence was admitted to show whom the testator was in the habit of calling by that name. Beaumont v. Fell, 2 P. W. 141; Masters v. Masters, 1 P. W. 421; Dowset v. Sweet, Amb. 175; Lee v. Pain, 4 Ha. 251; Kell v. Charmer, 23 B. 195.

But not explain a

evidence to

But if the testator merely designates legatees by letters having no reference to their names, there is a patent ambiguity which may not be explained by evidence. Clayton v. Nugent, patent 13 M. & W. 200; Sullivan v. Sullivan, I. R. 4 Eq. 457.

not be

Where a blank is left for the name of a legatee, no evidence Blanks may of intention is admissible, and the gift is void for uncertainty. supplied. Winn v. Littleton, 2 Ch. Ca. 51; Baylis v. Attorney-General, 2 Atk. 239; Hunt v. Hort, 3 B. C. C. 311; Taylor v. Richardson, 2 Dr. 16.

Where, however, there is a clear gift to a certain class, and an intention is expressed of including or excluding certain persons whose names are left in blank, the clause of inclusion or exclusion only is void for uncertainty, and the gift to the class is good. Illingworth v. Cooke, 9 Ha. 37; Gill v. Bagshaw, L. R. 2 Eq. 746.

But if the testator goes on to define the class by name, and inserts the names of persons who cannot alone be said to constitute the class, leaving blanks for other names, the gift is void for uncertainty; for instance, if the gift be to my

T.W.

R

Chap. XXII. nephews and nieces, John and Nanny, followed by a blank, John and Nanny not satisfying the description nephews and nieces. Greig v. Martin, 5 Jur. N. S. 329.

Inaccurate description.

The fact that a blank is left for the Christian name, or for the surname, of the legatee will not avoid the legacy if there is no doubt to whom the rest of the name applies. Price v. Page, 4 Ves. 680; Phillips v. Barker, 1 Sm. & G. 582, where the gift was to Davis, daughter of S. Davis, and the testator knew only of one daughter at the date of the will. In bonis De Rosaz, 2 P. D. 66; see Re Gregson's Trusts, 12 W. R. 935.

Although a blank is left for the name of a legatee, the Court may be able from the context to ascertain who was intended to take. In re Harrison; Turner v. Hellard, 30 Ch. D. 390; Furniss v. Phear, 36 W. R. 521.

II. Where the legatee is inaccurately named or described, so that there is no one who fully answers the name or description, the Court will if possible gather from the contents of the will and the surrounding circumstances who was meant. Ryall v. Hannam, 10 B. 536; Camoys v. Blundell, 11 Sim. 467; 1 Ph. 279; 1 H. L. 778; Stringer v. Gardiner, 27 B. 35; 4 De G. & J. 468; Douglas v. Fellows, Kay, 114; Dooley v. Mahon, I. R. 11 Eq. 299; In re Twohill, 3 L. R. Ir. 21; In bonis Brake, 6 P. D. 217; Baxter v. Morgan, 7 L. R. Ir. 501; In re Taylor; Cloak v. Hammond, 34 Ch. Div. 255; In bonis John Chappell, (1894) P. 98.

Under a gift to the daughters of my friend Ignatius Scoles, where Ignatius Scoles was a Jesuit priest but had sisters, it was held, with the assistance of earlier wills, that the sisters were entitled. Re Waller; White v. Scoles, 80 L. T. 701.

In determining whether a legatee fully answers the description, the whole will must be considered. Thus, though there may be a person precisely answering to the name given by the testator, it may appear from other parts of the will that that person could not have been intended. Charter v. Charter, L. R. 2 P. & D. 315; ib. 7 H. L. 364; In re Wolverton Mortgaged Estates, 7 Ch. D. 197.

The fact that a legatee has once been accurately described Chap. XXII. will not prevent his taking another gift under a less full or an

inaccurate description. Doe d. Morgan v. Morgan, 1 Cr. & M.

235; Careless v. Careless, 19 Ves. 604; 1 Mer. 384.

But it will if the two descriptions are so different as to raise

a strong probability that the same legatee cannot have been meant. Lee v. Pain, 4 Ha. 254.

accurate,

inaccurate.

If a legatee is mentioned by name and an erroneous descrip- Name tion is added, the name will prevail if there is a person fully superadded answering to the name and no one to answer the description. description Veritas nominis tollit errorem demonstrationis. Standen v. Standen, 2 Ves. Jun. 589; 6 B. P. C. 193; Doe d. Gains v. Rouse, 5 C. B. 442; Re Blackman, 16 B. 377; Re Ingle's Trusts, 11 Eq. 578.

inaccurate,

Similarly, if there is no one to answer the name, a person Name satisfying the description will take. Pitcairne v. Brase, Finch, superadded 403; Dowset v. Sweet, Amb. 175; Parsons v. Parsons, 1 Ves. description Jun. 266; Garth v. Meyrick, 1 B. C. C. 30; Doe d. Cook v. Dancers, 7 East, 229.

If there is a gift to a society by an erroneous name the Court will, if possible, discover what society was intended. Wilson v. Squire, 1 Y. & C. C. 654; Bunting v. Marriott, 19 B. 163; Kilvert's Trusts, 12 Eq. 183; 7 Ch. 170; see Coldwell v. Holme, 2 Sm. & G. 31; Makeown v. Ardagh, I. R. 10 Eq. 445. Where a testatrix gave 200l. to each of two unincorporated societies which amalgamated between the date of her will and death, it was held that the amalgamated society took both legacies. Re Joy; Purday v. Johnson, 60 L. T. 175.

accurate.

Misdescripsociety.

tion of

III. If there are several persons who accurately answer Equivocation. the whole description, there is an equivocation, and evidence of the testator's intention is admissible. Lord Cheney's Case, 3 Rep. p. 137; fol. 68a; Doe d. Morgan v. Morgan, 1 Cr. & M. 235; Doe d. Gord v. Needs, 2 M. & W. 129; Doe d. Allen v. Allen, 12 A. & E. 451; Jones v. Newman, 1 W. Bl. 60; Jefferies v. Michell, 20 B. 15; In bonis Ashton, (1892) P. 83; Phelan v. Slattery, 19 L. R. Ir. 177.

And if part of the description applies equally to two persons and the rest of it applies to no one, the portion which has no

Chap. XXII. application may be considered away, so as to raise an equivocation and make evidence of intention admissible. Price v. Page, 4 Ves. 680; Still v. Hoste, 6 Mad. 192; Careless v. Careless, 19 Ves. 604; 1 Mer. 384. These cases are referred to this head by Lord Abinger, C.B., in Doe d. Hiscocks v. Hiscocks, 5 M. & W. 363, 370; but quære whether Price v. Page was not a case of equivocation strictly, and whether the latter two cases were not mere cases of misdescription. At any rate, in them no evidence of intention proper was offered, but only evidence of surrounding circumstances.

Equivocation may arise though two persons may not both answer the

same description with

equal

accuracy.

The will may on the face of it raise a case of equivocation.

An apparent

cation may

be explained by the will itself.

To raise a case of equivocation it is sufficient, if two persons equally answer the description in a popular sense.

Thus a father and son both equally answer the description John Smith, though properly speaking the son is John Smith the younger. Jones v. Newman, 1 W. Bl. 60.

So a person whose name was W. M. and one whose name was W. J. R. B. M. were both held equally to answer the description W. M., since a man is popularly known by his first Christian name. Bennett v. Marshall, 2 K. & J. 740.

It makes no difference that the will itself shows that there are two persons equally answering a given description. For instance, if there is a gift to G. G., son of J. G., another to G. G., son of G. G., and a third to G. G., son of G. Doe d. Gord v. Needs, 2 M. & W. 129.

But parol evidence is not admissible to show to which of two antecedents in the will a word of reference is to be referred, if, for instance, two Ann Collins's have been mentioned, and there is a gift to the said Ann Collins. Fox v. Collins, 2 Ed. 107; Castledon v. Turner, 3 Atk. 957.

No case of equivocation arises if it can be gathered from the case of equivo- will which of several persons equally answering the name is meant, as in a devise to M. W., my brother, and to Simon, my brother's son-the son of the brother just mentioned being clearly indicated. Doe d. Westlake v. Westlake, 4 B. & Ald. 57; Healy v. Healy, I. R. 9 Eq. 418.

And, similarly, if a legatee has once been accurately described, and the same name is afterwards mentioned without the description, evidence is not admissible to show that a

different legatee of that name was meant.

Webber v. Corbett, Chap. XXII.

16 Eq. 515; Richardson v. Watson, 4 B. & Ad. 787.

nephews

wife's

But the case is different if there is first a gift to A. B. and then a gift to A. B. of X., and there are two A. B.'s, one of X. and one not. Doe d. Morgan v. Morgan, 1 Cr. & M. 235. Further, it is clear that if there were a gift to my "nephews" Whether as a class, evidence that the testator generally applied the proper and a term to his wife's nephews would not raise a case of equivoca- nephews are tion so as to make evidence of intention admissible as between both equally nephews. nephews proper and wife's nephews. Beachcroft v. Beachcroft, 1 Mad. 430, which may be cited to the contrary, so far as it cannot be upheld ex visceribus of the will, has been generally disapproved.

It is equally clear that if the testator at the date of his will had only a wife's nephew called Joseph, the subsequent birth of a brother's son called Joseph would not entitle the latter to take under a gift to my nephew Joseph. And the result would be the same if the testator at the date of his will was not aware that his brother had a son called Joseph. Doe d. Thomas v. Beynon, 12 Ad. & E. 431; Grant v. Grant, L. R. 5 C. P. 380; ib. 727. My nephew Joseph is clearly persona designata, and the question then is, whom did the testator mean to point out?

Evidence of intention, though in fact admitted in Grant v. Grant, was not necessary for the decision, since the testator cannot have meant to benefit a person of whose existence he was not aware, under a particular name and description, and therefore a case of equivocation cannot be said to have arisen.

Whether evidence of intention would be admissible if the testator was aware at the date of his will that both his brother and his brother-in-law had sons called Joseph is doubtful, though the judgment in Grant v. Grant seems to imply that it would.

part of a description

IV. If there is a gift by name, with a particular description Case where superadded, and there is some one who answers to the name and some one who answers to the description, no evidence of intention is admissible. Doe d. Hiscocks v. Hiscocks, part to 5 M. & W. 363; Bernasconi v. Atkinson, 10 Ha. 345; Charter

applies to one

person and

another.