F.C. JOHNSTON AND These are, it seems to me, stronger reasons than those in Loveland'. S Case (1) for concluding that the testator intended to provide for 18 re JOHNSTON. the children, the plaintiffs in this action, and moreover his intention can, it seems to me, be given effect to without overstepping the ambit of the exceptions referred to in Hill v. Crook (2), exceptions within which, as I have said, I doubt whether Loveland's Case (1) can strictly come. I am therefore of the opinion that it should be declared that the plaintiffs are entitled, under the will and two codicils, to the estates and interests given by the will and codicils of the testator to the children of Louisa Emma Johnston. I am of opinion that costs of all parties, including the costs of the application in Chambers as between solicitor and client, should be allowed out of the estate. SHAND J. By his will, dated August 29th, 1918, the testator appointed the defendant Louisa Emma Johnston, therein described as Louisa Emma Johnston, formerly the wife of George Wilding," and the defendant, the Union Trustee Company of Australia Limited, to be executors and trustees thereof, and gave, devised, and bequeathed his residuary real and personal estate to his trustees upon the following trusts, namely Upon trust to pay the income of such residuary estate to the said Louisa Emma Johnston during her life and from and after her death to divide my residuary estate into the same number of equal shares as there shall be children of the said Louisa Emma Johnston who survive me or who die in my lifetime leaving a child or children living at the death of the said Louisa Emma Johnston and to appropriate one of such shares to each such child." The will then went on to direct how the appropriated shares were to be dealt with for the benefit of the child or children of any child of the said Louisa Emma Johnston who might die in her lifetime leaving a child or children her or him surviving, and of any child of the said Louisa Emma Johnston living at her death, and the child or children of such child born during the lifetime of the said Louisa Emma Johnston or within twenty-one years after her death. By a first codicil, dated April 26th, 1919, the testator made certain alterations in his will which are immaterial for the purposes of this case. (1) [1906] 1 Ch. 542. K (2) 1873, L.R, 6 H.L, 265, UNION TRUstee COMPANY OF AND OTHERS. McCawley C.J. Shand J. F.C. JOHNSTON AND Shand J. On June 24th, 1919, the testator, having previously married In re JOHNSTON. Louisa Emma Johnston on the same day, executed a second codicil in the following terms, namely:-" Whereas I have since the date of my said will inter-married with Louisa Emma Johnston therein named. And I hereby revive and confirm my said will.” The testator died on January 12th, 1922; and probate of his will and two codicils was on August 4th, 1922, granted to the executors named therein. Now, as was pointed out by Mr. Macrossan in his able argument, assuming that the will when executed referred only to legitimate children of Louisa Emma Johnston, and that at the date of the will Louisa Emma Johnston had no legitimate children-no child of hers other than a child by some husband other than the testator himself could ever take anything under the will, for, if the testator's marriage with Louisa Emma Johnston ever became possible, and in fact took place, it would operate as a revocation of the will. Cf. In re Bleckly (1). In that case, then, the testator at the time when he executed the will could not have intended the word "children" to include children of his own. But (assuming still that the will refers only to legitimate children) when it was revived and confirmed by the second codicil (except in the event of the dissolution of the testator's marriage with Louisa Emma Johnston and her subsequent re-marriage with somebody else, an event which can hardly have been in the testator's contemplation) the only children of Louisa Emma Johnston who could possibly take anything under the will would necessarily be children of the testator himself. I cannot think that by reviving and confirming his will the testator intended it to operate in favour of persons different from those in whose favour he originally intended it to operate. If the will had been made after the testator's marriage with Louisa Emma Johnston, it would, no doubt, have been difficult to distinguish the case from Dorin v. Dorin (2). But to quote the language of Lord Hatherley at p. 575 in that case: "The only mode in which the word 'children' can be made to bear a different sense from that which is its first legal and natural sense is this that if you look to the outward circumstances as well as to the expressions contained in the will and find that the outward circumstances of the case, combined with the expressions contained in the will, fail to give any adequate or intelligible sense to the will, then you have at once to arrive at the conclusion (1) [1920] 1 Ch. 450, at pp. 462, 464. (2) 1875, L.R, 7 H.L. 568, that the word 'children' has been used in some other or different sense." In the present case I think that the outward circumstances of the case, combined with the expressions contained in the testamentary documents under consideration, fail to give any intelligible sense to the will unless the testator was using the word 'children' in some different sense from its first legal and natural sense. And in these circumstances, I think that there is enough upon the face of the will itself to bring the case within the second of the two classes of exceptions to the general rule stated by Lord Cairns in Hill v. Crook (1). In my opinion, the only way to give the same meaning to the word children' in the will as originally executed, and in the will as revived and confirmed by the second codicil, and so to make intelligible the testator's meaning in reviving and confirming his will, is to interpret the word "children" as including the three infant plaintiffs, whom the testator had acknowledged as his own children. I am not pronouncing any opinion as to whether the infant plaintiffs are illegitimate or not. I am assuming, for the purposes of the present case, that they are illegitimate. And on that assumption I find that they are children of Louisa Emma Johnston within the meaning of those words as used in the testator's will, and are therefore entitled under the will to the estates and interests given by the will to the children of the said Louisa Emma Johnston. : F.C. In re JOHNSTON. UNION TRUSTEE COMPANY OF AUSTRALIA LTD. AND OTHERS. Shand J. MACNAUGHTON J. I have had the opportunity of reading and Macnaughton J. considering the judgments delivered and desire merely to express my entire concurrence. Declared that plaintiffs were entitled to the estates and interests given by Solicitors for plaintiffs: G. Storer, for Wonderley & Hall, Solicitors for executors and trustees: Morris, Fletcher & Cross. Solicitors for next-of-kin Chambers, McNab & McNab, for B. J. Beirne, Toowoomba. 1923. June 14, 16. McCawley C.J. Lukin J. Macnaughton J. Shand J. [IN THE FULL COURT.] ELLIOTT v. RENNER. Lease-Right-of-way-Laneway extending to open space-Access from laneway to demised premises necessarily over portion of open space-Construction-Right-of-way over laneway and so far along open space as would enable access to demised premisesUser of laneway by vehicles-Standing vehicles-User of oper space to enable vehicles to be turned-Convenient enjoyment— Injunction-Trivial cause of complaint-Nominal damagesDefendant successful on substantial issues-Costs. By a sublease the plaintiff, inter alia. granted full and free liberty of access at all times between the hours of 6 a.m. and 6 p.m. to the defendant to the demised premises over a laneway leading to those premises and situated between a shop occupied by the defendant and another shop. The laneway was shown on a plan. The laneway passed from a street through buildings facing the street, and continued within clearly defined boundaries to an open space in front of it. To obtain access to the demised premises by passing along the laneway it was necessary also to pass over a portion of this open space. Held (by Shand J. and the Court of Appeal), that the agreement granted a right-of-way along the whole of the laneway, and also so far along the open space in front of it as would enable the defendant to enter the demised premises. Held, that in using the right-of-way the defendant could bring vehicles to, and keep them outside, the premises whilst loading or unloading or otherwise for reasonable business purposes. Held, that as the turning of the vehicles taken along the laneway was necessary for the convenient enjoyment of the premises, the right to turn the vehicles on the open space was part of the right-of-way granted. APPEAL. This was an appeal from a judgment of Shand J. in which the material facts were stated and which was as follows: SHAND J. By his endorsement of the writ in this action the plaintiff is claiming : 1. A declaration that the defendant is not entitled to use or occupy a certain lane or passage the property of the plaintiff further or otherwise than by passing and repassing upon over or through the same to and from George Street, Brisbane, to the premises occupied by the defendant abutting upon the said lane or passage, and that the defendant is not entitled, save or further than as aforesaid, to obstruct hinder or prevent the plaintiff or his servants or tenants in their use and occupation of the said lane or passage, and in particular that the defendant his servants 3. An injunction restraining the defendant his servants and agents from entering or in any way trespassing upon the land the property of the plaintiff lying at the rear of the said lane or passage; and 4. Two hundred pounds damages for the wrongful use and obstruction of the said lane or passage by the defendant and for trespass by him on the last mentioned land. On a motion by the plaintiff for interlocutory injunctions (substantially in the terms of the injunction claimed by the writ) coming on before me, both parties, by their counsel, consented that the hearing of the motion should be treated as the trial of the action, and that the assessment of the damages (if any) should be left to me. The main question which I have to determine is as to the nature and extent of a right-of-way granted by the plaintiff to the defendant. This right-of-way was originally granted by a memorandum of agreement dated the twenty-third day of November, 1920, whereby the plaintiff, after agreeing to let to the defendant the piece of the land therein mentioned, entered into a further agreement in the following terms :----“ The said sublessor" (i.e., the plaintiff) "agrees to grant access at all times. between the hours of 6 a.m. and 6 p.m. to the sublessee" (i.e., the defendant)" to the premises hereby demised over the laneway indicated in the annexed plan and to provide the sublessor with a key to the door of such laneway to permit of ingress and egress over such laneway to the sublessee his servants and all other persons authorized by him to use such laneway provided always the sublessor may delay such traffic for a reasonable time (say ten minutes) during which space he shall clear the laneway temporarily of any existing obstruction to such ordinary traffic as the pastrycook business of the sublessee his executors or assigns may reasonably require. And the sublessor" (sic in annexure "A" in the plaintiff's affidavit but apparently a clerical error for 'sublessee") "agrees not to use the said laneway or allow another person to use the said laneway for the purpose of trading in second hand saddlery or harness." F.C. ELLIOTT RENNER. Shand J. |