C. A. 1910 FREEMAN, In re. HOPE v. words that follow are nothing more than general words carrying out that revocation. The revocation of a gift must be clear and certain: Cleoburey v. Beckett. (1) To treat these words as unambiguous would be to defeat the intention of the testator: Earl of Hardwicke v. FREEMAN. Douglas. (2) It is possible to put such a construction on the will and codicil that they can stand together, and we submit that the codicil must be read only with reference to the revocation: Hearle v. Hicks (3); In re Percival. (4) Hughes, K.C., in reply. To ask the Court to say that the word "throughout" does not revoke the gift of residue is asking it to embark upon conjecture. The codicil cutting down the gift in the will is unambiguous and the plain intention of the testator must be followed: per Lord Campbell L.C. in Randfield v. Randfield. (5) Cur. adr. rult. 1909. Dec. 15. JOYCE J. read the material parts of the will as above set out, and continued :-Now I observe that the name of Bowyer Nichols occurs in this will three times, once in the appointment of executors and trustees, again in the bequest of the legacy of 1000l. to him if he prove the will, and thirdly in the disposition of the residue equally between Lady Duckworth, Bowyer Nichols, and G. F. Leverson. By a codicil dated July 29, 1908, the testator "firstly" gives to his nurse 400l.; that is in addition to a previous legacy to her in the will. "Secondly" he says "by my said will I have appointed Bowyer Nichols to be one of the executors thereof and I have given him a legacy of one thousand pounds for his trouble in acting as such executor Now I hereby revoke the appointment of the said Bowyer Nichols as such executor and also the said legacy of one thousand pounds given to him as aforesaid "saying nothing whatever about the one-third of the residue which he has bequeathed to the same gentleman. Then he goes on to appoint Harry Freeman to be an executor (1) (1851) 14 Beav. 583. (3) (1832) 1 Cl. & F. 20. (5) (1860) 8 H. L. C. 225, 235. of his will in the place of the said Bowyer Nichols and to give to the said Harry Freeman a legacy of two hundred pounds free of legacy duty for his trouble in acting as such executor. So far no difficulty arises, but then come these words: "And I declare that my said will shall be construed and take effect as if the name of the said Harry Freeman were inserted in my said will throughout instead of the name of the said Bowyer Nichols and in all other respects I confirm my said will." This codicil is attested by a solicitor, and the original, when seen, appears to have been engrossed either in a solicitor's office or by a law stationer, and I infer that this codicil was prepared either by the solicitor or at least by the conveyancing clerk to the solicitor who attested it. It is in a sense divided into heads. "Firstly," there is the alteration of the legacy to the nurse ; 66 Secondly," there is the change in the name, in the personnel, so to speak, of the executors; but then without finding any "Thirdly" we have the words "And I declare that my said will shall be construed and take effect" &c. &c. As I have said, there is nothing expressly revoking the disposition of the onethird of the residue given to Bowyer Nichols. These words "And I declare" do not appear to begin a new paragraph or heading. It is true that the words "And I declare" are written in a larger hand, but so also are the words "firstly," "secondly," and "I appoint." There is no full stop before "And I declare," nor indeed, according to my recollection, is there any punctuation of the will in any respect. This word "throughout" in this clause "And I declare that my said will shall be construed and take effect as if the name of the said Harry Freeman were inserted in my said will throughout instead of the name of the said Bowyer Nichols " is not in any view of the case accurate, because if the name of Harry Freeman were to be read throughout instead of the name of Bowyer Nichols, then it must be so read in the gift of the legacy of 1000l. to Bowyer Nichols. Of course that was not intended, because there is an express revocation of that legacy; but still the word throughout" is not accurate, and, as a matter of fact, omitting all reference to the alteration in the appointment of executors and in the gift of the legacy to Bowyer Nichols, the name 66 C. A. 1910 FREEMAN, v. FREEMAN. Joyce J. Bowyer Nichols" only occurs in one other place, namely, in the disposition of the residue. C. A. 66 1910 FREEMAN, In re. HOPE r. Joyce J. 66 It is contended on the one hand that I must take the words strictly and literally, and that by reason of these words the onethird of the residue previously given to Bowyer Nichols is now FREEMAN. to be given to Harry Freeman. On the other hand it is contended that these words "And I declare" and so on are merely supplementary to the change in the appointment of executors, and that although, if we read them strictly, they may be taken to mean a change of the name in the disposition of the residue, yet what it really means is "I change the name throughout my will in the reference to or mention of executors." The words "I declare that my said will shall be construed" and so on are really common form. Certainly the later forms are more exact; but it so happens that the very first form that I turned to of a codicil which is executed merely for the purpose of altering the appointment of executors and substituting one name for another was in Hayes and Jarman's Concise Forms of Wills: the words used are shall take effect as if the names . . . . had been originally inserted throughout the said will instead of the names of the said " &c. Of course that is right where there is no other gift or benefit given to the executor. In another conveyancing book at which I looked the draftsman is warned against the use of this form, as it might raise difficulty, and another form is given. However, it is common form, and if in this case the draftsman had really intended to alter the disposition of the residue, I should have expected either a new paragraph or heading beginning with "Thirdly," or I should have expected to have an express revocation of the gift of onethird of the residue to Bowyer Nichols; and it is almost impossible to my mind to believe that a draftsman of any knowledge or experience could have intended to alter the disposition of the residue merely by such words as these not commencing a new paragraph and coming where they do as supplementary to the alteration in the names of the persons who were appointed executors. The result altogether to my mind is that I have very serious doubt whether the testator ever intended to change the C. A. 1910 In re. HOPE v. FREEMAN. Joyce J. disposition of the one-third of the residue which he had given to Bowyer Nichols. That being so, upon the whole I think this is a case for the legitimate application of the settled, FREEMAN, well-established, and sound principle which was discussed by more than one of the Lords in the case of Randfield v. Randfield (1), and which was applied by the Court of Appeal in In re Percival (2); and I observe that this rule has been applied not only when the question was one merely of the revocation of the legacy -that is, a question between the legatee and the residue-but it has been applied in Hearle v. Hicks (3) as between one devisee and another person who claimed to be devisee under the same will. Therefore my conclusion is, upon the whole, that there is so much doubt upon this codicil that I ought to apply the principle I have mentioned, and not take away from Bowyer Nichols the one-third of the residue which is clearly bequeathed to him by the will. R. M. The defendant Freeman appealed. The appeal was heard on April 8, 1910. Hughes, K.C., and Byrne, for the appellant. There is here a plain direction that the will is to take effect as if the name of Harry Freeman were substituted "throughout " for the name of Bowyer Nichols, and unless those words were intended to affect the gift of residue they could not affect anything. Express revocation is not necessary; the substitution of another person is sufficient. The direction itself being perfectly clear and unambiguous, it cannot be limited by the preceding recital which, though not incorrect so far as it goes, is incomplete: Higgins v. Dawson. (4) The word "throughout" means "from beginning to end." In In re Percival (2) the language was more restricted. The object of this direction was to cut out every possible interest of Nichols under the will, whether fiduciary or beneficial. Cave, K.C., and Luxmoore, for the respondent, Nichols. Where there is a clear gift there must be an equally clear revocation : Hearle v. Hicks. (5) It is inconceivable that the gift of residue (1) 8 H. L. C. 225. (2) 59 L. T. 21. (3) 1 Cl. & F. 20. (5) 1 Cl. & F. 24. C. A. C. A. 1910 FREEMAN, In re. HOPE v. FREEMAN. Having should be revoked by general words such as these. Hughes, K.C., in reply. COZENS-HARDY M.R. This is an appeal from an order of Joyce J., who has declared that by the true construction of the will and codicil of the testator the defendant Bowyer Nichols is entitled to a third share of the residuary proceeds of the testator's estate which was by the said will given to him, and the question is whether that decision is right. In my opinion the decision is quite right. The will is not inartificially framed. It is what is called a lawyer's will and it is carefully drawn. By the second clause of the will the testator appointed Sir Theodore Hope, Bowyer Nichols, and Francis Ford Freeman to be the executors and trustees of his will and bequeathed to the said Bowyer Nichols if he should prove the will, and in addition to any other benefit to which he might be entitled under the will, the sum of 1000l. free of legacy duty. The subsequent clauses contain a number of legacies, one to Mrs. Bowyer Nichols, but none to Mr. Bowyer Nichols himself. Then we come to clause 6, which is the only other clause in which the name of Bowyer Nichols appears, and by that clause the testator gave all his estate and effects whatsoever and wheresoever as well real as personal to his trustees upon trust for sale and conversion with a power of postponement for such period as they should think proper, and upon trust to pay out of the, proceeds his funeral and testamentary expenses and debts and the legacies therein before bequeathed and the duties thereon, and to pay the residue of the same moneys unto and equally between Lady Duckworth, (1) 59 L. T. 21. |