66 unnecessary to resort to parol evidence." In Plant v. S.C. 1901. Bourne (1) Lord Lindley expressly adopts the reasoning and conclusions of Lush, L.J., and states that his judgment FLOCKTON in Shardlow v. Cotterell(2) conveys and expresses the true principle. 66 Now, in the present case the words used are "that property," the locality is stated as "Dixon Street, in the City "of Wellington," and the estimated frontage is given. It is abundantly clear that the property in question was real property in Dixon Street, and the demonstrative pronoun "that" points out a particular property. The identity of the property can therefore be established by parol evidence, and the evidence of Mr. Flockton, sen., in which he states the negotiations which took place on the 27th and 29th of January in reference to the property owned and occupied by the defendant in Dixon Street, and identifies the defendant's property with that property referred to in the agreement, is, in my opinion, clearly and properly admissible. In every other respect the agreement complies with the statute. It states the names of the parties, the price to be paid, the amount of the deposit, and the time for payment of the balance of the purchase-money and for the completion of the transaction. I am therefore of opinion that there is a sufficient agreement within the provisions of the Statute of Frauds. [The remainder of His Honour's judgment dealt with a defence of drunkenness of the defendant, to the knowledge of the plaintiff, at the time of executing the agreement. Honour found in favour of the plaintiff upon the evidence.] Judgment for plaintiff. Solicitor for the plaintiff: A. Gray (Wellington). Solicitor for the defendant: T. M. Wilford (Wellington). His LEONARD S.C. IN BANCO. WELLINGTON. 1901. April 17, 26. EDWARDS, J. In re THE WILL OF BANKS, PUBLIC TRUSTEE r. Will-Construction-Distribution per Stirpes or per Capita-Gift equally between Strangers in Blood and Children of Testator-Lapse-One of Class dead at Date of Will. A testator directed his trustee, on the decease of his wife, to divide the residue of his property equally between the grandchildren of his wife and the children of his former wife. The woman who was his wife at the date of the will was a widow when he married her, and the beneficiaries referred to as the grandchildren of his wife were children of a child of that wife by her first marriage, and were therefore strangers in blood to the testator. They were six in number. The beneficiaries referred to as the children of his former wife were children of his own by a former wife. They were two in number. There were circumstances rebutting any presumption which there might have been of an intention on the part of the testator to benefit his own children to a greater extent than his wife's grandchildren, who were strangers in blood to him: the will, namely, gave specific legacies to two of the latter, but none to any of the former. Further, the testator had been separated from his former wife, and from his children by her. Held, That the residue must be distributed amongst all the beneficiaries per capita and not per stirpes. One of the testator's children by his former wife was dead at the date of the will, but had left two children who survived the testator. Held, That they took nothing under the will. Wisden v. Wisden(1), Winter v. Winter(2), and Mower v. Orr(3) distinguished. Olney v. Bates(4), Browne v. Hammond (5), and In re Sir E. Harvey's Estate, Harvey v. Gillow,(6) followed. THIS HIS was an originating summons to interpret the will of Thomas Banks, dated the 6th of July, 1893. The testator died on the 15th of July, 1893. He had been twice married. The Christian name of each wife was Eleanor. By his first wife (née Skinner) he had had four children, of whom two survived the testator, one died in infancy, and the fourth, Mary Ann Banks, married one Charles Wells, and died more than twenty years before the date of the will, leaving two children who survived the testator. The testator had been separated from his first wife, and his children by her, and they were referred to in his will as the children of his former wife. 66 66 His second wife was a widow when he married her. He had no children by her. There were six grandchildren of hers living at the testator's decease, being children of a son of hers by her former marriage to one John Eaves. These were referred to in the will as his wife's grandchildren. The testator's second wife died in 1900. The will gave a legacy to the testator's wife, and two legacies of £100 each to two of her grandchildren. The clause of the will which it was sought to have interpreted was in the following terms: "As to the residue and remainder of all my real and personal effects I give devise and bequeath unto the Public Trustee in trust to "be applied in the following manner namely I request that "the Public Trustee shall dispose of all my real and personal property and invest the proceeds as he may think best and pay my wife Eleanor Banks the interest accruing from such "investment half-yearly during her life and at her decease equally divide the balance after providing for the above "legacies between her grandchildren and the children of my "former wife Eleanor Banks née Skinner." The questions argued were two-namely, 1, whether the distribution between the grandchildren of the testator's second wife and the children of the testator by his first wife should be per capita or per stirpes, and, 2, whether the children of the testator's child Mary Ann Wells (who was dead at the date of the will) took anything under the will. 66 66 C. H. Treadwell, for the Public Trustee : The Wells family is the only interest not represented. The question whether the distribution should be per stirpes or per capita was recently considered by your Honour in Burke v. Burke(1). Section 33 of the Wills Act, providing against lapse in the case of a gift to a child, applies even where the child was dead at the date of the execution of the will. C. P. Knight, for the grandchildren of the testator's widow : The distribution should be per capita and not per stirpes. A gift to A and the children of B is primâ facie per capita; so also to the children of A and the children of B, or even to Class A and Class B: Theobald on Wills(2); Jarman on Wills(3); Pattison v. Pattison (4). When children take in their own right, and not as representatives, they take per capita (3) 5th ed. Vol. ii. 1050. (4) 19 Beav. 638. (1) 18 N.Z. L.R. 216. (2) 4th ed. 251. S.C. 1901. In re WILL OF BANKS, PUBLIC TRUSTEE V. EAVES. S.C. 1901. In re WILL OF TRUSTEE V. EAVES. and not per stirpes. This is a rule of construction which will M. Myers, for the testator's children by his former wife : : The distribution should be per stirpes. No doubt the rule of distribution per capita is well established where there is a bequest to the children of A and the children of B; but where there is a gift "between" two sets of persons it is not necessarily so. The construction per capita will yield to a very faint glimpse from the context of a different intention : Jarman on Wills(14). The repetition of the word "between' was only a subsidiary ground in Burke v. Burke(15). The case went principally on the obvious intention to provide for the two poor grandchildren. In all the cases the legacy has been either wholly to relatives or wholly to strangers in blood. Here there is one class of blood relations (the testator's own children), and one of absolute strangers in blood. A primary intention on the part of the testator to benefit his own issue must be presumed. That is the policy of the Legislature in section 33 of the Wills Act. It is a presumption of law. The word "between" is used, and not "amongst." amongst." Primarily and etymologically, "between" signifies that there are two between whom the division is to take place; amongst signifies more. Words are to be taken in their proper and (1) 10 Ves. 166, 174. (3) 8 Ves. 603, 606. (4) 1 DeG. & Sm. 366, 370; 16 L.J. Ch. 484. (5) 1 DeG. & Sm. 470; 16 L.J. Ch. (6) 19 Beav. 471, 478. (7) 3 Bro. C.C. 367. (8) 3 K. & J. 6. (9) 18 N.Z. L.R. 216. 66 (10) 4 Beav. 239; 10 L.J. Ch. 371. (12) 33 Ch.D. 98, 102. 66 66 correct meaning: Hawkins on the Construction of Wills(1). [C. P. Knight referred to Rook v. The Attorney-General(7).] That was not a case of children. As to whether Mrs. Wells's children take, see the notes to section 33 of the Wills Act in Chitty's Statutes (8). In the cases there refer ed to the name of the person whom it was intended to benefit was specifically mentioned. C. H. Treadwell, in reply: The Wells children not being represented, it seems proper to add something on their behalf. In the case of the gift to children there can be no lapse; but the gift to the grandchildren of the wife would be subject to lapse. That constitutes them two distinct classes, and distinguishes this case from the cases cited in favour of the per capita rule. Section 33 of the Wills Act applies, though the child was dead at the date of the will: Wisden v. Wisden(9); Mower v. Orr(10); Winter v. Winter(11). EDWARDS, J.: Cur, adv. vult. [His Honour first stated the facts, and proceeded as follows.] Upon this state of facts two questions have been raisedfirst, as to whether the distribution between the grandchildren of the testator's wife and his own children should be per stirpes or per capita; second, whether the 33rd section of the (1) p. 2. (2) Vol. iv. 9, and Vol. ii. 308. (3) 19 Beav. 638. (4) 8 Ves. 603. (5) [1895] 2 Ch. 196. (6) 4 Beav. 239; 10 L.J. Ch. 371. (7) 31 Beav. 313; 31 L.J. Ch. 791. (10) 7 Hare, 473; 18 L.J. Ch. 361. S.C. 1901. In re WILL OF BANKS, PUBLIC TRUSTEE v. EAVES. |