Nos. 6, 7. Cartwright v. Vawdry; Wilkinson v. Adam. —Notes.

COTTON, BOWEN, and FRY (affirming the judgment of KAY, J.) unanimously decided that the child in question could not take under the will. The above statement of the opinions of Lords Justices COTTON and BOWEN is sufficient to show the ground of their judgment. Lord Justice FRY agreed, on the short ground that he could not read "my child or children " as meaning "my reputed child and children." If he could have done so, he doubted whether a child en ventre sa mere at the testator's death could have the reputation of being his child.

In In re Haseldine, Grange v. Sturdy (C. A. 1886), 31 Ch. D. 511, 54 L. T. 322, 34 W. R. 327, the testator, after giving by his will (amongst other legacies) £5 each to the children of M. A. L., bequeathed (by a codicil) £400, on the death of an annuitant, "unto and equally between all the children who shall be then living of M. A. L. share and share alike." M. A. L. had three children, born before marriage, with her husband, but treated as his legitimate children; and she never had any legitimate children. Lord Justice COTTON was of opinion that the children were not entitled; for that there was no repugnancy or inconsistency in giving to the word "children" its proper sense of legitimate children; but the Lords Justices BOWEN and FRY held that there was enough in the will, as explained by the surrounding circumstances, to show that the testator used the word "children" in a sense which would apply to the existing children. It was accordingly decided that the children (though illegitimate) were entitled.

In In re Hastie's Trusts (1887), 35 Ch. D. 728, 56 L. J. Ch. 792, 57 L. T. 168, 35 W. R. 692, the testator by will, in 1838, created a trust-fund to pay an annuity to "M. E. M., who is and has been for some time past been cohabiting with me, and is the mother of the children hereinafter named," and directed the residue to be held "in trust for my four natural children by the said M. E. M., viz.: James, Charles, Emma, and Jessie Hastie, and all and every other children and child which may be born of the said M. E. M. previous to and of which she may be pregnant at the time of my death to be divided, &c." Besides the children named in the will, there were three others born of M. E. M. after the date of the will and before the death of the testator, all of whom were illegitimate and were known by the name of the testator. STIRLING, J., held that the claim of the three after-born children came within the principle of the decision of the Court of Appeal in Occleston v. Fullalove, and that the fund was divisible into sevenths accordingly.

In In re Horner, Eagleton v. Horner (1887), 37 Ch. D. 695, 57 L. J. Ch. 211, 58 L. T. 103, 36 W. R. 348, the testator directed that a certain part of his estate should be held upon the like trusts for the

Nos. 6, 7. - Cartwright v. Vawdry; Wilkinson v. Adam. - Notes.

benefit of his sister C., "the wife of T. H. and her child or children,” as were therein before expressed concerning his brother W. and his child or children. C. was not married to T. H., who had a lawful wife from whom he was separated and who survived him, but C. cohabited with T. H. At the date of the will C. had had no child for eighteen years, and was presumably past child-bearing. These facts were known to the testator. STIRLING, J., upon a review of the cases, held that the case was within the principle of Hill v. Crook, and that the circumstances showing the intention to include illegitimate children, though not so numerous as in that case, were sufficient to enable him to decide in favour of the illegitimate children.

The decision in Occleston v. Fullalove was discussed and distinguished by PORTER, (M. R. for Ireland), in Thomson v. Thomas (1891), 27 L. R. Ir. 457. In this case E. T. assigned by deed to trustees a policy of assurance on her life upon trust for the use of A. and B., being the two children living of the said E. T., and for all and every other, the child or children of the said E. T. thereafter to be born, and as might be living at her death, in equal shares. E. T. was at the time of the deed living with J. T., her reputed husband, but to whom she was not lawfully married. J. T. was a party to, and a trustee under, the deed. The two children named in the deed had been born during this illicit connection, and a third was, in like manner, born after the date of the deed. It was a question in the case whether this third child could take under the deed. PORTER, M. R., held that he could not, resting his decision on the authority of Blodwell v. Edwards, Cro. Eliz. 509; and he distinguished Occleston v. Fullalove from both that case and the case before him, as follows: "Since the case of Blodwell v. Edwards it has never been questioned that a provision by deed for future illegitimate children is void. I do not say that a deed containing such provision would be void to all intents and purposes, or in so far as it was not merely a provision for future illegitimate children. There is nothing in Occleston v. Fullalove contrary to this view, which has been adopted by the profession and by the text-writers, as well as being the considered opinion of the Judges in Blodwell v. Edwards. Occleston v. Fullalove, when examined, appears to have been decided on two grounds: first, that as the will speaks from the death of the testator, there was no uncertainty as to who would take under it; and secondly, that as a will was an ambulatory instrument capable of being revoked at any time, the provision in it did not tend to encourage immorality, in the same way as if it had been a deed." To say that the decision in Occleston v. Fullalove was on the ground that the will "speaks from the death" is hardly an accurate expression. It would be more correct to say that the will was construed as intending to ben

VOL. XXV. - 34

Nos. 6, 7.-Cartwright v. Vawdry; Wilkinson v. Adam. —Notes.

efit all objects falling within the description at the time of the testator's death.

In In re Harrison, Harrison v. Higson, 1894, 1 Ch. 561, 63 L. J. Ch. 385, 70 L. T. 868, a testator bequeathed his residuary estate in trust for his four children by name, including "A. J. H., the wife of J. H.," and declared the trusts of the share of A. J. H. to be to pay her the income during her life, and so that during any coverture she should have no power to anticipate the same, and after her death "for the children or child of the said A. J. H. who being a son or sons," &c. J. H. had in fact gone through the ceremony of marriage with A. J. H., who was his deceased wife's sister. There had been a child of A. J. H. born during this connection and before the date of the will. It was proved that the testator was aware of the facts. Two other children were in like manner born after the death of the testator. KEKEWICH, J., or the authority of In re Horner (supra), held that the child born before the will was entitled, after the death of the mother, to the whole share.

Here may be mentioned In re Jodrell, Jodrell v. Searle (C. A. 1890), 44 Ch. D. 590, 59 L. J. Ch. 538, where the principle of Hill v. Crook, and particularly Lord CAIRNS' dictum as to taking the testator's will as the "dictionary" to find out the meaning of the terms he has used, was applied by Lord HALSBURY, L. C., and the Lords Justices LINDLEY and BOWEN to give to the word "relatives" in the codicil of a will an extended sense, so as to include the descendants of persons previously named in the will who were not relatives in the strict sense of the word. The principle of In re Jodrell, Jodrell v. Searle was followed by STIRLING, J., in In re Deakin, Starkey v. Eyres, 1894, 3 Ch. 565, 63 L. J. Ch. 779, 71 L. T. 838, 43 W. R. 70. To the same category may be referred the decision of ROMER, J., in In re Walker, Walker v. Lutyens, 1897, 2 Ch. 238, 66 L. J. Ch. 622. Compare In re De Wilton, De Wilton v. Montefiore, 1900, 2 Ch. 481, 69 L. J. Ch. 717, where STIRLING, J., could not find in the will the requisite expressions. for applying the principle.

AMERICAN NOTES.

Gift to Illegitimate Children. The American decisions in regard to the capacity of illegitimate children to take by will are in accord with the later English decisions, in establishing the just rule that such children, when described with sufficient certainty, have the same capacity in this respect as legitimate children. Dane v. Walker, 109 Massachusetts, 179; Dunlap v. Robinson, 28 Alabama, 100; Smith v. Du Bose, 78 Georgia, 413; Shelton v. Wright, 25 id. 636; Hicks v. Smith, 94 id. 809; Kingsley v. Broward, 19 Florida, 722; Hughes v. Knowlton, 37 Connecticut, 429; Williams v. McDougall, 39 California,

Nos. 6, 7.

Cartwright v. Vawdry; Wilkinson v. Adam.

Notes.

80; Sullivan v. Parker, 113 North Carolina, 301; Stewart v. Stewart, 31 New Jersey Eq. 398; Heater v. Van Auken, 14 id. 159; Scholl's Will, 100 Wisconsin, 650; Gates v. Seibert, 157 Missouri, 254, 57 S. W. Rep. 1065.

The description or identity of an illegitimate child may be by name, or by other description or circumstances which show that the testator intended to make such a child a beneficiary. Gelston v. Shilds, 78 New York, 275; Elliott v. Elliott, 117 Indiana, 380, 385; Dickison v. Dickison, 36 Illinois App. 503; Sullivan v. Parker, 113 North Caroline, 301; Howell v. Tyler, 91 id. 207.

The word child or children includes an illegitimate child or children, in case there be no other child or children to whom the word can apply. Scholl's Will, 100 Wisconsin, 650.

In case a testator makes a gift to the children of another, who has already deceased at the date of the execution of the will, leaving no legitimate, but illegitimate children, for in such case the testator must have intended the illegitimate children then living, because there could not be any others born subsequently. Ferguson v. Mason, 2 Sneed (Tenn.), 618, 627; Gardner v. Heyer, 2 Paige Ch. (N. Y.) 11.

Parol evidence is admissible to show that the person mentioned as parent was never married, but that he or she had illegitimate children living at the date of the will, and that the testator knew these facts, and that such parent was dead. Collins v. Hoxie, 9 Paige Ch. (N. Y.) 80, 88; Heater v. Van Auken,

14 New Jersey Eq. 159, 167.

16

The word "children" in a will without further description means legitimate children. The same may be said of “issue," " descendants," "sons," or daughters.' Legitimate children only are presumed to be intended as beneficiaries in a gift to them in such general terms. Flora v. Anderson, 67 Federal Rep. 182; Adams v. Adams, 154 Massachusetts, 290, 292; Kent v. Barker, 2 Gray (Mass.), 535; Hicks v. Smith, 94 Georgia, 809; Heater v. Van Auken, 14 New Jersey Eq. 159; Miller's Appeal, 52 Pennsylvania State, 113; Collins v. Hoxie, 9 Paige (N. Y.), 81, 88; Gardner v. Heyer, 2 id. 11; United States Trust Co. v. Maxwell, 57 New York Supp. 53; Ferguson v. Mason, 2 Sneed (Tenn.), 618, 627; Bennett v. Cane, 18 Louisiana Ann. 590; Gibson v. McNeely, 11 Ohio State, 131; Gibson v. Moulton, 2 Disney (Ohio), 158; Gates v. Seibert, 157 Missouri, 254; Kirkpatrick v. Rogers, 6 Iredell (N. C.) Eq. 130; Sullivan v. Parker, 113 id. 301.

The burden of proving that a person who claims as a legitimate child is not legitimate, is upon the party alleging his illegitimacy. In re Matthews' Estate, 37 New York Supp., 308; Metheny v. Bohn, 160 Illinois, 263.

No. 8.-Dundee (Magistrates, &c. of) v. Morris, 1 Pat. Sc. App. 747-754.-Rule.

No. 8.- DUNDEE (MAGISTRATES, &c. OF) v. MORRIS. (H. L. 1858.)

RULE.

A BEQUEST for a charitable purpose is good, if the will contains sufficient materials for ascertaining the scope of the purpose and estimating the amount intended to be given to it.

Dundee Magistrates (Appellants) v. Morris and others (Respondents). 1 Paterson's Sc. App. 747-762 (s. c. Macqueen 134; 34 Sc. Jur. 528). [Extracted by permission of Messrs. Wm. Green & Sons, proprietors of the copyrights.]

[747]

Will. Charity. - Legacy.

Held (reversing judgment), in reference to holograph writings found in the repositories of a deceased, expressive of his wishes to establish an hospital in Dundee for boys, that they were of a testamentary nature and effective to carry out his intentions, and a remit made to the Court of Session to frame a scheme for the establishment of the hospital.

The effect of the decision, so far as relates to the principle of the above rule, will appear from the deliverances of the Lords present which were as follows:

Lord CHELMSFORD, L. C. [After adverting to certain questions as to the probative character of the writings propounded as tes

tamentary writings, and the effect of certain apparent [753] deletions of words in the writings]:- The bequest to be

gathered from the two papers, reading them in the state in [*754] which they actually appear, is to establish in the town of Dundee an hospital to contain 100 boys, the inhabitants born and educated in the town of Dundee to have the preference.

This being the form and nature of the bequest, the only remaining question which arises is, whether, according to the law of Scotland with respect to charities, it is a good and valid bequest; or whether (as the respondents contend) it is void for uncertainty. From the view of the case which was taken by the learned Judges of the Court of Session, they considered it unnecessary to enter