8.—9

39

88. An example of the trouble caused by a testator attempting to frame his own will is furnished by the case of In re Taylor, Taylor v. Tweedie (1923, 1 Ch. 99), decided by the Court of Chancery in England hist year. There the testatrix wrote her will on a stationer's form, and, after malting certain bequests of furniture and plate, bequeathed " one-third of the money I have or may be entitled to now and at any future time " to certain named persons, and to another " the remaining two-thirds of my money including the money 1. have now and that which I may be entitled to now or at any future time." The trustees were left in doubt as to what testatrix intended to include in the term " money," and took proceedings in the Chancery Division to obtain the direction's of the Court. It was held by Mr. Justice Peterson that the term "money" did not include and pass the whole residuary estate, but was confined to money which the testatrix had or was entitled to, whether cash in hand or at the bank, or whether represented by debts payable presently or at some future definite date. He held further that the term included war - loan and debenture stock and bonds redeemable at a fixed date, but not debenture stock which was irredeemable or redeemable only at the option of the issuing company. The case was carried to the Court of Appeal, which varied the decision of the Court below by holding that the gift included all the invested capital of the testatrix, and not merely the particular investments specified by the Court below. In delivering his judgment the Master of the Rolls said (p. 104) : " Instead of giving instructions to have her will properly drawn up, she, in order, I suppose, to save a guinea or two, bought one of the skeleton printed forms of will which can be bought in various places, and filled it up by herself. I understand that the form had a note upon, it by which the purchaser was instructed to use clear words and words of which she understood the meaning. She may have used words of which she thought she knew the meaning, but naturally she had no knowledge of the meaning which various decisions have attached to these words when used in a will. The result has been that the words she used are so ambiguous that those charged with, the administration of her estate have been, forced to come to the Court for directions, and the estate will, whatever the result of the litigation, be diminished by a substantial sum representing the cost of that litigation." 89. It will be readily recognized that the decisions of the Courts both in this country and in England respecting the construction and interpretation of wills directly affects the administration of estates of deceased persons as well as the preparation of wills of living persons. Consequently, as decisions are reached by the Courts, their effects are studied by the Office Solicitor, and an appropriate note or memorandum circulated for the information of the staff. 90. Three English cases on the subject of wills may here be mentioned. In In re Leach, Milne v. Daubeny (1.923, 1 Ch. 1.61), it was held that the cost of packing and delivering specific legacies must be borne by the specific legatees concerned, and not by the residuary estate of a testator. Frequently the gifts of annuities are expressed to be " free of deductions," " free of charges," or the like. In In re Shrewsbury Estate Acts, Shrewsbury v. Shrewsbury (1923, 1 Ch. 486), it was held that whether an annuity is given free of income-tax is a question depending in each case on the construction of the particular instrument, and that the mere fact that such a gift is made free of deductions, although accompanied with an express reference to taxes generally, does not necessarily mean that income-tax is made a charge on the testator's estate to the exoneration of the particular annuity. Gifts to charities are specially favoured by the law. Such gifts are not subject to the ordinary rule against perpetuities, nor will a charitable gift fail because of uncertainty. In In re Davis, Thomas v. Davis (1923, 1 Ch. 225), a testator gave his residuary estate in trust to apply the same for the benefit of one or more charitable or public institutions as the trustees should in their discretion determine. It was held that as part of the objects were not necessarily charitable (but merely " public "), and as the whole of the funds might have been diverted to such non-charitable objects, the whole gift must fail for uncertainty.