The Curiosities and Law of Wills

by John Proffatt

A bequest by a husband to his “beloved wife,” not mentioning her by name, applies exclusively to the individual who answers the description at the date of the will, and is not to be extended to an after taken wife.[195]

A testator was betrothed to a lady, and by a codicil to his will, after mentioning her name, and alluding to his intended marriage with her, he gave £3,000 to his wife. Before the marriage he died, and it was held that the lady was entitled to the legacy.[196]

A gift to “my servants,” it is thought, will extend to those in testator’s service at the date of the will, though they leave it before his death.[197] Redfield prefers to comprise, by such a phrase, only those who are in the testator’s service at the time of his decease, no matter whether they were his servants at the time of his making his will or not.[198] The best rule would be not to admit those who entered the testator’s service recently before his death, nor those who left before that time, but to hold only those entitled who were in his service when the will was made as well as at his death.

Difficulties sometimes arise from the want of explicitness in pointing out a legatee by a testator, and again from a mistake in naming or designating him. The general rule upon the subject is, that when the name or description of the legatee is erroneous, and there is no reasonable doubt as to the person who was intended to be named or described, the mistake will not disappoint the bequest. The error may be rectified and the true intention of the testator ascertained in two ways: 1. By the context of the will; 2. To a certain extent by parol evidence.

1. The mistake may be rectified by the context. Thus an error in the name of the legatee may be obviated by the accuracy of his description: as where a legacy is given to “my namesake Thomas, the second son of my brother,” and the testator’s brother had no son named Thomas, but his second son is named William, there is sufficient certainty in the description to entitle the second son.

And again, where the testator bequeathed to his brother, Cormac Connolly, and to his two sisters, Mary and Ann, a certain residue, and afterwards by a codicil bequeathed as follows: “To my nephew, Cormac Connolly, the son of my brother, Cormac Connolly, the sum of five hundred dollars for his ecclesiastical education, which sum is to be taken from what I have bequeathed to my brother Cormac, and to my sisters Mary and Ann.” And it appeared the testator never had a brother named Cormac, but that he had a nephew, Cormac, who was the son of his only surviving brother James, who was pursuing classical studies in Ireland with a view to an ecclesiastical education, and who was the only nephew of that name; it was held that the legatee intended by the testator by the name of his brother, Cormac, was the father of his nephew, Cormac, and that his brother James was the person entitled to share in the residuary estate.[199]

So, an error in the description may be obviated by the certainty of the name; as, where a legacy was given to “Charles Millar Standen and Caroline Eliz. Standen, legitimate son and daughter of Charles Standen, now residing with a company of players,” and it appeared they were illegitimate children, their claim was nevertheless supported.[200]

The mistake may, to a certain extent, be rectified by parol evidence. The admissibility of parol evidence in these cases has given rise to much discussion; it forms one of the exceptions to the general rule, not to admit parol evidence where a will is void for uncertainty. This is treated of under the seventh proposition of Wigram on Wills,[201] in a very exhaustive manner, and the cases fully examined. We will merely here point out when such evidence is admissible and when it is rejected. The rule is thus laid down: Where the object of a testator’s bounty, or the subject of disposition, is described in terms which are applicable indifferently to more than one person or thing, evidence is admissible to prove which of the persons or things so described was intended by the testator.

Thus, when a blank is left for the Christian name of the legatee, parol evidence is admissible to supply the omission, as in the case of Price v. Page,[202] in which the testator bequeathed “to —— Price, the son of —— Price, the sum of £100.” No person but the plaintiff claimed the legacy, and he produced evidence from which it appeared that he was the son of a niece of the testator; that his father and grandfather’s names were Price; that the testator had no other relation of that name, and that he had been before frequently the object of the testator’s care; that the testator said he had and would provide for the plaintiff. Upon this evidence, Lord Alvanley determined in favor of the claim.

When the omission consists of the entire name of the legatee, parol evidence cannot be admitted to supply the blank; for that would amount to a bequest by oral testimony. Thus, in Winne v. Littleton,[203] A bequeathed all his personal estate to his executor, leaving a blank, and died without naming any person executor. The legacy was adjudged to be void. And in Hunt v. Hort,[204] a woman devised her houses in the city and at Richmond to her niece, dame Margaret Hort, and Richard Baker, her attorney, in trust to sell. She then gave some pictures specifically, and thus proceeded: “My other pictures to become the property of Lady ——.” The testatrix then made her niece, Harriet Hunt, her residuary legatee, and appointed Lady Hort and Richard Baker her executors. Lord Thurlow was of opinion that he could not supply the blank by parol evidence, and observed that, where there was only a title given, it was the same as a total blank.