Before Sir Ricuarp Ressre, Chief Justice, Shanghai, 8th January, 1890.
In the matter of the will of Hexny McCtrery Buow, deceased.
Mr. H, 8. Winkixsos was for the petitioner, Mr. Warsewxrcur for Annie Blow and Alice Blow, (children of the deceased), and Mr, Dowbaut for Ann Hardy Blow and H, St, Clair Knox (the sister and nephew of deceased).
This was a case in which the executor under the will ut Mr, Henry MeCleery Blow late of Tientsin, comes to the Court to have that instrument interpreted, under the circumstances sot out in the petition. The will was drawn by the late Mr, John Bailey, an accountant, and at one time lawyer's clerk here. The case is an instance of the danger of entrusting to incompetent hands the drawing of wills. The petition was worded as follows The humble petition of Tisdull of Shanghai, master marin as follows 1. henry McCleery Blow, late of Tientsin, in China, deceased, duly made his last will dated the 30th day of June 1887, and appointed Robert M merchant, of Shanghai, Ernest Walter Tisdall, the petitioner, and Henry St. Clair Knox, of Tientsin, aforesaid, the nephew of the testator to be the executors and trustees of his said will.
2—'The said testator died on the 6th day of August 1888 without having revoked or altered his said will, The said will was duly proved by the said Ernest Walter Tisdall alone on the 15h day of August 1888 in Her Britannic Majesty's Court at Tientsin.
4.—The said Robert Mackenzie and the suid Henry St. Clair Knox have renown probate of the said will and have disclaim the trusts thereof.
5.—The testator by his suid will after certain bequests devised and bequeathed the residue of his real and personal estate to the said executors and trustees in trust for sale and conversion and after the payment of the said bequests and the payment (out of such part of the personal estate as should consist of money) of his funeral and testament: expenses and debts to invest 10,000 taels for the maintenance und education of his reputed daughters Annie and Alive during their minority and thereafter the suid sum to be distributed as in the suid will directed and after the declaration of such trusts the said will contains directions expressed in the words following, that is to say And as to all the rest and residue of my real and personal estate I direct my trustees mother of my reputed daughters Annie and to pay therefrom to the said Lin Qui the Alice during her life time the sum of one inundred and eighty dollars per annum by equal monthly instalments of fifteen dollars per month and after having made due provision for the payment of this sum Z direct my trustees and executors to pay to each of my said reputed children Annie and Alice upon their becoming of age or marriage their heirs executors or administrators one clear half share of the net proceeds thereof and I further direct my trustees and executors to pay the remaining clear half net proceeds thereof to my sister Ann Hardy Blow and to my nephew Henry St. Clair Knox, their heirs, executor, administrators or assigns and as they may by will or other disposition direct or appoint."
6.—The said reputed child of the testator Annie Blow is of the age of 17 years or thereabouts and the said reputed child Alice is of
said children reside at Shanghai within the the age of 13 years or thereabouts, Both the jurisdiction of this Court.
7,—The said Ann Hardy Blow resides at 1, Highfield Terrace, Brookfield Road, Birtningham, in the county of Warwick in England. Robert Mackenzie, of Shanghai, merchant, is the attorney to act for her in the matter of the trusts of the said will, 8.—The said Henry St. Clair Knox resides Tientsin within the jurisdiction of this Court.
The opinion, advice or direction of this Honourable Court is desired upon the following question:
.—Whether the said Ann Hardy Blow and Henry St. Clair Knox are entitled toa half share or any other and if any other what share of the residue of the monies arising or to arise from the sale and conversion of the testator's real and personal estate after the payment of his debts and funeral and testamentary expenses and the legacies given by his Wi Whether if the said Ann Hardy Blow and Henry St. Clair Knox are entitled to any such share, such share is payable to them jointly or if not how otherwise. such share to the said Ann Hardy Blow anc 3.—Whether the petitioner ought to pay Henry St. Clair Knox, and if so when.
4.—Whether each of the said reputed children Annie and Alice is entitled to an interest (vested or contingent) in one-half share of such residue or only in one-fourth share or in any cther and if in any other what share of such residue.
3.—Whether such share is vested or contingent upon their becoming of age or marriage.
6—In what manner the costs of this application should be paid or provided for.
Mr, Winxrysos said that he appeared for Capt. Tisdall, one of the executors and trustees under the will of Henry McCleery Blow, deceased. The present suit was brought under the Trustee Relief Act in order to obtain the opinion of the Court upon the construction of the will of the deceased, probate of which he now handed in, The instrument had been drawn by a gentleman, who had been in the habit of preparing wills, but who was not a practitioner of this Court, and was now deceased. 'The trustee and executor was one of three trustees and executors appointed by the will, the other two, Mr, Robert Mackenzie and' Mr, Henry St. Clair Knox, having renounced probateand having also disclaimed the trusts of the will, and he now put in the two formal disclaimers. The trustee was practically the guardian of the infant children, but with respect to the matters before the Court it was his duty to be impartial, and as the two parties were both well represented here, he propused to leave the argument of the questions t them, Mr. DowaLt suggested tizat the learned counsel for the trustee should state his views of the case.
Mr. Winx1xsox said that he was prepared to give any information the Court might ask him for, but did not think that he ought to offer any argument at the present stage.
Mr, Dowpatt in this case they had will containing two bequests which are, on account of the words each of" in the prior of them, inconsistent with each other. He submitted that the Court should look for the intention of the testator in the general tenour of the instrument, that passages irre-canellable with the general context should be rejected; that in case of absolute impossibility of letting two inconsistent dispositions stand, the ulterior should prevail, but that if the prior can be controlled by the second so that both may stand, this should be done. The will could hardly precision. be said to have been drafted with much
Mr. WatxewnicutT—I consider it rather an ambitious fight for the worthy old gentleman who drew it, and not nearly so bad as some efforts of the same sort I have come across.
Mr. Dowpatz—The testator is made to say that he sets aside a certain sum for the maintenance und execution" of his children. Of course if this request were to take. effect, there would be no doubt about my clients getting their half share of the estate. He then cited the cases of Sherrat Bentley 2 Milne and Keene 149; Brockle-bank v. Johnson 20 Bevan 205, and submitted that the Court ought to makes decision that the words " each of" should be rejected as having been inserted by mistake.
Mr. WarvewxiGer said that there was also the question as to whether the infants were joint tenants or tenants in comm on, but perhaps that question might as well be left to be dealt with hereafter if necessary. As to Mr. Dowdall's argument he did not think he could usefully contend against The Chief Jvstice—You admit that your clients can only receive one-fourth from the estate?
Mr, Warnewricut—Yes, Mr. Witxixson—I would suggest that without solemn argument nothing should be decided beating upon the question as to whether the legacy to the infants was to them as joint tenants or as tenants in common.
After some further argument his Loxpsup made an order that Ann Hardy Blow and Henry St. Clair Knox are entitled to one half of the residue of the testator's estate, and that Annie Blow and Alice Blow are entitled to the other half in equal shares. The question as to whether in joint tenancy or as tenants in common, and whether vested or contingent, was to stand over by consent, with liberty to either party to apply, costs of all parties to be paid out of the estate.
Text read from the printed page and cleaned; old type leaves the occasional error.