INTERPRETATION of WILL

Dominion, Volume 19, Issue 119, 13 February 1926, Page 24

INTERPRETATION of WILL

A DAUGHTER’S INTEREST

COURT DEFINES POSITION "I direct that in case she (Annie Milton, now Annie Linklater) shall niarrv. that mv executors shall so order that her husband or husbands she may inter-marry with shall have no power or right to sell, dispose of or mortgage the property, but it shall be for my daughter Annie’s use and for her children’s, but should my daughter die without issue. I will that Thomas Milson. of Asterby, Lincolnshire, England, shall inherit the property, or his heirs.” So ran the will made in 1888 of Robert Milson, Bunnytliorpe, near Palmerston North. The testator died in 1909, leaving landed property now valued at about £31,000. His daughter, who was born before the date of the will, married Joseph Linklater in 1903. “What is the nature and extent of the interest taken by the defendants Annie Linklater and each of the children in the realty?” was the question set for the determination of the Supreme Court on an originating summons. It was suggested that there were four possible constructions, viz., that defendant Linklater takes (1) an absolute interest, (2) an estate for life with remainder to her children, (3) an estate tail, or (4) jointly with her children. Reserved judgment on the question was delivered yesterday by Mr. Justice Alpers.

“What the testator seems to me to have had in mind,” said His Honour, “was this: He had an only child, a daughter, probably quite a young girl in 1888. As his means then were, he thought £lOO a year, together with the use of a house and furniture, would be enough provision for his widow. The rest of his property he desired to give to his onlv child ‘for her sole use and benefit.’ 13ut when he had reached that point it occurred to him that she might still be a young and inexperienced girl at his death, possibly bereft of mother as well as father; she might make an unwise marriage with a man who would squander her estate, and this, in spite of the provisions of the Married Women’s Property Act, passed four years earlier, but quite possibly unheard of bv him. So it occurred to him to direct his executors to ‘so order’ that in the event of his daughter’s marriage after his own death the property should be settled. He had in mind, hot so much to cut down the absolute interest he had already given to his daughter, as to prevent a future husband or husbands from dissipating her fortune. “If this is the right view of the testator’s intention, as gathered from the language employed by him,” proceeded His Honour, “is there any rule or decision which compels me to adopt a different view ? No principle of construction is more clearly established than this: that where there is a clear gift in express terms in one part of a will, it cannot afterwards be cut down except bv words which indicate with reasonable certainty the intention of the testator to take back or reduce that which he has already given. I do not think the words following ‘and I direct’ do clearly indicate an intention to cut down the prior gift of ‘all my landed property . . . for her sole use and benefit,’ I agree with counsel for defendant, Annie Linklater, who contended for the construction I have accepted that the direction to ‘mv executors’ shows that it was onlv oil a marriage after the testator’s death, that he desired to. limit the estate already given without limitation. The added words therefore amount to an attempt by the testator to divest the estate of his daughter upon the happening of a condition subsequent—her marriage after his death. But she had been married six years before his death, presumably to a husband of whom the testator approved. He had therefore six whole years in which he might himself have done that which he directs his executors to do, either by making a new will or a codicil to the present will. He dispensed tiierefore in his life-time with performance of the condition. “I answer the first question in the summons, therefore, ‘an estate in fee simple.’ ”