TERMS OF A WILL

Evening Post, Volume CXII, Issue 9, 10 July 1931, Page 5

TERMS OF A WILL

OLD FARMER'S ESTATE

TESTATOR'S INTENTIONS

Whether tho late Francis Smedley' Taylor, retired farmer, of, Canterbury, intended one-half of his residuary estate to be divided amongst .the child and grandchildren of his late sister, Sarah Baker, or amongst the children of his late niece, Sarah. Ann Bacon (nee Baker) was a question the Court of Appeal was asked to decide yesterday when Joseph Charles Taylor Baker (son of the late Sarah Baker), builder, of Christehurch, appealed against a judgment delivered in Christchureh by Mr. Justice Adams. ™ . » There were on the Bench the Chief Justice (Sir Michael Myers), Mr. Justice Herdman, Mr. Justice Blair, and Mr. Justice Kennedy. . Mr. A. W. Brown (Christchureh) appeared' for the appellant; Mr. M. J. Gresson ' (Christchureh) ■ for • Ernest Smedley Taylor, executor and trustee of the will; and Dr1. Haslam (Christchurch) for beneficiaries under the will. : It was shown that the testator made his last will on 11th July, 1929, being then upwards of 91 years of age, and seriously ill. The value of his estate was assessed for estate duty .at £29,773. HOW THE QUESTION AROSE. "The question arises in this way;" said Mr. Justice.Adams in his judgment. '' The testator had a sister . named .Sarah,-whose married name was Baker, and a niece named Sarah Ann, who was a daughter of the sister Sarah. The sister lived at Crich, in Derbyshire, until her death in 1897. There is no evidence that she and the testator ever corresponded. The niece lived at Crich until.-her niarriage to John Richard Stevenson, and then removed to Idridgehay, and on her second marriage to James Bacon removed to likes-' ton, both these places being in, Derbyshire. She died at Ilkeston in. 1912. All her surviving children, reside at Ilkeston." ■ ' - '■'. : \ . His Honour said that the admissibk evidence satisfied him that the' persons designated by the testator were the children of his niece Sarah Ann. The alternative to that would in hia Honour's opinion be to hare held that the description could not apply -to either claimant. His, Honour held that the one-half of the residuary estate .was to be divided among the children.of the testator's late niece, Sarah Ann1 Bacon. .; SOUND OF "BACON" AND "BAKER," Mr. Justice Blair suggested that "Bacon" and "Baker" spoken by an old man who did not have his "teeth in" might sound similar. ; The Chief Justice: "But there is no evidence that he didn't have his 'teeth in".*" (Laughter.) Mr. Brown submitted that on the face of the, will and any other surrounding circumstances that could be brought into evidence, it was clear that the gift was to gof to- the children of the testator's sister. The only, evidence that had been put before, the, Court to show that the will had another meaning . was the declarations of intention to the trustee which, counsel submitted,: was quite inadmissible.. : ~. : . Dr. Haslam submitted that the testator could not possibly have had the appellant in mind, and that there Was sufficient admissible evidence to justify the Court'holding that the persons intended were his clients alone. It was further submitted by Dr. Haslam that the reference in the will to "children," "attaining the age of 21," and "disposal of the capital, both residuary and annuity funds," was against the appellant's claim; secondly, that the knowledge the' testator had and the disposition of the testator in favour of the respondents made it more than likely they were the parties intended to benefit; and, thirdly, that the previous will was evidence the Court might accept to identify the respondents as the class mis-described in the last will. , _ Beyond making two or three observations for the possible assistance of the Court, Mr. Gresson confined himself to the question of the trustees' costs. The Court reserved its decision.