PROBLEM SOLVED

Taranaki Daily News, 23 March 1935, Page 9

PROBLEM SOLVED

POSTHUMOUS CHILDREN. QUESTION OF SURVIVAL. A will problem arising out of the birth of a posthumous Child of a father who died intestate was solved by a judgment delivered in the House -of Lords recently. The question which had to be answered was whether the father, Thomas William Henry Elliot, who died intestate in May. 1932, “left any issue him surviving.” Mr. Justice Clauson, in the Chancery Division, held that the child did “survive” the father, and that decision was affirmed by the Court of Appeal. The appeal to the House of Lords was heard before Lord Tomlin, Lord Russell of Killowen and Lord Macmillan. Mr. Robert Barnewall Elliot, of Golden Grove, Carmarthen, who claimed to be benficially interested under wills if John Joicey and Rose Elliot, was the appellant. The respondents were Lord Joicey, the Hon. John Pakenham Joicey and Mr. E. C. M. Thompson, trustees of the will of John Joicey, and Mr. J. G. Greenshields Leadbetter, judicial factor on the estate of Thomas William Henry Elliot, father of the posthumous child. The question of administration involved was whether a share of a legacy of £50,000 and of the residuary real and personal estate of John Joicey now belonged to Mr. Leadbetter, the representative of the estate of the posthumous child’s father, or accrued to Mr. Robert Barnewall Elliot (the appellant) and his brother. In the way the question had been answered by Mr. Justice Clauson and the Court of Appeal the share went to the estate of the posthumous child’s father. ORDER VARIED. The order was allowed and the order of Mr. Justice Clauson was varied by declaring that the funds in question belonged in equal shares to the two brothers of the father of the posthumous child (Robert Barnewall Elliot and James Kerr Elliot). As, however, James Kerr Elliot had not appealed, the order of Mr. Justice Clauson was binding as against him and he could take no interest in the funds. The costs were directed to be paid out of the funds. Lord Tomlin, in his judgment, said the attention of the Chancery Court and the Court of Appeal was not directed to the fact that Mrs. Elliot was domiciled in Scotland and that her will fell to be construed by Scottish law. The critical words were: “in the event of such child of mine leaving any issue him or her surviving” and “in the event of such child of mine not leaving any issue him or her surviving.” “I cannot think,” said Lord Tomlin, “that, upon the true construction of these words, a posthumous child of a child of the testatrix is issue left by the parent surviving. The expression is not, in its ordinary and natural meaning, appropriate to include a posthumous child.” Lord Tomlin added that it was . not permissible to adopt a meaning to give effect to what might be thought would have been the wish of the testatrix if her attention had been called to the possibility of that happening which in fact happened. The child could not take any benefit directly under the gift. Lord Russell of Killowen and Lord Macmillan delivered assenting judgments.

' The judgments in the Courts below were mainly based on the special benevolence which the law had always shown toward posthumous children, but Lord Macmillan thought that principle had been misapplied in this case.