having only a white horse, where the word "black" shall be rejected (g).

calculation

*Again, where the intention of the testator is plain, a mistake in his calculation72 shall not defeat that intention. Thus Where intention in Milner v. Milner (h), Sir W. Milner bequeathed a plain, a mistake legacy in this manner: "I give my daughter Mary will not defeat it. 3,500l., which with 6,000l. she is entitled to by my marriage settlement, and 5007. from her father-in-law, make up 10,000l., which I design for her fortune:" In fact she was entitled only to 5,000l. by the settlement: And Lord Hardwicke held, that she was entitled to have 4,500l. under the will. Again, in Ouseley v. Anstruther (i), a testator after reciting, inaccurately, that his wife was entitled for life to 39,000l. settled on his marriage, which he stated would, at four per cent., yield 1,5607., directed his trustees to add an annuity of 4407. to raise her jointure to 2,000l.: And it was held that she was entitled to have her annuity made up to 2,000l. at all events (k).

So in Trevor v. Trevor (1), a testator gave his wife an annuity of 1007. and the sum of 1,000l., which he considered would, with the property she was entitled to after his death, make up to her an income of 2,500l. a year. In fact those gifts made up her income only to

(g) See also Swinb. Pt. 7, s. 5, pl. 16. Selwood v. Mildmay, 3 Ves. 306, 310, and the remarks on this case of Tindal, C. J., in Miller v. Travers, 8 Bingh. 252, and of Lord Langdale, Lindgren v. Lindgren, 9 Beav. 362, 363, 365. Gallini v. Noble, 3 Meriv. 691. Alford v. Green, 5 Madd. 92. King v. Wright, 14 Sim. 400. Howard v. Conway, 1 Coll. 87. Purchase v. Shallis, 2 H. & Tw. 354. Quennell v. Turner, 13 Beav. 240. Goodlad v. Burnett, 1 Kay & J. 341. Edmunds . Waugh, 4 Drew. 275. Waters v. Wood, 5 De G. & Sm. 717. Thompson v. Whitelock, 4 De G. & J. 490. Morgan v. Middlemiss, 35 Beav. 278. Ives v. Dodgson, L. R. 9 Eq. 401.

72. Thus, by a bequest of "the remaining two-fifths" one-fifth (which was all that remained) was intended. Ellis v. Fairbanks, 132 Mass. 485. So, a bequest to A. and B. of "the two mort

gages which I now hold on their property" carries three mortgages which the testator then held on their property, but the testator's intention cannot be shown by proof of his instructions to the scrivener. Cleveland v. Carson, 10 Stew. (N. J.) 377.

But a bequest of one mortgage" on A. will not pass two, nor will mortgages by A." (who had executed two mortgages) to testator include a third mortgage by A.'s wife, Johnson v. Goss, 128 Mass. 433; and it cannot be shown by the evidence of the scrivener that testator intended two-thirds of a certain property in a devise by him of onethird, the context not indicating such intention. Jones v. Jones, 2 Beas. 236. (h) 1 Ves. Sen. 106.

(i) 10 Beav. 459.

(k) See also Read v. Strangeways, 14 Beav. 139.

() 5 Russ. 24.

[*1068]

1,800l. a year: And Sir John Leach, M. R., held, that she was entitled to have the deficiency supplied out of the testator's residuary estate. Again, in Jordan v. Fortescue (m), a testator by a codicil gave to a legatee "5007. in addition to 1,500l. which I had before bequeathed to him: " The testator had in fact bequeathed to him 1,000l. only: And it was held that the legatee was entitled to 2,0007. by implication.

But in a late case, where a testator after reciting that he had advanced to a legatee a certain sum directed that sum to be considered as a payment on account of the legacy, and the *advance in fact made was less than the sum recited as having been advanced, the legatee was held to be bound by the erroneous recital, and the sum mentioned by the testator was deducted from the legacy (n).

And it has been held that where a testator has given a certain sum as a debt due to the person to whom he gives it, the circumstance that he does not owe to that person so much as he has given will, in the absence of evidence of intention to confer a bounty on the donee, either express or to be inferred from the whole will, cut down the amount of the bequest to the amount of the debt actually due from the testator. Thus in Wilson v. Morley (o) a testator directed his debts to be paid, "including a debt of 300l. owing from me to my daughter." He owed his daughter 1507. only. It was held that she was not entitled to receive more than the 150%.

The rules, which there already has been occasion to state (p) as to Admissibility of the admissibility of evidence of extrinsic facts, and of evidence to ascer extrinsic evidence of intention, in order to enable the tain the thing bequeathed. court to identify the person intended by the testator to be the object of his bounty, are equally applicable, mutatis mutandis, as to the admissibility of such evidence for the purpose of making certain the thing intended to be bequeathed by him (2).

(m) 10 Beav. 259.

(n) Re Aird's Estate, 12 C. D. 291. This was followed in Re Wood, 32 C. D. 517, in which case Re Taylor's Estate, 22 C. D. 495, was referred to in argument as in effect overruling Re Aird. North, J., however, held that he was not bound by Re Taylor, inasmuch as that case did not in terms overrule Re Aird, and as the decision of the Court of Appeal therein was based on the very special words of the will and codicil.

(0) 5 C. D. 776. In this case Fry, J., distinguished the case of Whitfield . Clemment, 1 Mer. 402, on the ground that in that case there was inferred an intention to confer a bounty. (p) Ante, p. *1012, et seq.

(7) See further, on this subject, Lindgren v. Lindgren, 9 Beav. 358. Ricketts v. Turquand, 1 H. L. C. 472. Webb v. Byng, 1 Kay & J. 580. Hewson v. Reed, 5 Madd. 431. See also Castle v. Fox, L. R. 11 Eq. 542. If, on

Property con

tracted for by tes

tator will pass by a description of it

as testator's actual property.

*It may here be observed that what a party is entitled to under a contract he may well be taken to consider as his own. Thus lands contracted for will pass by a general devise of all the testator's lands and of all the lands purchased by him, although he had other lands purchased and actually conveyed (r). And so if a testator contract for the purchase and transfer of a particular description of stock, and then bequeaths all he possesses or has of such stock, it will pass (s). So if a testator, having contracted for the purchase of a large quantity of wool, should make his will, bequeathing to one person all his personal estate except his wool, and to another all his wool, this would be a good bequest of the wool, although the party contracting to sell it had it not himself, but had to procure it to enable him to fulfill his contract (t).

*SECTION V.

Of legacies vested or contingent.

There has already been occasion to show (u), that contingent and executory interests, though they do not vest in possession, may vest

such evidence being admitted, it appears that there was property correctly answering to the specified description, no evidence can be admitted to show that the bequest was intended to apply to other property: Horwood v. Griffith, 4 De Gex, M. & G. 708, by Lord Justice Turner. Webber v. Stanley, 16 C. B. N. S. 698. Two rules which have been laid down with reference to uncertain description of lands the subject of devises, and the admissibility of extrinsic evidence, seem equally applicable to bequests of personalty. These rules are firstly that, when a devise is made in terms which apply specifically to a definite subject, the operation of that devise cannot be extended beyond the very terms in which it is expressed; nor can evidence be resorted to for the purpose of showing that something different from the description was intended by the testator. Secondly, that if the words of description when examined do not fit with accuracy, and

if there must be some modification of some part of them, in order to place a sensible construction on the will, the whole thing must be looked at fairly, in order to see what are the leading words of description and what is subordinate matter, and for this purpose evidence of extrinsic facts may be regarded. Whitfield . Langdale, 1 C. D. 61, 74. Hardwick v. Hardwick, L. R. 16 Eq. 168, 175. See also Gordon v. Gordon, L. R. 5 H. L. 254. Hall v. Hill, 4 Ir. Eq. Rep. 27. Millard v. Bailey, L. R. 1 Eq. 378.

(r) Acherley v. Vernon, 10 Mod. 518, 526.

(8) Collison v. Girling, 4 M. & Cr. 63, 75. See also Ellis v. Eden, 25 Beav. 482.

(t) Collison v. Girling, 4 M. & Cr. 74, 75. See also Field v. Peckett, 29 Beav. 573, where cabinets ordered and made but not delivered to the testator before his death passed under a bequest of "furniture."

in right, so as to be transmissible to the executors or administrators of the party dying before the contingency on which they depend, takes effect But where that contingency is the endurance of life of the party till a particular period, the interest will obviously be altogether extinguished by his death before that period.

The object of the present section is to ascertain the circumstances under which a legacy is to be regarded as a vested Object of section. interest, or as contingent on the event of the endurance of the life of the legatee: or, in other words, in what cases the interest in a legacy will be so fixed as to be transmissible to the executor or administrator of the legatee, though he die before the time arrives for the payment of the money; and on the other hand, in what cases the legacy will lapse by the death of the legatee.

General principle as to lapse of leg acies by death of legatee.

The general principle, as to the lapse of legacies by the death of the legatee, may be stated to be, that if the legatee die before the testator's decease, or before any other condition precedent to the vesting of the legacy is performed, the legacy lapses, and is not payable to the executors or administrators of the legatee. It is proposed, in pursuing this subject, to treat, 1st. Of legacies lapsed by the death of the legatee before the death of the testator: 2ndly. Of legacies lapsed by the death of the legatee after the death of the testator: 3rdly. Of the lapse of legacies charged on a real fund: 4th. Of the lapse of legacies charged on a mixed fund of realty and personalty.

*1. Of legacies lapsed by the death of the legatee before the testator. It has been established from the earliest periods, both in the General rule that ecclesiastical courts and in equity, that unless the legatee survive the testator, the legacy is extinguished:1 neither can the executors or administrators of the leg

unless the legatee

survive the tes

tator the legacy lapses:

1. "The liability of a testamentary gift to failure (or, as it is generally termed, lapse) by reason of the decease of its object in the testator's lifetime, is a necessary consequence of the ambulatory nature of wills; which, not taking effect until the death of the testator, can communicate no benefit to persons who previously die," 1 Jarman on Wills 617; 2 Redfield on Wills 157; 1 Roper on Legacies 463; Theobald on Wills 442; 4 Kent 541; Gore v. Stevens, 1

Dana 205; Alexander v. Waller, 6 Bush 341; Ballard v. Ballard, 18 Pick. 41; Comfort v. Mather, 2 Watts & S. 450; Prescott v. Prescott, 7 Metc. 145: Birdsall v. Hewlett, 1 Paige 32; Trippe v. Frazier, 4 Har. & J. 446; Dunlap r. Dunlap, 4 Desaus. 314; Davis v. Taul, 6 Dana 52; Martin v. Lachasse, 47 Mo. 591; Glenn v. Belt, 7 Gill & J. 362; Torrance v. Torrance, 4 Md. 11; Lefler v. Rowland, Phill. Eq. 143; Tongue v. Nutwell, 13 Md. 415; Perry v. Logan,

atee demand the same (v). And Swinburne puts the case of the testator and legatee being drowned in the same ship, or both being struck to death by the fall of a house, in which case he lays it down, that as they both died at the same time, the legacy is not due, and consequently not transmissible to the executors or administrators of the legatee. In cases of this kind the question of survivorship is, by the law of England, a matter of evidence merely, and, in the absence of evidence, there is no rule or conclusion of law on the subject: 2 And as the onus of proof lies on the representatives of the