Henderson v Henderson

• Jurisdiction: Ireland
• Court: Chancery Division (Ireland)
• Judge: Kenny, J.,M. R.
• Judgment Date: 17 June 1904
• Docket Number: 1904. No. 362.
• Date: 17 June 1904

Henderson

and

Henderson.

Kenny, J. (for M. R.)

1904. No. 362.

CASES

DETERMINED BY

THE CHANCERY DIVISION

OF

THE HIGH COURT OF JUSTICE IN IRELAND,

AND BY

THE IRISH LAND COMMISSION,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL.

1905.

Description — Name — Surrounding circumstances — Will — Latent ambiguity — Extrinsic evidence.

A testator gave property on trust for “his grandsons Robert William. Henderson and John Barnett Henderson, or the survivor of them, in case they or he shall attain twenty-one years.”

One of testator's grandsons was named Robert William Henderson, son of Oliver Henderson. Testator left two other grandsons (the sons of a deceased son) named William Robert Henderson and John Barnett Henderson.

Held, that extrinsic evidence was admissible to show that William Robert Henderson was the person really intended in the will.

Adjourned Summons.

By his will, dated 10th August, 1901, John Henderson bequeathed all his property to trustees in trust for conversion, and as to the proceeds thereof, after payment of testator's debts and certain pecuniary legacies, and an annuity of £100 to his wife, upon trust “for my grandsons, Robert William Henderson and John Barnett Henderson, or the survivor of them, in case they or he shall attain the age of twenty-one years, and in case they or he shall not attain the age of twenty-one years, then in trust for my daughters Mary Stewart and Grace Gray.”

The testator died June 4th, 1903. He left (amongst other grandchildren) three surviving grandsons, one named Robert William Henderson, a son of testator's son, Oliver Henderson. Two other grandsons were named William Robert Henderson and John Barnett Henderson, sons of a deceased son of testator named Robert William Marshall Henderson.

The will contained this recital:—“As I have recently given to my son Oliver Henderson the sum of £1023, which I consider an ample provision for him, I do not leave him anything by this my will.” The legal question arising for decision was—as to whether extrinsic evidence was admissible to show that William Robert Henderson, the brother of John Barnett Henderson, was the person intended to be a beneficiary under the will of the testator, and not Robert William Henderson, the son of Oliver Henderson.

Jellett, K.C., and Gaussen, for the executors and trustees of the will of John Henderson.

Wylie, K.C., Henry, K.C., and Glover, for William Robert Henderson:—

In order that the Court may be placed in the position of the testator, and so ascertain the proper application of the language he has used, extrinsic evidence is admissible to show the surrounding facts and circumstances and habits of the testator at the date of his will, and what was his knowledge of the surrounding circumstances, and the names by which persons having a claim on his bounty were known to him. The evidence in this case raises a question of latent ambiguity on the will, even although there is a person precisely answering the description in the instrument: Charter v. Charter (1); Grant v. Grant (2); Andrews v. Andrews (3). In The Goods of Ashton (4) extrinsic evidence was admitted for the purpose of showing that an illegitimate son of testator's sister was

intended by the description “my nephew, George Ashton.” On the question of construction: see Seale-Hayne v. Jodrell (1). In In re Wolverton Mortgaged Estates (2) (as in this case) there was only one person precisely answering the description in the will, yet parol evidence was admitted to show that he was not the person really intended to be benefited.

[Counsel also referred to In re Taylor; Cloak v. Hammond (3); In re Noble's Trusts (4); Healy v. Healy (5); Doe d. Hiscocks v. Hiscocks (6); Doe d. Allen v. Allen (7); In re Feltham's Trusts (8); Flood v. Flood (9).]

T. Pakenham Law, K.C., and Patchell, K.C., for Robert William Henderson:—

There is no latent ambiguity, and extrinsic evidence is not admissible. On the face of the will there is no ambiguity. There is a person who precisely answers the description in the will. To admit parol evidence in this case would be to create an ambiguity: Bernasconi v. Atkinson (10).

In Grant v. Grant (11) there was a latent ambiguity because there were two persons of the same name, either of whom would answer the description in the will nominatim. Here there is only one Robert William Henderson. In re Wolverton Mortgaged Estates (2) merely shows that Tom is the same name as Thomas. There was a latent ambiguity which had to be explained, and in that case, and in Charter v. Charter (12), it appeared from the wills in question that the persons prima facie answering the description were not the persons intended. In Cloak v. Hammond (3) neither claimant was correctly described in the will: Wigram on Extrinsic Evidence, Propositions i., ii., iii., v.; Delmare v. Robello (13); In the Goods of Peel (14); Holmes v. Custance (15); Phelan v. Slattery (16).

[See also the following cases:—In re Fish; Ingham v. Rayner (1); Wells v. Wells (2); Sherratt v. Mountford (3); Miller v. Travers (4); Dawson v. Higgins (5).]

Jellett, K.C., and Gaussen, for the executors and trustees of the will of John Henderson.

Wylie, K.C., Henry, K.C., and Glover, for William Robert Henderson:—

T. Pakenham Law, K.C., and Patchell, K.C., for Robert William Henderson:—

Kenny, J.:—

The question for decision on this originating summons arises on the will of the late Mr. John Henderson, who died on the 4th June, 1903. At the date of his death he had two grandchildren, the one named William Robert Henderson, and the other John Barnett H. Henderson, both being children of testator's deceased son, Robert William Marshall Henderson. He had also a grandson named Robert William Henderson—one of several children of testator's son, Oliver Henderson. This Oliver Henderson survived his father. By his will dated the 10th August, 1901, the testator bequeathed all his property to trustees in trust for conversion, and as to the proceeds, after discharging his debts and pecuniary legacies, and an annuity of £100 to his wife, in trust for his “grandsons, Robert William Henderson and John Barnett Henderson, or the survivor of them, in case they or he shall attain the age of twenty-one years; and in case they or he shall not attain the age of twenty-one years,” in trust for testator's daughters, Mary Stewart and Grace Gray. The will contained a maintenance and education clause which empowered the trustees to pay the income of the share coming to a grandson “to the parent or guardian of my said grandsons respectively”; but I am not inclined to attach any weight to it as an explanatory context. The will also contained a recital that as the testator had recently given to his son, Oliver Henderson, the sum of £1023, which he considered an ample provision for him, he did not leave him anything by his will. Prima facie the...