INTERPRETATION OF A WILL.

Otago Witness, Issue 2896, 15 September 1909, Page 12

INTERPRETATION OF A WILL.

The following is bis Honor Mr Justice Williame's judgment in the case of the Trustees, Executors, -aotf Agency Company v. H. W. Bftyley and often:— The question -to be decided on this originating summons is whether - the defendant Henry William B&yley, under the bequest to him contained in the will of Mr 3 Smith, » entitled to the shares in banking, mining, and other companies standing m his name a« the. time of the deatk of the t«statf ix and belonging to the testatrix. Mrs Simfth mode her will on tie Ist of May, 1884, and appointed the plaintiff company her executors. Mrs Smith died in February, 1907. The will contained a- bequest -to Mr Bayiey in the words ■ following : — " All such portion of my personalty as consists at tbe present time of scares m various banking and mining and other companies 4-nd now standing in such companies in the name of Henry William Boyiey,, of, Hob*rt, afnd in respept of which I hold his declaration of trust, I bequeath to the said Henry William Bayley. in consideration of the great attention be has for several years past bestowed in the management afid conduct of my/ affairs/ Mr BiyJey was and is a stock and sharcbroker in Hobart. About the year 1882 Mrs Smith invested over £8000 in the purchase of elhares in various mining, basking, and comm&xeial- companies, and placed the shares in Mr Bayley's name. Mr Bayley says, that she at the same time gave him authority in his discretion to sell all or any of raem, and from time to time to substitute- other shares in the place of those sold. It does not appear whether there bed or had not been any change in the original investments prior to the date of the will. The declaration of trust mentioned in the will was in the form of a letter gives by Mr Baylev to Mrs Smith, but which cannot now be found. After the date of* the will throughout Mr& Smith's lifetime and unti) "after her death in 1907 the investments were from time to time varied with the knowledge and consent of .Mrs Smtih. The dividends on the investments were received by Mrs Smith during ncr life with the exception of such of them as were applied with her authority to the payment of calls on shares bought. No part of ttbe capital interest was withdrawn' by Mrs Smith, nor did she invest any additional capital in this way. At the time of Mis Smith's death the value of the shares belonging to her invested in Mr Bayley's name was about . £4150. At the time of Mrs Smith's death none of the shares held by Mr Bayley were identical with those held by him at* tne date of the will. The question is whether the bequest to Mr Bayley is only of the -shares neld by him at the date of the will or whether it extends to the shares held by him at the time of the death of the testatrix. In the former case, as the shares then held were disposed of in Mrs Smith's lifetime, the legacy would have been adeemed and the bequest would have become inoperative. From either point of view the legacy is specific. If it is a legacy of that portion of Mrs Smith's property held by Mr Bayley which is subject to his declaration of trust then, if at the time of the death of the testatrix Mr Bayley had held no property belonging to her, the legacy would have been adeemed and Mx Bayley would have got aothimg. The question is not whether the legacy is or is not specific, but what, upon ihe true construction of- the bequest, is the subject matter of the legacy left to Mr Btyley. To .determine this question cases ase of little value. < It must be determined bf the words oMd by the testatrix, and if these words be ambiguous the circumstances which existed at the time may be looked a* to -assist itfthe determination, lie bequest relew to * declaration of fstist. We do not know the terms of this Seclaration, winch was contained in a letter given, by Mr Bajley to Mrs Smith fc* about the tame the original shares were bought in 188 S. it, m*f have been a declaration thai Mr ~Bayle> hca'd certain specified share* op trust, <or tfaat he held certain shares on tenet witfaopt' «pecif jine what they we», or that he wOukl stead possessed of tin shares bought aoS of any wares substituted for 4wm m trust for Mrs Smith. I think the ■ form of the declaration !« immaterial. If it were in form merely » declaratiogi that Mr Bayley beld certain shares specifically mentioned in it as a trustee for Mm Smith there can 1m no doubt that if tbe shares were told and Mr Beyiey received the money, the BftcWation of trust of ike chares would tnake him a trustee of the money, and if the money were reinvested in other snares !*ronld make him a trustee of *Jqos« shax*s

for Mrs Smith. Whether or no there had bees any change of investment* prior to die date of the will, Mrs Smith certainly considered that the effect of tbe declaration of trust was to niafce Mr Baylev a trustee as well' of substituted as of tiae original shares, because to the knowledge of Mrs Smith Mr Bayiey was for yeazs selling shares and buying others, an-d Mrs Smith nevar asked for any other declaration of trust than the letter originally given. 1% is a legitimate inference t«hat the legal effect of the letter wae to make Mr Bayfcy a trjustee as well of any substituted shares as of tbe original shares, and that Mrs Smith, when she mdc her will, considered that this was the effect of the declaration of trust she mentioned in it. That when she originally invested her xnpney in Mr Bayley's name she contemplated the possibility of changes in her investment* is shown by Mr Bayley's evidence and by. the fact tftat later on be, by her direction, did make changes. It was admitted that if the words " at tbe pxeeank time " bed been oatiibtcd the bequest would have carried the shares held by Mr Bayley a.t the time' of the death of the testatrix, but it was contended that these words confined the bequest to the snares held by him at tie date of the* will, and that therefore the legacy had been adeemed. Ido not Chink that is the effect of these words. The bequest as I read it, is of all such portion of the personalty of the testatrix in respect of which she holds Mr Bayley's deei&raiioir of trust, and which ait the time then present consisted of shares in various banking, mining, and other companies. She had put a considerable portion of her personalty into shares in Mr Bayley's name, and it is the portion of her personalty which she had ao invested that she was bequeathing. At the date of the will it wes invested in shares, but the beqnest waa not of itoe specific shares, but of the portion of her personalty which these shares then represented, and of which Mr Bayley had declared himself to be trustee. In my opinion the bequest covers all the shares in banking, mining, and other companies standing in Mr Bayley's name at the date of the death of the testatrix.