The chapter proceeds to set out basic rules of interpretation, as, Rule I The meaning of the document or of a particular part of it is therefore to be sought for in the document itself; Rule II The intention may prevail over the words used; and Rule III Words are to be taken in their literal meaning. In this last regard it is stated (at 37-38) that this is not necessarily the etymological or dictionary sense, "but the sense in which the words are used by the majority of people -- the popular sense."
8 The application of this last proposition is illustrated in the judgment of Kirby P (as his Honour then was) in Harris v Ashdown (1985) 3 NSWLR 193 at 199 - 200. His Honour, in a case where the question was whether "children" and "grandchildren" in a will included a child adopted by a daughter of the testator after his death, referred to the dictum of Lord Cairns in Hill v Crook (1873) LR 6 HL 265 at 282 - 283, to the effect that "children" prima facie referred to legitimate children and excluded illegitimate children, and said at 199 - 200:
"Attitudes to personal relationships and the provisions of the law on matters such as illegitimacy and adoption, have changed so significantly in the past hundred years, that it is no longer safe to adopt, even as a rule of thumb, the principle that by the use of the word 'child' in his will, a testator must be taken to mean only a legitimate child. Quite apart from the provisions of legislation on adoption and the status of illegitimacy, social attitudes to such children have so changed since the 19th century, as to make the rule laid down by Lord Cairns inapplicable to modern conditions. In 1873, adoption (other than by Act of Parliament in the case of Royal adoptions) was virtually unknown as a legal status. It was not known in the law of this Statute under 1923 [sic]. Attitudes to illegitimacy were quite different to those which exist nowadays, and are now reinforced by legislation. In 1873, if a testator referred to a 'child' or 'children' in a will, he did so against the background of legal provisions and social attitudes and prejudices which existed at that time. A testator writing a will today does so against a quite different background of legal provisions and social attitudes. Reference has been made in recent decisions of the Court to the changing attitudes to de facto married relationships and their significance for legal principles laid down in earlier times: see Baumgartner v Baumgartner (1985) 2 NSWLR 406; A A Tegel Pty Ltd v Madden (1985) 2 NSWLR 591. The application to a modern will of the approach proposed by Lord Cairns in 1873 would, in the changing circumstances of personal relationships today, run the very real risk of frustrating the testator's intention.
Accordingly, in my view it is no longer safe to approach the construction of words such as 'child' and 'children' from the starting point of Lord Cairns' dictum. Nowadays, it would be much safer to include in the expression 'child', as used in a will, legitimate and ex-nuptial, adopted and step-children, unless, from the language of the will itself, or from admissible surrounding circumstances, it is shown that a narrower meaning was intended by the testator. Such an approach acknowledges at once the changing nature of personal obligations in today's society and the demise of earlier prejudices against illegitimacy which help to explain the starting point taken by Lord Cairns and, consequently, those who have since followed his dictum. That starting point may well have been appropriate in the social circumstances in which wills were written in 1873. It is scarcely appropriate in modern Australia."