Osborne v Smith

The document is in form regular enough. For the most part it is typewritten, and as typed it begins: " This is the Last Will and Testament of me Ruth King (professionally known as Petah King)"; but "King" is obliterated in ink and "Smith" written in capitals in ink above. There is a revocation of former wills, and then follow seven numbered clauses. Clause 1 consists of an appointment of Blanch and a man named Hill to be the executors and trustees of the will. Clause 2 is a gift of all the deceased's real and personal estate to her trustees upon trust to stand possessed of the same for the appellant absolutely. Clause 3 directs however that so long as the deceased's business shall be carried on by her trustees the sum of £100 per annum shall be paid to the "Home of the Peace Petersham", and that when her business shall be sold the sum of £200 shall be paid from the proceeds thereof to the said "Home of the Peace". (The reference obviously is to a well-known hospital called the Home of Peace Hospital.) Clause 4 bequeaths the deceased's eyes to the eye bank of the Sydney Eye Hospital, and cl. 5 directs that her body be cremated. Clause 6 directs that Blanch be the accountant to the estate, and that as such, notwithstanding his acceptance of the trusteeship, he be allowed all professional and other charges for his time and trouble which if employed as an accountant to the trustees, not being himself a trustee, he would be entitled to make. Clause 7 directs that a solicitor named Duke, by whom Blanch is said to have had the will prepared, be the solicitor to the estate. Then there is a testimonium clause in the usual form.

The document was typed with the day of the month left blank, the month being shown as December and the year shown as 1957 (in words). In the blank for the day of the month has been written in ink "25th" and this has been altered to "31st". The word "December" has been altered in ink to "January"; and the year has been altered in ink by substituting "eight" for "seven". There is a full attestation clause, with the deceased's signature opposite and, below, the signatures of a Mrs. Wilesmith, who was a stenographer in Duke's office, and a man named Campbell who was a young solicitor employed in that office.

In Blanch's suit for probate, Myers J. delivered reasons for judgment which dealt extensively with the evidence then before him as to knowledge and approval, and in the suit out of which this appeal arises those reasons were treated by concurrence of the parties as material before the Court. On the hearing of the appeal, both parties here conceded that this occurred, and they have joined in inviting us to take the reasons into our consideration. Their effect, so far as the issue of knowledge and approval was concerned, may be conveniently summarized by quoting a passage from a judgment which his Honour delivered on an interlocutory application at a later stage. He said: " when I tried this suit I had, as already said, grave doubts as to whether the testatrix knew and approved of the appointment of her executors or either of them. I could not find affirmatively that she did not, but there was nothing whatever to induce me to think that she did. The other beneficial dispositions made by the will, apart from the legacy of his fees to her executor, were a gift of her whole estate to Mrs. Osborne and a gift, so long as the business should be carried on by her trustees, of £100 a year to the Home of Peace, Petersham, and a further gift of £200 to the Home of Peace when the business should be sold. I felt, as Mr. Blanch stated in evidence, that the testatrix had intended to give her whole estate to Mrs. Osborne, subject to a legacy to the Home of Peace of £100 or £200 and not to the legacy of an annual sum plus a legacy of £200 as stated in the will". Having said this, his Honour proceeded: "My failure to be satisfied as to the appointment of her executors made it impossible to grant probate of the will in any case. My failure to be satisfied that the testatrix intended to make the gifts to the Home of Peace stated in the will would have made it impossible for me to grant letters of administration with the will annexed, because Mrs. Osborne's estate would then have been made subject to a considerably more detrimental charge than the testatrix had intended and the Home of Peace would have received considerably more then she ever meant it to get. Nor could I have granted letters of administration with the will annexed omitting the gift to the Home of Peace, because then the Home of Peace would have failed to get something which she did intend it to get and Mrs. Osborne would have received more. Consequently the application for probate would have failed even had I been satisfied that the testatrix knew and approved of the appointment of her executors. However, and I say this because Mr. St. John has mentioned the matter, as at present advised and having reached the conclusions in the suit which I did, I could see no objection to letters of administration of the will being granted including both those dispositions so long as Mrs. Osborne was prepared for such a decree to be made."

The interlocutory application in which these observations were made was for an extension of time in connexion with an appeal which Blanch had instituted to the Full Court of the Supreme Court. That appeal was later abandoned, being dismissed on Blanch's own motion; and the present appellant, as principal beneficiary under the alleged will, then commenced a suit against the respondent as sole defendant, seeking letters of administration c.t.a. It is the decree made in that suit which is the subject of the present appeal. The statement of claim alleged due execution of the will, and the death of the deceased without having altered or revoked it; and then it set out that in the previous suit the Court had refused to admit the will to probate on the ground that it was not satisfied that the deceased knew and approved "certain portions" of the will "and in particular the portion providing for the appointment of the executors". It alleged that advertisements had been published of the intention to apply for administration "with certain portions of the Will annexed", and that the respondent had lodged a caveat; and it contained an offer by the appellant to undertake, if the court should grant the relief sought, to administer the estate of the deceased "as if the said deceased had known and approved of that portion of the said Will which purports to confer benefits on the Home of Peace". The relief sought was a grant of administration c.t.a. with the omission of the following parts of the will: (a) the appointment of executors, (b) the annuity and legacy to the Home of Peace, (c) the appointment of Blanch as accountant to the estate and the authority for him to make professional charges, and (d) the appointment of Duke as solicitor to the estate. The defendant raised the defences of want of due execution, want of knowledge and approval, want of testamentary capacity, and undue influence.

At the hearing of the suit, a body of evidence was led by both parties on the issue of due execution, notwithstanding that that issue had been contested hardly if at all in the previous suit; but, as his Honour said when he came to deliver judgment, it was a remarkable feature of the case that no evidence at all was directed to the question of omitting parts from the will. His Honour thought that, as a consequence, even if he found every other issue in favour of the plaintiff (the appellant) there was nothing to justify him in omitting one word from the will. In the end, his Honour dismissed the suit because, notwithstanding that in the former suit the issue of due execution had not been fought and he had expressed himself as affirmatively satisfied upon it, he found himself, on the evidence before him in the new suit, unable to conclude that the document had been executed as required by law.

We have been invited to review the evidence upon which his Honour reached his decision, and if there had been nothing in the case but the issue of due execution a question which might have required serious consideration on the appeal is whether the learned judge allowed sufficient weight to the presumption which the law recognizes on the point. But whatever it might have been right to decide on that question, the appellant must still have faced a difficulty which was inherent in her suit. The difficulty was brought out clearly enough when Myers J., in the last-quoted passage of his interlocutory judgment, pointed out that he could not have granted administration with the will annexed omitting the gift to the Home of Peace, because then the Home of Peace would have failed to get something which the deceased intended it to get, and Mrs. Osborne (the present appellant) would have received more than the testatrix intended her to get. To express it perhaps more precisely, if cl. 3 of the will were to be omitted, the result would be that cl. 2, containing the gift to the appellant, would operate not as a gift of the residue after payment of a legacy of £100 or £200 to the Home of Peace - which was the only gift to the appellant which the deceased had any idea was in her will - but as a gift of the whole estate free from any such legacy. It will be remembered that Myers J. made a suggestion designed to provide a practical solution of the difficulty, and that the statement of claim which the appellant subsequently filed contained an offer of an undertaking directed to the same end. Both sought to put the Home of Peace in as good a position practically as if cl. 3 of the will had been the subject of the deceased's knowledge and approval. But in fact neither would put the Home of Peace, and consequently the appellant herself, in the same position, even in a practical sense, as if the will had contained such a provision in favour of the Home of Peace as the deceased intended. And, in any case, what seems to have been overlooked is that the question whether the document propounded, or any part of it, should govern the administration of the estate is not one which concerns only the appellant and the Home of Peace. If affects also the person or persons who would take if the will were held wholly void; that is to say who would be entitled on intestacy or under an earlier will. The difficulty is therefore not one which is capable of being overcome by agreement between the appellant and the Home of Peace. It is one which goes to the jurisdiction of the Supreme Court to treat as a valid testamentary instrument so much of the document as would remain if those parts of it were omitted which in the first suit were found not to have been within the deceased's knowledge and approval.

It was both proper and necessary in the second suit to treat as binding upon the appellant the findings as to knowledge and approval which had been made in the first suit. She, it is true, was not a party to the first suit; but there is a well-established principle of probate practice, which grew up in the ecclesiastical courts, that any person having an interest may have himself made a party by intervening, and that if he, knowing what was passing, does not intervene, but is "content to stand by and let his battle be fought by somebody else in the same interest", he is bound by the result, and is not to be allowed to re-open the case: Wytcherley v. Andrews [1] ; Nana Ofori Atta II v. Nana Abu Bonsra II [2] . The principle applies in the Supreme Court of New South Wales in its probate jurisdiction, because by virtue of cl. xiv of the Charter of Justice and s. 33 of the Wills, Probate and Administration Act, 1898 N.S.W. that Court has ecclesiastical jurisdiction, and with it the rule as to intervention: Hamilton v. Hamilton [3] . Accordingly the appellant might have intervened in Blanch's suit for probate. She preferred, however, to let Blanch fight her battle for her. She knew he was doing so, for she was called on his behalf as a witness and gave evidence in the suit. Having thus acted, she must be held bound by the decision that was given, namely, that the document propounded was not, as a whole, the deceased's will. It is important to observe that the provisions which had been introduced into the document without her knowledge were not upon matters in which she had empowered the draftsman to use his own judgment: cf. Perpetual Trustee Company v. Williamson [4] ; In re Horrocks; Taylor v. Kershaw [5] ; and it is no less important to notice that the deceased did not read the document or have it read over to her before signing it. The learned judge found that Blanch misrepresented the document to her, describing the gift to the Home of Peace "in quite misleading terms", and saying nothing at all about the other matters to which her instructions had not extended. The purported explanation of the document which his Honour found that she had been given was in a statement made to her by Blanch in the words: " "Petah, this is your will that you wanted drawn up. You are leaving everything to Ena" " (that is the appellant) " "except £100 or so to the charity of the Home of Peace. Is that what you want?", and she said "Yes, that is what I want".".

1. (1871) L.R. 2 P. & D. 327. 2. (1958) A.C. 95. 3. (1913) 30 W.N. (N.S.W.) 46. 4. (1929) 29 S.R. (N.S.W.) 487, at p. 490. 5. (1939) P. 198, at p. 216.

It is undoubted law that a court of probate has jurisdiction, in an appropriate case, to grant probate, or administration c.t.a. in respect of a portion only of a document which has been executed as a will, omitting other portions as having formed no part of that to which the execution of the document really applied, as, for example, where by fraud or mistake there has been included in the instrument words which in truth were not part of the testator's will: Rhodes v. Rhodes [6] . "In that case you may strike out the passage, because he did not know it was there or intend that it should be, and therefore it was not his will in any sense of the word": Morrell v. Morrell [1] . In Rhodes v. Rhodes [2] , however, Lord Blackburn, for the Privy Council, expressed doubt as to whether words could be rejected under this principle where the result would be to alter the sense of those which remained. "For", he said, "even though the Court is convinced that the words were improperly introduced, so that if the instrument was inter vivos they would reform the instrument and order one in different words to be executed, it cannot make the dead man execute a new instrument; and there seems much difficulty in treating the will after its sense is thus altered as valid within the 9th section of the 7 Will. 4 & 1 Vict. c. 26, the signature at the end of the will required by that enactment having been attached to what bore quite a different meaning". That the doubt thus expressed was well-founded the Court of Appeal held in a considered judgment in the case of In re Horrocks; Taylor v. Kershaw [3] . The will there under consideration contained a gift for objects described as "charitable or benevolent". Evidence was given that the word "or" was inserted by a mistake on the part of the typist to whom the solicitor dictated the will, the solicitor having used the word "and". In order to save the gift from the invalidity which would result from the use of "or", the Probate Court was asked to strike that word out. The Court of Appeal considered that the alleged mistake had not been established by the evidence, but went on to hold that even if it had been established the case would not have fallen within the jurisdiction to exclude from the probate a portion of a document which otherwise was proved as a will. The reason was that "charitable", with its full meaning, was the choice of the testatrix herself; the word "benevolent", with its full meaning, was the choice of the draftsman to whom she had committed the task of drafting the will and by whose choice of the word she was in the circumstances bound; and the word "or" could not be deleted without making the words "charitable" and "benevolent" qualify one another so that neither would then carry its full meaning. The fact that the actual intention of the testatrix would thereby be effectuated was not regarded as justifying a step which would produce this result. The principle which was applied - and whether it was applied correctly or not is not to the point - was expressed in the words: "the cases in which the Court has decreed probate with the omission of words, phrases or clauses have all been cases where the matter omitted was, so to speak, self-contained and its omission did not alter the sense of what remained": [4] .

1. (1882) 7 App. Cas. 192, at p. 198. 2. (1882) 7 P.D. 68, at p. 70. 3. (1882) 7 App. Cas. 192. 4. (1939) P. 198. 5. (1939) P. 189, at p. 219.

This proposition has recently been accepted by this Court in Ebert v. The Union Trustee Company of Australia Ltd. [1] and is fully borne out by the authorities. Only a few of them need be mentioned. The cases of In re Duane [2] and Fulton v. Andrew [3] provide clear illustrations of the kind of case in which a clause may be omitted from probate without altering the sense of what is left. In each, it was a residuary gift which was omitted. In Morrell v. Morrell [4] , a single word was omitted, but again every remaining word had precisely the sense it had before the omission, so that the will with the word omitted was exactly what the testator had believed he was signing. The case of Goods of Schott [5] is similar.

1. (1960) 104 C.L.R. 346, at p. 351. 2. (1862) 2 Sw. & Tr. 590; [ 164 E.R. 1127]. 3. (1875) L.R. 7 H.L. 448. 4. (1882) 7 P.D. 68. 5. (1901) P. 190.

The case of In the Goods of Boehm [6] must be treated with some reservation. There it was proved that a mistake had occurred in a clause giving a pecuniary legacy. The testator had intended one person to be named as the legatee, and by a mistake the draftsman had substituted the name of another. The testator was led to execute the will in the belief that the correct name appeared. The decision was that the will should be admitted to probate with the name omitted. Of course the name of the intended legatee could not be inserted in the blank thus created. The learned judge perceived that by omitting the erroneous name he was creating an ambiguous situation. A court of construction might infer, on consideration of the will as a whole, that in the blank the name of the intended legatee should be understood, or it might hold that the clause was meaningless. Nevertheless his Lordship decided to omit the word. He said: "If a person by fraud obtained the substitution of his name for that of another in a will it would be strange if his name could not be struck out, although the rest of the clause in which it occurred became thereby meaningless. It may be that in the present case the effect of striking out the name in question will be, on the construction of the will, as it will then read, to carry out the testator's intentions completely. It is not for me to decide that. But even if to strike out a name inserted in error and leave a blank have not the effect of giving full effect to the testator's wishes, I do not see why we should not, so far as we can, though we may not completely, carry out his intentions" [7] .

In In re Horrocks; Taylor v. Kershaw [8] the Court of Appeal evidently felt some difficulty about In the Goods of Boehm [6] . Sir Wilfred Greene M.R., who delivered the judgment, mentioned that it was a case in which all parties consented to the application, and that the learned judge had not conceived himself to be doing something which altered the sense of what remained. Making no reference to the ambiguity that had been created, and treating the striking out of the name as if it had certainly deprived the clause of effect, his Lordship pointed to fundamental principle by saying: "it is one thing to strike out a word which leaves what is left devoid of ascertainable content and therefore inoperative; it is quite another thing to strike out a word when by doing so the meaning of what is left is qualified or cut down". It would seem to be the logical consequence of the application of this principle that the decision in In the Goods of Boehm [1] was correct if, but only if, the will contained no residuary clause; and as to that, the reports of the case in the Law Reports, the Law Journal, the Law Times and the Times Law Reports are all silent. But both on principle and on the authority of the remark of Sir Wilfred Greene above referred to, it seems clear that the case cannot be regarded as meaning that the Probate Court may omit from the probate a word or words which appear in a will, where the omision will cause other words of the will to produce a result different from that which was within the knowledge and approval of the testator.

1. (1939) P. 198, at pp. 219, 220. 2. (1891) P. 247. 3. (1891) P. 247.

The point is crucial in the present case. The findings in the earlier suit by which the appellant is bound make it necessary that the case should be decided on the footing that the deceased did not know and approve of the clause which actually appears in the will in reference to the Home of Peace. But for the same reason the case must be decided on the footing that the deceased did not know and approve of a bequest to the appellant of the entire estate undiminished by a gift of £100 or £200 to the Home of Peace. Here lies the difficulty which is inherent in the proceedings and stands in the appellant's way whatever may be thought about the question of due execution. As has been pointed out, if the existing clause in favour of the Home of Peace were to be struck out, the gift to the appellant would necessarily have an effect different both from that which it has on the face of the instrument and from that which the deceased intended it to have. It would stand as a gift of the entire estate without qualification. While refusing recognition to one provision which the deceased did not know and approve, the Court would be turning another, which she knew and approved subject to a qualification, into one which, being unqualified, she did not know and approve. That, plainly, would be to go beyond the jurisdiction of the Probate Court.

It follows that the suit was misconceived, and the appeal should be dismissed.

I agree that this appeal must be dismissed for the reasons given by Kitto J. with which I entirely agree.

I desire to say, however, that having regard to the presumption of due execution and to the evidence, particularly that of Mr. Campbell, I would, had it become necessary, have been prepared to decide that there should have been a finding that the document propounded as a will, had been executed as required by law.

I entirely agree with what Kitto J. has said in his judgment on the matters of law that must govern our decision. It follows that the appeal must be dismissed.

I would add only two things: First, although the learned trial judge had the great advantage over us of seeing the witnesses, I think that his decision that the will was not duly executed was probably erroneous. It was, however, natural that, once this issue was seriously contested, he should have felt caution was very necessary for there were some strange circumstances - one of which was that a will said to be "regular on the face of it" had in fact been torn into bits. This, however, was explained and there was strong positive evidence of due execution especially in the testimony of Mr. Campbell. His Honour may, I think, have given more weight to the evidence of the respondent as to his wife's movements on the day the will was said to have been executed than on analysis that evidence seems properly to have. The respondent's attempt to establish that his wife was at home all day was based on his own recollection of his own movements, which centred round paying a newspaper bill before going to some dog racing meeting, he could not remember where. The matters he relied on, even if they occurred as he said, were inconclusive. One thing seems reasonably clear: the testatrix had no intention that he should benefit under her will and did not take him into her confidence about it in any way. Secondly, it may well be that at the date of the will the dominant wish of the testatrix was that her property should go to the appellant; and that her intention to give a legacy of a relatively small amount to the Home of Peace was quite subordinate. His Honour's refusal of probate on the ground that she did not know and approve of the will binds the appellant. An appeal against it was dismissed by consent. We cannot adjust a document that does not express what the testatrix really willed to make it conform with what we may think would at that date have been her wish had she been aware of the difficulties that would arise because Blanch had failed to carry out her instructions properly.