Pohlner v Elder's Trustee & Executors Co Ltd - [1964] HCA 8 - HCA 1964 case summary — Zoe

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Pohlner v Elder's Trustee & Executors Co Ltd

[1964] HCA 8

High Court of Australia|1964-07-01|Before: Windeyer JJ, Chamberlain J

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Source facts

Court

High Court of Australia

Decision date

1964-07-01

Before

Windeyer JJ, Chamberlain J

Source

Original judgment source is linked above.

Judgment (70 paragraphs)

[1]

High Court of Australia Dixon C.J. Kitto, Taylor, Menzies and Windeyer JJ. Pohlner v Elder's Trustee & Executors Co Ltd [1964] HCA 8

[2]

ORDER Order of Supreme Court varied by striking out the order that costs should be paid out of the leasehold therein referred to and substituting therefor the order that costs of all parties should be paid out of the residuary estate. Save as aforesaid appeal dismissed. No order as to the costs of the appeal.

[3]

This is an appeal as of right from an order of the Supreme Court of South Australia made on originating summons. The originating summons sought the determination of certain questions and matters arising out of the will of Hilda Clara May Jones deceased who died on 25th November 1960. The will was executed on 20th February 1956. At that time the testatrix was a lessee as tenant in common in equal shares with a sister named Stella Mary Marguerite Stockman. This was a Crown Perpetual Lease of land situated at Paratoo. The property was known as Oak Park. It was situated in the Counties of Herbert and Kimberley and comprised 18,400 acres. On the land the sisters carried on a grazing and livestock business in partnership. The partnership was dissolved on 16th December 1959. On the dissolution the land and certain pieces of working plant were sold by auction on 3rd December 1959. According to an affidavit supporting the summons "At the said auction which was held on the 3rd day of December 1959 the whole of the interest of the said Stella Mary Marguerite Stockman in the said land and in some of the items of working plant belonging to the partnership was purchased by the testatrix who also by arrangement with her said sister acquired by way of purchase from her said sister her said sister's one half interest in the livestock implements machinery farming and grazing stores stocks and provisions and in the balance of the items of working plant belonging to the partnership. In the events which have happened the testatrix at the date of her death was the sole registered lessee of the said land and the owner of the assets referred to above." By her will the testatrix gave the whole of her estate to her trustee (the plaintiff in the summons) "Upon trust as to all my share and interest in the Leasehold property situate at Paratoo in the said State known as Oak Park and being Block 16 Counties of Herbert and Kimberley containing Eighteen thousand four hundred acres or thereabouts which said property is owned by me in common with my sister Stella Mary Marguerite Stockman and all my share and interest in the livestock working implements and machinery and in the farming and grazing stores stocks and provisions (not being produce of any kind grown or held for the purpose of sale) which shall be on such property as aforesaid at my decease and which shall be owned by me in common with my said sister or which shall form portion of the assets of any partnership between my said sister and myself which shall be in existence at my decease: - (a) As to one half thereof for my brother Charles Alick Herman Pohlner (b) As to the other one half thereof for such of them my sisters Agnes Nelly Elizabeth Pretoria Gruneklee and Clara Louisa Thelma O'Leary as shall survive me and if more than one in equal shares." There followed a direction to convert the remainder of her estate and to apply the proceeds to pay debts etc. and certain pecuniary legacies and to stand possessed of the balance for such of her two daughters Clair Julia Pfeiffer (the defendant to the summons and respondent in the appeal) and Joy Ashley Betty as should survive her, if more than one in equal shares. By a proviso there was a gift over in the case of the daughters or either of them predeceasing the testatrix, which apparently did not happen.

[6]

Section 27 of the Wills Act, 1936-1940 of South Australia reproduces s. 24 of the English Wills Act, 1837. It provides that "every will shall be construed with reference to the real and personal estate comprised in it to speak and take effect as if it had been executed immediately before the death of the testator unless a contrary intention appears by the will." The defendant appellant, Pohlner, contends that under this provision the words in cl. 4 of the will "as to all my share and interest in the Leasehold property situated at Paratoo in the said State known as Oak Park and being which said property is owned by me in common with my sister Stella Mary Marguerite Stockman and all my share and interest in the livestock working plant which shall be on such property as aforesaid at my decease and which shall be owned by me in common with my said sister or which shall form portion of the assets of any partnership between my said sister and myself which shall be in existence at my decease", when read in pursuance of s. 27 govern the whole of the assets consisting of Oak Park. I find it impossible to take the view that although the chattels were on Oak Park at the time of the death of the testatrix they were governed by the interpretation which is said to depend on s. 27. The provision describes the chattels to which it applies as chattels "which shall be on such property as aforesaid at my decease and which shall be owned by me in common with my said sister or which shall form portion of the assets of any partnership between my said sister and myself which shall be in existence at my decease." Whether you read these words as at the date when they were written or as at the date of the death of the testatrix, they cannot apply to the chattels which were on Oak Park at the time of her death. It seems to be assumed that the failure of the testatrix to alter her will indicated that her intention continued of disposing of at least a half interest in Oak Park in favour of her brother and sisters rather than in favour of her children and that to treat the leasehold interest as necessarily falling into residue was in some way inconsistent with the justice of the case. To my mind speculation as to why she did not replace her will with another will after she had acquired the full interest in Oak Park is necessarily fruitless. She may have been told that her disposition of Oak Park was inapplicable now she had acquired the full interest. She may have been told the contrary. She may have been told nothing about it. All we know is that she did not alter her will and it remains for us to say on its terms whether the provision can apply. The provisions contained in s. 27 of the South Australian Act or s. 24 of the English Act are notoriously difficult to apply. If one looks at early editions of Jarman and follows the course down the years of the authorities one can see that the question has appeared difficult to persons trained in the construction of wills for well over a hundred years. In a sense some of the questions are metaphysical and involve such logical conundrums as whether proper names are connotative. In the present case I do not see how the clause numbered 4 can embrace the full beneficial interest in the leasehold. That is another subject matter, and read the words at any date you choose, they are not apt to carry the full beneficial interest in the entirety. That would mean that the assets must fall under the residuary clause. But we were informed that if such were our conclusion the parties including the appellant simply desired the appeal to be dismissed. All that it is necessary to say therefore is that the appeal should be dismissed and a special order should be made as to costs.

[9]

The dispositive provisions of the will, which alone it is necessary to mention, are contained in clauses numbered 4 and 5. By cl. 4 the testatrix gave the whole of her estate to her trustee and declared trusts with respect to certain property in favour of a brother and two sisters. Clause 5 created trusts with respect to the remainder of the estate. The questions submitted to the Court were concerned with the operation of cl. 4. At the date of the will a leasehold grazing property known as Oak Park was held by the testatrix and a sister of hers in common in equal shares. On the property the two of them were at that time carrying on a grazing business in partnership. The trusts in cl. 4 of the will were directed (speaking in broad terms for the moment) first to the interest of the testatrix in Oak Park and secondly to her interest in livestock and other chattels. If the situation in regard to Oak Park as between the testatrix and her sister had remained unchanged until the death of the testatrix the meaning and application of the trusts declared in cl. 4 of the will would have presented no difficulty. But it did not remain unchanged. Before the death of the testatrix, which occurred nearly five years after the date of the will, the partnership between the sisters was dissolved and the testatrix acquired her sister's interest in Oak Park. Thereafter she carried on there a grazing business of her own. How cl. 4 operated in the situation thus brought about is the problem. It is a problem as to the interpretation of the words which describe the subject-matter of the dispositions in cl. 4. It is therefore a problem to be considered with the statutory provision in mind, first made by s. 24 of the Wills Act, 1837 in the United Kingdom and now found for South Australia in s. 27 of the Wills Act, 1936 S.A., that every will shall be construed with reference to the real estate and personal estate comprised in it to speak and take effect as if it had been executed immediately before the death of the testator unless a contrary intention appears by the will.

[11]

The interest which the testatrix had at her death in the chattels then on Oak Park, that is her absolute interest as sole owner, is plainly outside the terms of the trust and consequently falls into residue; for the chattels were not then owned by the testatrix in common with her sister, nor were they portion of the assets of any partnership. But the position in regard to Oak Park itself is not so clear. The only description of the subject-matter of the gift is in the words "my share and interest" in the property. As a matter of English, that description is equally capable of meaning either the share and interest the testatrix had at the date of the will or the interest she should have at her death. Accordingly s. 27 of the Wills Act requires, unless a contrary intention appears from the will, that it be taken to mean the share and interest she should have at her death. If a contrary intention is to be found at all it must be found by reading the expression "which said property is owned by me in common with my sister" as explaining the words "my share and interest" so as to confine them to the share and interest which the testatrix had under the tenancy in common with her sister which existed at the date of the will. This is not prima facie their purpose. Literally they do no more than supplement the already ample description of Oak Park. It is true that if there is nothing more in them than that, their presence in the will shows only that the draftsman, while not intending to affect the construction or application of the words "my share and interest", thought it desirable to make clear that he had used those words because as things stood there was only a limited interest to dispose of. But does the expression, merely descriptive of Oak Park though it is in terms, yet convey the meaning that the subject-matter of the disposition is the particular share and interest in Oak Park which the testatrix owned at the date of the will, to the exclusion of any other that she may come to own? Speculation, however reasonable it may seem, will not do. Only if an intention contrary to s. 27 actually appears from the words of the will can the gift be held to fail by reason of the union of the two undivided interests that took place during the lifetime of the testatrix. In my opinion no such intention does appear.

[13]

The marked difference between Oak Park and the chattels in regard to the time as at which title is referred to is explained in the argument for the residuary legatees as due to the testatrix's having thought that, if the legatees named in cl. 4 were to be enabled to take her place in relation to the business which she supposed would still be a going concern at her death, on the one hand allowance would have to be made in the gift of her interest in the chattels for the probability of changes in the identity of the chattels in the meantime, but on the other hand no allowance need be made for change in regard to the land, for there was no likelihood of the business moving from Oak Park. But an expectation that Oak Park would continue to be the business premises is not the same as an expectation that the respective interests of the sisters in that property would continue unaltered. There seems to me to be no ground for inferring that the testatrix addressed her mind at all to the possibility of a change occurring in the nature or extent of her interest either in Oak Park or in the chattels for the time being on the property - save that she did advert to the alternative possibilities of the chattels being owned either in common or as partnership assets. But even if the inference might properly be drawn that she considered the possibility of a change in the relative positions of her sister and herself in respect of Oak Park, there would still be no justification for saying that by the will she disclosed a positive intention that when she died the words "my share and interest" should not speak and take effect as if the will had been executed immediately before her death. If probabilities were to decide the question, it would be difficult to attribute to her an intention that in the event (for example) of her acquiring one-half of her sister's interest in Oak Park and of the chattels cl. 4 should carry only her original half-interest in Oak Park though it should carry a three-fourths interest in the chattels.

[20]

There seems little doubt that the second part of the disposition did not, upon any view, effectually dispose of any interest in the livestock and plant on the property at the time of the death of the testatrix, for, in terms, it related to her "share and interest" in the livestock and plant which should be on the property at the time of her decease "and which shall be owned by me in common with my said sister or which shall form portion of the assets of any partnership between my said sister and myself which shall be in existence at my decease". The quoted words clearly constitute a limitation concerning the character of the property with which the disposition purports to deal and since no property of that character was in existence at the time of the death of the testatrix it passed nothing to the three named beneficiaries. The first part of the disposition is, however, somewhat differently constructed. It purports to deal with "all my share and interest" in the leasehold property which is, thereafter, made the subject of, at least, a twofold description. It is described as "known as Oak Park" and as "being Block 16 Counties of Herbert and Kimberley containing Eighteen thousand four hundred acres". Thereafter follow the words - "which said property is owned by me in common with my sister". The contention for the appellant is that these words are but descriptive of the property only and in no way operate to circumscribe or limit the "share and interest" therein with which the disposition purports to deal. This, I think, is literally true and, if nothing else appeared in cl. 4 and this were the only matter appearing for our consideration, I would be disposed to think that the entire leasehold interest would pass to the three named beneficiaries. Having in mind s. 27 of the Wills Act, 1936-1940 and cases such as Struthers v. Struthers [1] ; Drake v. Martin [2] ; Miles v. Miles [3] ; Cox v. Bennett [4] ; and in In re Russell [5] there would be much to be said for this proposition. But the earlier disposition does not stand alone and it would not, I think, be proper to seek to ascertain the intention of the testatrix from a consideration of the earlier part of cl. 4 standing in isolation. Indeed, to give effect to the appellant's contention would, it seems to me, produce a result diametrically opposed to the intention discoverable upon an examination of the whole of the clause. That intention, as I see it, was, in substance, to dispose of an interest in the pastoral business to the three named beneficiaries and it would be entirely foreign to this intention to hold that the effect of the disposition was, on her death, to pass the land to one set of beneficiaries and the livestock and plant to another.

[30]

The destination of the leasehold of Oak Park is not so obvious, but again the problem is whether the testatrix at the date of her death had property answering the description to be found in cl. 4. If her leasehold estate in Oak Park answered the description, then that clause carried that estate to the beneficiaries there named; otherwise, that estate fell into residue and was disposed of by cl. 5. If there were nothing more, I would have no difficulty in treating the words "all my share and interest in the Leasehold property known as Oak Park" as covering the leasehold title which the testatrix had at the date of her death, but it is contended that the words "which said property is owned by me in common with my sister" show that the words I have just quoted should not be so understood. It is, of course, true that, in the circumstances existing when the will was made, cl. 4 would have disposed of a moiety of the leasehold regardless of the words "which said property is owned by me in common with my sister" but, when the circumstances changed and the testatrix became the sole owner of the leasehold, the words "all my share and interest" would, I think, cover the whole leasehold title, unless the words "which said property is owned by me in common with my sister" prevent them from being so understood. These last words refer, of course, to the ownership of the property at the date of the making of the will. Then they were correct but quite unimportant because they did no more than indicate how the leasehold property in which the testatrix was disposing of all her interest was then owned. It would give them an importance that they never had to regard them as requiring that the description of the subject matter of the gift should be read as "my interest as tenant in common with my sister Stella in the leasehold of Oak Park" and nothing else so that the gift would fail in the event of the testatrix's interest in the leasehold at the date of her death being other than a tenancy in common with her named sister. If, for instance, her sister had predeceased the testatrix and had disposed of her moiety by will to the testatrix or someone else, I do not think the testatrix's disposition would, therefore, have failed. The testatrix, in describing how the leasehold was then held, was not putting it in the power of her sister to destroy her disposition of her interest in it. The will, of course, speaks as from the date of the death of the testatrix "with reference to the real and personal estate comprised in it" unless a contrary intention appears in the will: Wills Act, 1936, s. 27. This section requires, in the absence of a contrary intention, that words in a will sufficiently describing property which a deceased person had at the date of death should carry that property whether or not it was the property of the deceased when the will was made and it applies to the leasehold in Oak Park if it is sufficiently described in cl. 4; it cannot, however, be regarded as requiring the words "which said property is owned by me in common with my sister, etc." to be regarded as a statement of how the leasehold was owned at the date of the death of the testatrix. Moreover, if the words were to be so understood, the statement would have to be regarded as nothing more than a false description of something sufficiently described in the will.

[31]

A number of authorities were referred to bearing upon the effect of provisions such as s. 27. I do not think these authorities have much to do with the problem that faces us here for it seems to me that there can be no doubt that, if the words of cl. 4 are sufficient to describe it, that clause carries whatever interest the testatrix had in the leasehold at the date of her death, for no intention that the property given should be ascertained at a date other than the date of death appears. This is not a case where the words used in a will to describe the subject of a bequest could apply either to something that the testatrix had when she made her will or something different which she had when she died and the question which arises is whether the testatrix has manifested an intention to give the former rather than the latter. The problem here is whether the testatrix had, when she died, anything falling within the description of the subject-matter of the bequest to be found in the first part of cl. 4 of the will. If the subject matter of the disposition is a tenancy in common with her sister Stella in the leasehold, then she had no property answering that description when she died and the bequest entirely fails for lack of subject matter, for I see no way of construing the will as creating a tenancy in common between the beneficiaries named in cl. 4 and the residuary beneficiaries. On the other hand, if the subject of the gift is any interest she had in the leasehold, the bequest would clearly enough carry the leasehold itself to the named beneficiaries. As I have already indicated, I prefer the second alternative to the first, upon the words of the will itself without more. Furthermore, however, while remembering that decisions upon the words found in one will cannot determine and can rarely assist in determining what is meant by different words in another will, I do gain some assurance from In re Russell [1] where it was decided that a gift in a will made when the testator was carrying on business in partnership with his two brothers of the income from "all my part, share, and interest of and in the said co-partnership trade or business" operated to entitle his widow to the whole of the income of the business when the circumstances were that the testator had acquired the shares of his two brothers between the date of his will and the date of his death. Bacon V.C. said: - " when you find the scope of a man's will to be, "I, being a manufacturer, in partnership, give to my wife the enjoyment of all the share in the business I am carrying on to which I may be entitled at my death", it cannot be, because that property has become increased by his own purchases or by the death of his brothers, that the provision he has made is to be confined to the one-third of which he was possessed at the date of his will. That would be a very violent construction, and one which I think the Court is not compelled to adopt" [2] .

[55]

Although there are indications in some of the cases that some judges have taken the other view, I accept as correct the construction which Jarman's editors approved. It accords with this Court's decision in McBride v. Hudson [3] , and with the statement of Jenkins L.J. in In re Edwards; Macadam v. Wright [5] that: "I further find it impossible to accept the proposition that, where it is material to ascertain whether a gift has been adeemed, s. 24 of the Wills Act precludes investigation of the circumstances obtaining at the date of the will containing the gift in question, or of any matters which have occurred between the date of the will and the date of the death of the testator or testatrix bearing on the question whether the gift has been adeemed or not. If that were so, I find it difficult to see how any case of ademption could ever be made out. The essence of ademption surely is that there should have been a gift by will of property belonging to the testator or testatrix at the date of the will, followed by some dealing inter vivos with the property inconsistent with the testamentary gift. I think that In re Gibson [1] , makes it sufficiently plain that section 24 of the Wills Act has no such effect" [2] . To quote again from the often-cited judgment of Joyce J. in In re Evans, Evans v. Powell [3] , "The Court in construing a will must, in order to give effect to it, take into consideration the condition of things in reference to which it was made. It is well settled that there may be a specific description of the subject of a gift as to show that what was intended to pass, whether real or personal estate, was some particular thing in existence at the date of the will. and where there is such a particularity in the description of the subject of a gift as to show that it was some object in existence at the date of the will that was intended to pass, it is considered that there is sufficient evidence of a contrary intention to exclude the application of the provisions of s. 24" [4] . That necessarily invites attention to the circumstances existing when the will was made. As Page Wood V.C. put it in In re Gibson; Mathews v. Foulsham [1] , the case to which Jenkins L.J. referred: "When there is a clearly indicated intention upon the face of the will to give the single specific thing, and nothing else, it would be a very narrow construction of the words of s. 24 to hold that you must sweep in everything to which the words might be held to apply, without the slightest reference to the state of things existing at the date of the will" [5] .

[60]

Returning to the precise words of the present will, and construing them in the light of the circumstances existing when it was made: they were then apt to describe the particular interest in Oak Park that the testatrix then had. Are they fairly capable of describing whatever interest she might thereafter acquire in the Oak Park lands? I think not. The words "all my share and interest" coupled with the reference to the property as "owned by me in common with my sister" seem to me to mean something less than the entire estate in severalty. "All my share and interest" could, no doubt, of itself be a generic term, carrying any share that should exist at the date of death, whether greater or less than that held at the date of the will, just as "all my rights" in a particular thing is a generic expression: cf. In re Bancroft; Bancroft v. Bancroft [1] . But a share, to my mind, means something less than the whole: and it seems to me that in combination with the rest of the clause, in particular with the reference to the testatrix's ownership in common with her sister, it makes that reference something more than an inessential and superfluous part of the description of the physical property Oak Park. The words, read together, are, I think, definitive of the nature of the share and interest of which the testatrix was speaking, namely her interest as a tenant in common, not descriptive of the land in which she had that interest. That construction is, I consider, much reinforced by the words of the associated gift of the testatrix's interest in the livestock, plant etc. that should be on Oak Park at her death. Noscitur a sociis. When cl. 4 of the will is read as a connected whole, it shows clearly, I think, that the testatrix, in making the disposition embodied in it, contemplated that she and her sister would be owners in common of the land of Oak Park and of livestock and plant that from time to time should be on the property. The clause shows an obvious intention that the share and interest of the testatrix in land and chattels owned in common should go together at her death as a composite gift to the same persons, not that the land and chattels should go to different persons. In effect what the clause seems to have been designed to give was the testatrix's share in the assets of a partnership - in its fixed capital, the land where the partnership business was carried on; and in the associated personalty in the nature of wasting assets and circulating capital employed in the business, as distinct from detached profits in the form of "produce grown or held for sale", which was expressly excluded. The part of the clause relating to the share and interest of the testatrix in the livestock and other chattels is expressly stated to be in such of those things as should be on the property at the date of the death of the testatrix and then owned in common or being partnership assets. That is obviously because the actual chattels making up the assets of the partnership would necessarily vary from time to time. But that the personalty comprised in the share or interest was fluctuating and thus necessarily to be ascertained at death merely emphasizes that the share and interest given was given as a specific gift. Therefore the clause, as I read it, could have no operation if at the date of death the testatrix had no share or interest in land or chattels then held in common ownership, in law or in equity, with her sister. A specific thing was given which was in existence at the date of the will. At the date of death it had ceased to exist. There was thus an ademption of the gift. That is the position as I see it.

[63]

The cases cited to us are all distinguishable on their facts from the present case. And so far as they tell at all in this case, they really, it seems to me, tell against the appellant. No good purpose would be served by discussing them all. But some that were earnestly relied on in the thorough argument for the appellant I shall mention. Great weight was put on the decision of Bacon V.C. in In re Russell; Russell v. Chell [3] . There the question was whether, on the words of the will read as a whole, a devise and bequest of "all my part, share and interest of and in the said co-partnership trade or business, and of and in the real and personal estate which may be used, employed, or invested therein " carried only the one-third share as a partner that the testator had when he made his will; or whether, he having bought out the other partners, the whole interest in the business and the assets used therein passed. There was no residuary clause, so that the contest was between those interested under the will on the one side and those interested on a partial intestacy, the heir at law and next of kin, on the other. The Vice-Chancellor said: "the opinion that the testator died intestate so as to deprive his wife of any interest, is in my opinion, not tenable for a moment" [1] : and "It is clear that it would disappoint the intention of the testator" [2] : and "I cannot doubt that by deciding as I do I am carrying into effect the intention expressed by the testator" [3] . He referred to the provision of the Wills Act, saying that "the acquisition of a larger interest does not affect in the slightest degree the disposition which the testator made of all the interest he had in the house, chattels, and other property in the co-partnership business, although the partnership had ceased to exist, and he had become the sole owner of the property" [4] . As the learned Vice-Chancellor construed that will, it thus passed the assets of a business: it did not contemplate that they would necessarily be held in partnership at the date of death. The differences between that case and the present are very great. First, the competition here is not between an effective gift and an intestacy. The whole of the property which this testatrix had is unquestionably comprised in this will. The only question is to whom it goes, that is to say which clause carries it, the specific or the residuary disposition. That is an aspect of importance: see In re Portal and Lamb [5] . Secondly, it cannot be said here that a failure to construe the will as the appellant proposes would disappoint the intentions of the testatrix. The contrary may well be correct. Thirdly, cl. 4 cannot be construed as a gift of all the assets embarked in the business, whether or not a partnership be subsisting at the date of death, because in respect of the personalty, plant and livestock, it expressly requires that there be then such a partnership. The construction that the Vice-Chancellor put upon the will that he had to consider may have been influenced by his desire to avoid an intestacy and his conviction that the testator intended that his widow should take a life estate in the whole. But, whether that be so or not, I do not think that the case at all supports the appellant here.

[65]

Saxton v. Saxton [1] was cited, mainly, as I understood the argument, because there the testator's bequest to his wife of all his term and interest in a leasehold dwelling-house was held by Malins V.C. to carry the subsequently purchased freehold reversion upon the ninety-four years' term. The Wills Act was referred to, but on the basis that the will was to be construed as if it read "my house for all the interest I have in it". The Vice-Chancellor said: "The subject-matter of the devise is the house - the place in which he resided, and where he was desirous that his wife should continue to reside" [2] . "There is nothing more clear", he said, "than that this testator intended to give the house as a provision for his wife, and he intended by the words he used to give any interest he might have in that house" [3] . That case seems far removed from this. It is one of several cases in which, mainly because of the effect of s. 23, not s. 24, of the Wills Act, it was held that a gift of a property held on lease did not fail because the testator had acquired the reversion. In cases of that sort the subject-matter of the gift was taken to be the physical property, for whatever estate or interest the testator should have in it at his death. Subsequent dealings by him did not affect this. But, as I read the present will, the subject-matter of the gift was not Oak Park, but the share the testarix had in Oak Park as a tenant in common. Miles v. Miles [4] is another example of a case in which the reference to a leasehold title of a property given did not prevent the gift operating when the reversion had been acquired. Lord Romilly said "it is evident from the face of the will that the testator intended the description to apply to the messuage itself". Similar considerations apply in cases where a particular property was described in the will, e.g. as "Blackacre", and after the date of the will it was enlarged, not in interest by a change in title from leasehold to freehold, but in physical extent by the acquisition and addition of further lands: see In re Willis; Spencer v. Willis [5] .