References: [1969] UKHL 13, 1970 SC (HL) 28, 1970 SLT 66,
Links: Bailii
Coram: Lord Clyde
Ratio: ‘The first question put to us in the case is whether the third party is entitled to a one-third share in the residue of the testator’s estate. The answer to that question depends primarily upon the meaning to be given to the words in the residue clause, which I have quoted, ‘jointly with the issue who may survive me of such of my children as may have predeceased.’ If ‘my children’ means ‘my said children,’ that is, the two named children, who are the second parties, then the clause would clearly exclude the third party from participation in the residue. But I am unable so to construe the residue clause. If that had been what the testator had intended to provide, it would have been very easy to have said so. But in place of doing this he has made what he describes as a joint gift to two named children and to the issue of such of his children as may have predeceased him. The words ‘my children’ are not confined to the named persons in the immediately preceding part of the clause. The third group, therefore, to whom this bequest was made would cover the third party, who was, in fact, the issue of a child who had, in fact, predeceased him.’
Last Update: 29 August 2019
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