Abbott v Middleton
| Jurisdiction | England & Wales |
| Judgment Date | 22 November 1855 |
| Date | 22 November 1855 |
| Court | High Court of Chancery |
English Reports Citation: 52 E.R. 813
ROLLS COURT
S. C. 25 L. J. Ch. 113; 1 Jur. (N. S.) 1126; 4 W. R. 69. Affirmed on appeal, 7 H. L. C. 68; 11 E.R. 28; 28 L. J. Ch. 110; 5 Jur. (N. S.) 717. As to supplying words, see Eastwood v. Lockwood, 1867, L. R. 3 Eq. 491; Wood v. Wood, 1867, L. R. 4 Eq. 53. As to rule of construction of wills, see Nunn v. Hancock, 1868, 16 W. R. 819; Gordon v. Gordon, 1871, L. R. 5 H. L. 254; Hervey-Bathurst v. Stanley, 1876, 7, 4 Ch. D 275, and in H. L. (sub. nom. Bathurst v. Errington), 2 App. Cas. 698; Taylor v. St. Helen's Corporation, 1877, 6 Ch. D. 271; Leach v. Jay, 1877, 6 Ch. D. 498; In re Hudson, 1882, 20 Ch. D. 417; Rhodes v. Rhodes, 1882, 7 App. Cas. 204; Evans v. Ball, 1882, 47 L. T. 167; Maharani Indar Kunwar v. Maharani Jaipal Kunwar, 1888, L. R. 15 Ind. App. 147; Locke v. Dunlop, 1888, 39 Ch. D. 393; In re Rayner [1904], 1 Ch. 191. Cf. Sheridan v. O'Reilly [1900], 1 Ir. R. 386.
[143] abbott v. middleton. Nov. 15, 22, 1855. [S. C. 25 L. J. Ch. 113; 1 Jur. (N. S.) 1126; 4 W. R. 69. Affirmed on appeal, 7 H. L. C. 68 ; 11 E. R. 28 ; 28 L. J. Ch. 110 ; 5 Jur. (N. S.) 717. As to supplying words, see Eastwood v. Lockwood, 1867, L. R. 3 Eq. 491; Wood v. Wood, 1867, L. R. 4 Eq. 53. As to rule of construction of wills, see Nunn v. Hancock, 1868, 16 W. R. 819; Gordon v. Gordon, 1871, L. R. 5 H. L. 254; Hervey-Bathurst v. Stanley, 1876, 7, 4 Ch. D. 275, and in H. L. (sub. nom. Bathurst v. Erringtori), 2 App. Cas. 698; Taylor v. St. Helen's Corporation, 1877, 6 Ch. D. 271; Leach v. Jay, 1877, 6 Ch. D. 498; In re Hudson, 1882, 20 Ch. D. 417 ; Rhodes v. Rhodes, 1882, 7 App. Cas. 204 ; Evans v. Ball, 1882, 47 L. T. 167 ; Maharani Indar Kunwar v. Maharani Jaipal Kunwar, 1888, L. R, 15 Ind. App. 147; Locke v. Dunlop, 1888, 39 Ch. D. 393; In re Rayner [1904], 1 Ch. 191. Cf. Sheridan v. O'Reilly [1900], 1 Ir. R. 386.] In construing a will words may be supplied, changed and transposed, whenever the context requires it. Bequest to testator's widow for life, and on her decease, to his son for life, and on his demise the principal to become the property of any children he might leave. Then followed a gift over in case the son died before his mother (omitting the words " without leaving children "). The son predeceased both his father and mother, leaving an only child, who survived them. Held, that such child was entitled to the principal sum after the grandmother's death ; and that to effectuate 814 ABBOTT V. MIDDLETON 21BEAV. 144. the intention of the testator, the words "without leaving any child "must be implied after the word "dying." In 1834 General Carpenter, while at the Cape of Good Hope, made his will, by which he bequeathed to his wife an annuity of 2000 a year for life, and directed a particular fund to be set apart for securing it. He proceeded to express himself in the following terms :-" And on her decease the sums provided and set apart for such payment to become the property of my son George Carpenter (now captain in His Majesty's 41st Eegiment of Foot), so far as he the said George Carpenter my son shall receive the interest on such sum during his life, and on his demise the principal sum to become the property of any child or children he may leave born in lawful wedlock, and in such sums as my said son shall will and direct. But in case of my son dying before his mother, then in that case the principal sum to be divided between the children of my daughters, the deceased Jane Eicketts and Mary Paxton, and of my now surviving daughter Eliza Middleton (should she leave any issue), in equal portions to each." The testator then gave his daughter Eliza Middleton one...
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[1] Michael MC Intyre [2] Michael MC Intyre [3] Ann MC Intyre Appellants v Grace Steele Respondent [ECSC]
...a bequest in a will. It is certainly not permissible to rewrite the will by giving effect to an intention not expressed therein. Abbott v Middleton [1858] VII H.L.C. 68 applied; Scale v Rawlins [1892] A.C. 342 applied. MITCHELL, J.A. [AG.] 1 The late Charles Arthur McIntyre, more affectio......
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...as I stated on a former occasion, Lord Cottenham declined to follow it in a case in which I was counsel. The caae of Abbott v. Middldm (21 Beav. 143; 7 H. L. Cas. 68), is pressed on me. I thought the decision right and think so still, and it has been confirmed by the House of Lords, but the......
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