Re Jebb, deceased ; Ward-Smith v Jebb

We need not trouble you, Mr Lazarus.

In this case the testator, Mr Thomas Henry Jebb, made his will on the 7th October, 1947, when he was 86 years of age. He died just over a year later on the 10th November, 1948. He had a son, and by that son he had two grandsons, and they are provided for by the will. He also had a daughter. She was born on the 31st October, 1900. She had an unfortunate marriage experience. She went through a form of marriage in 1934, but the marriage was not consummated, and there was a decree of nullity on the 17th December, 1938. Thereafter this daughter went back to her maiden name and lived a quiet retiring life with her father and mother. When she was 47 years of age she adopted a small child, Roderick. She had the child from April 1947 when he was fortnight old; and she had him with her until she adopted him on the 4th September, 1947, and an order of the court was made.

The testator, when he made his will in October 1947, having seen the child in his pram and knowing all about the adoption, made this bequest in his will: "From and after the death of my said daughter my trustees shall hold my residuary estate as to both capital and income upon trust for such of them the child or children of my said daughter and my grandson Anthony Hope Jebb as shall be living at the date of my death and shall attain the age of twenty-one years except in the case of the said Anthony Hope Jebb who shall attain the age of twenty-five years and if more than one in equal shares". As I have said, the daughter was then aged 47 and it was improbable on the evidence that she would ever marry or have a child of her own. It was far more probable that she might have adopted another child as a brother or sister for this adopted child. The testator died in November 1948, and his wife, the grandmother, died a year or two later. The daughter, who had adopted this child, lived on until she died on the15th August, 1959.

A question has now arisen whether on this bequest the adopted child of the daughter takes or no. If this will had been made after 1950, then by statute the presumption would be that in the will the word "child" included adopted child. But this will was made in 1947; and we have to apply the Adoption of Children Act, 1926, which says in Section 5(2) that: "The expression 'child', 'children' and 'issue' where used in any disposition….shall not, unless the contrary intention appears, include an adopted child or children or the issue of an adopted child". Mr Justice Roxburgh held in Re Fletcher. 1949, 1 Chancery, p. 473, that it is not necessary that the contrary intention should appear on the face of the will itself. It is sufficient if the contrary intention appears from the circumstances properly in evidence, that is to say, in the light of the surrounding circumstances.

In construing this will, we have to look at it as the testator did, sitting in his armchair, with all the circumstances known to him at the time. Then we have to ask ourselves: "What did he intend?" We ought not to answer this question by reference to any technical rules of law. Those technical rules have only too often led the Courts astray in the construction of wills. Eschewing technical rules, we look to see simply what the testator intended.

Looking at this will in the light of the surrounding circumstances it seems to me quite plain that when the testator spoke of the "child or children of my said daughter", his intention was to refer to the adopted child, Roderick, or any further adopted children that she might have. He did not contemplate that she might marry and have a child of her own. But if the extreme improbability had taken place that she had Married and had a legitimate child, I think that child would be included too. I do not agree with what Mr Justice Buckley said upon that point.

The argument which found favour with Mr Justice Buckley was based on previous cases. It was said that the Court should restrict the word "child"...