ERNEST WILLIAM ADAMS Vs. MRSHSFGRAY

JUDGEMENT

(1.) The task before us in this appeal is, as Lord Loughborough, the Lord Chancellor, observed in a case, to find out the meaning of words which the party using them did not understand. It relates to the construction of the will of one, Charles Gray. The matter came up before Mr. Justice Devadoss on the Original Side on a summons taken out by the Administrator-General of Madras for the purpose of construing the will and determining the rights thereunder of two claimants on behalf of each of whom it was urged that in the events that have happened he or she has become entitled to the part of the estate in question. There can be no doubt that the first principle to be borne in mind in regard to construction of wills is that, as far as possible, the real intentions of the testator as expressed in the will should be gathered and ascertained and given effect to. The so-called rules of construction to be found in such abundance, more especially in English decisions, are merely aids to enable us to discern or discover the real intentions of the testator and not artificial rules which should be allowed to over- ride in any given case the expressed intentions of the testator.

(2.) Lord Halsbury, the Lord Chancellor, referred in the case of Leader V/s. Duffey (1888) LR 13 AC 294 to the modern view which he thought was in accord with reason and commonsense that whatever the instrument it must receive a construction according to the plain meaning of the words and sentences therein contained. Referring to this observation of the learned Lord Chancellor, Lord Justice Cottoni in the case of In re Hamlet (1888) LR 39 Ch D 426 observes that rules of construction are only intended to aid us where there is ambiguity, and not to enable us to get rid of the express words of the testator if expressed in clear language. This would undoubtedly be so in the case of an instrument expressed in plain language by a layman. When however we come to an instrument, which, having regard to the form and the technical language employed may aptly be described as being in a language which the party using did not himself understand we come to a state of things in which we cannot altogether ignore even the technical rules of construction. The will before us was not only by an Englishman and in the English language but was apparently drawn up by one of the leading Solicitors in Madras at the time, and bristles with technical expressions and clauses which are to be found in all common forms and in most of the cases. When such highly technical expressions are used in an instrument it is not possible entirely to ignore the construction placed on such technical expressions by eminent and learned Judges in the Courts of Chancery in England; because it must be assumed that the technical expressions employed have been employed with the meaning and significance generally believed to attach to them in the particular branch of the law.

(3.) We may observe in this connection that in view of the very difficult questions involved we enquired of both the parties whether they did not consider it would be the better course to have the matters finally decided in an action instead of on an application; but both of them have agreed that any decision come to on this application should have the same effect as a decision in a suit between them so as to bind them finally.