McQUELLIN V. McQUELLIN 41/1930

l | shoe lin v. Meque Lin HV Qa fea

ISAACS CT I have stated what I reeard as the principles governing

the construction of lls in which there are apparent emissions, in

Fell v. Foll 31C0.%Re 268. 1 10 net propose to restate them here, Put

I would cite a Aictum of Turner LJ. in Penoook ys $& Geyat P77, that "if a sensible construction can be put veon the words

Bde G. Me

"as tuey stand, it 1s ¢lear that we shouda not be jwtified in making "any interpolation". Now in the pmsent case, a sensible construction cannot be placed upon portion of the will- the portion, namely, containi: the intermediate dec aration - unless on omiesion, »hich is evident upon the face of the document, is supped. If the will is read Mterally and without any interpolation being made,-it is impossible, with regard to th persenal estate, to give any operative effect, during the intermediate period, to the trusts declared as to the xanée "rents interest and yearly "produce thereof" referred to in that dec Jeration, What words, then, dre required to rectify the apparent mistake and give a sensitle meaning to

the will? I think that, by necessary implication, the words "and perscna

We \veved Ja (1930

shoul be auwpeted supplied after the vord "real" oosurring in the ¢ lause "and to stand possessed of the proceeds of the sale and conversion of "my real estate".

The appea 1 should be a llewed.

! / Hogue 1lin_v. Moquellin :

I think the case turns vpon the question whether an irtertion is shewn on the part of the testatrix to eubject the proceeds of her pereonal estate to the samo trunts as those of her real estate. The cords which axa empress ly dispose of the beneficial interest in the proceeds cf persona lty have been cwitted, clearly, by mistake; but if, on the face of the #111, there is enough to establish satiefactorily that personalty was to co upon the same lmitatiena as realty, the intention should be carried into effect The allusiens in the will to the personal estate, in my opinion, do shew such an intention. The ofause containing the declaration as to-income pend- ing convereion appears to me to indicate that there in one set of trusts in Tespeot cf both sets or classes of property. The use of the word "reespectiv "ty" in that o}use vas relied upon as shewing or suggesting two sets of limitations. sut where it first occura, it 1e used vecause the power of ax sale enables the trustees to sell from time to time, so that different property might be sola at different times, The word "respective ly" where used for the secend time in that olause distinguishes vetween "the rents