fa iD Anoxcf, Lance ff dlchef ———_. - JODGENT gues tion Fadsed, in thie appeal is whether on the true. construction of the. will of TLR. O. Arthur, deceased, the appellant Sybil Nelson. is, entithes to a share in the ress vary estate of the testator. The testator Bled on the akth Jan. ; 31g leaving 'a: wild dated the Sth lov. 1918, zt eqaesthed. oertain - legacies including one of #200 to the appellant, and directed his trustees. to hole the, Tealdue of his eatate upen the 'trusta Br ne ' declared in pare. 4&5 ofthe will. These paragraphs are 2a follows: 4, "X ,Girect my trustees t@ hold the residue of my eetate upon trust to divide the same equally between my brothers and. sisters and: the children (per atirpes aud not percapita) of wy Jate bro- ther Charles Arthur and my sister Mary Raynor Mason the leaf men— toned. taking, the, share, whioh my. eaid. brother and. sister would have taken had he or she survived me" ate " In: the: event.of any brother or sister of, mine dying in my ifetime leaving chilaren living at my death such:children 'shall stand in the place of such deceased brother or sister and take any ohiliren, a brother Charlds, mentioned én the will, had. died - .facts were within the knowledge of the testator. per-stirpes and equally between them if more than one the share of 'my residuary estate which such deceased brother or sister would have taken if he or she had survéved me with the following exception that in the oase of the death of my brother George H.Arthur in my lifetime then the share in my estate.to. which my said. brother... ' would have been entitled had he survived me shall be held by my trus. '$ees upon trust for his son 'George Arthur as J, consider. his daughter is otherwise provided for" At the date of the will and at the date of testator's dea: a brother George and a sister charlotte were Living, tro 'brothers, . John and Albert, and a sister RL .charda, had died without having "had , leaving a ohild then living, and a 'eister Kate had died' on "the: atth Nov. I9I7, leaving her daughter, the appellant, her surviving. These A great number of cases have been olted £0 us, from Lorin, v. Thomas I Dr & Sa 497 to Gorringe v Yanletedt 1907 A.C. 225," Barraclough v. Cooper 1908 2 oh rel, Re Willians 19rh r oh 2rd, I9ry 2 Ch. C.A.I, and Re Brom 1917 2 'Ch 252, but in the 'end the. intentto of tho, testator must be gathered from the words he has used." vf : In Cleuse 4 , the gilt "between ny brothera and siaters adséa not extend to prothera aod giaters who. are dead, and the testator recognises this, for hea Boas on to provide for the onildren of a deceased Drother and shatter. Bat the appellant contends that: the tes- tator makes, in Clause 5, an original and independent gift for the children of any brother or gister who prodsteaged Him. The introductea f the pat "rama facto 'point to futurity". Tiey' "appear to Ww worda be disposing only 'of the share'"of i brother or 'aiater "who shall there- after die" jn tho lifetime of the testator, 'and net tc a brother or sister who was dead at the tine of the making of the will. ; Ia there anything in the will which enable the Court to "Gepart from the netyreb und £iret meaning of the words used"? (See Goerringe Vv. Mahlatedt 1607 A.C, 228); The gift in Clauae*4 to the onia dron of the tostator's deceased brother Charlee and hia deceased slater Mary are superfluous unless the introductory words to Clause 5 are construed acoording to their nabural meaning. Moreover the gift in Clause 4 indicates that the teetator's mind wag directed torthe children of brothers and sisters who were dead at the date of the making of the:will . .Yet he only provides in that ocleuse for the children of Charles and Mary, omitting any mention of the appellant, the ohild of his sister Kate. And @t cannot be said that the name and position of this child was not present to his mind, for the will contains a legacy to her of £200. "The gift to "brothers and sisters" in Clause 4 of the will is not quite appropriate to the condition of the testator's family at the time mé of the 'making of the will, for only..one brother and ohe sister -were then alive, but the gift cannot, as already pointed out, be construed so as to include all brothers and + sisters who were then dead. Clause 5, in its natural meaning, is given its fuli effect if apslied to the testator's brother and sister George and Charlotte and to their respeetive children. The exclusion offthe daughter of George was from the benefit of the gift contained in Clause 5 was re- ~ ta. Mae lged upon by the appellant. Mat the appellant ia not mentioned saaa exception in 'Clause 5 because her mother was dead at the date of the making of the will, whereas the brother, George, was then alive, so that 6% was neceagary that his daughter be specifically referred to if she was to be excepted from the benefits of, that clauge. The facts deposed to in pph. 3 of the affidavit of the trus tees are inadmissible for the putposesf of the construction of the teatator's will and have been excluded from coneideration. The decision of the Supreme Court of Tasmania is affirmed, and the appeal is dismissed with costs.