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Illustrations

(i) A, by his will, bequeaths 1,000 rupees to his eldest son or to his youngest grand-child, or to his cousin, Mary; a Court may make inquiry in order to ascertain to what person the description in the will applies.


(ii) A, by his will, leaves to B "my estate called Black Acre." It may be necessary to take evidence in order to ascertain what is the subject-matter of the bequest; that is to say, what estate of the testator’s is called Black Acre.
(iii) A, by his will, leaves to B "the estate which I purchased of C". It may be necessary to take evidence in order to ascertain what estate the testator purchased of C.

76. Misnomer or misdescription of object
(1) Where the words used in a will to designate or describe a legatee or a class of legatees sufficiently show what is meant, an error in the name or description shall not prevent the legacy from taking effect.
(2) A mistake in the name of a legatee may be corrected by a description of him, and a mistake in the description of a legatee may be corrected by the name.

Illustrations

(i) A bequeaths a legacy to "Thomas, the second son of my brother John". The testator has an only brother named John, who has no son named Thomas, but has a second son whose name is William. William will have legacy.

(ii) A bequeaths a legacy "to Thomas, the second son of my brother John". The testator has an only brother, named John, whose first son is named Thomas and whose second son is named William. Thomas will have the legacy.
(iii) The testator bequeaths his property "to A and B, the legitimate children of C". C has no legitimate child, but has two illegitimate children, A and B. The bequest to A and B takes effect, although they are illegitimate.
(iv) The testator gives his residuary estate to be divided among "my seven children" and, proceeding to enumerate them, mentions six names only. This omission will not prevent the seventh child from taking a share with the others.
(v) The testator, having six grandchildren, makes a bequest to "my six grandchildren" and proceeding to mention them by their Christian names, mentions one twice over om "five hundred" to his daughter A and a legacy of "five hundred rupees" to his daughter B. A will take a legacy of five hundred rupees.

78. Rejection of erroneous particulars in description of subject
If the thing which the testator intended to bequeath can be sufficiently identified from the description of it given in the will, but some parts of the description do not apply, such parts of the description shall be rejected as erroneous, and the bequest shall take effect.

Illustrations

(i) A bequeaths to B "my marsh-lands lying in L and in the occupation of X". The testator had marsh-lands lying in L but had no marsh-lands in the occupation of X. The words "in the occupation of X" shall be rejected as erroneous, and the marsh-lands of the testator lying in L will pass by the bequest.


(ii) The testator bequeaths to A "my zamindari of Rampur". He had an estate at Rampur but it was a taluq and not a zamindari. The taluq passes by this bequest.

COMMENTS
In order to effectuate the intention as gathered from the contents of the Will, the court will be justified in reading the Will in the correct form as expressing the intended meaning; Sajanibai v. Surajmal, 1985 MP LJ 227.

79. When part of description may not be rejected as erroneous
If a will mentions several circumstances as descriptive of the thing which the testator intends to bequeath, and there is any property of his in respect of which all those circumstances exist, the bequest shall be considered as limited to such property, and it shall not be lawful to reject any part of the description as erroneous, because the testator had other property to which such part of the description does not apply.
Explanation — In judging whether a case falls within the meaning of this section, any words which would be liable to rejection under section 78 shall be deemed to have been struck out of the will.

Illustrations

(i) A bequeaths to B "my marsh-lands lying in L and in the occupation of X". The testator had marsh-lands lying in L, some of which were in the occupation of X, and some not in the occupation of X. The bequest will be considered as limited to such of the testator’s marsh-lands lying in L as were in the occupation of X.


(ii) A bequeaths to B "my marsh-lands lying in L and in the occupation of X, comprising 1,000 bighas of lands". The testator had marsh-lands lying in L some of which were in the occupation of X and some not in the occupation of X. The measurement is wholly inapplicable to the marsh-lands of either class, or to the whole taken together. The measurement will be considered as struck out of the will, and such of the testator’s marsh-lands lying in L as were in the occupation of X shall alone pass by the bequest.

80. Extrinsic evidence admissible in cases of patent ambiguity
Where the words of a will are unambiguous, but it is found by extrinsic evidence that they admit of applications, one only of which can have been intended by the testator, extrinsic evidence may be taken to show which of these applications was intended.

Illustrations

(i) A man, having two cousins of the name of Mary, bequeaths a sum of money to "my cousin Mary". It appears that there are two persons, each answering the description in the will. That description, therefore, admits of two applications, only one of which can have been intended by the testator. Evidence is admissible to show which of the two applications was intended.

(ii) A, by his will leaves to B "my estate called Sultanpur Khurd". It turns out that he had two estates called Sultanpur Khurd. Evidence is admissible to show which state was intended.

81. Extrinsic evidence inadmissible in case of patent ambiguity or deficiency
Where there is an ambiguity or deficiency on the face of a will, no extrinsic evidence as to the intentions of the testator shall be admitted.

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