Brackenbury v Brackenbury Nov see heart v tulk de g m g mistake in a will and  codicil as to the amount of a fund out of which young child be to be provide  for rectify on the evident intent of the testator SC Amb jewel ms car  Brackenbury have five young child by his will bear date the that of February  give certain estate to trustee for year in trust to raise pound to be pay to  his young son George and Edward Brackenbury and to his daughter Anna Susanna  Brackenbury Elizabeth Brackenbury and grace Brackenbury to his son at  twentyone and to his daughter at twentyone or marriage or their portion and  direct that in case any of the say young child shall become a old son that he  shall have no share of the say pound and subject as before he devise the same  and all his other real estate to his old son in fee who he make residuary  legatee he afterward have four more young child and Eden by a codicil bear  date the that of September recite that he have charge the beforementioned  estate with the payment of pound for his young child George Edward Anna  Susanna Elizabeth and grace and take notice that his family be increase since  the make of his will he charge his say estate with a further sum videlicet  with the great advance price that can be make thereof for the portion of the  plaintiff William Brackenbury Richard Brackenbury Langley Brackenbury and  Charlotte Brackenbury to be pay at such time and in such manner and subject to  such condition and limitation as by his will he have direct for payment of the  portion of his then young child this be a bill by the four young child to  establish the will and codicil and to have the estate sell for the equal  benefit of all the young child it be prove that the estate be of the yearly  value of pound and worth to be sell about pound and that the personal estate  after debt and legacy do not exceed pound Mr York and Mr Hoskins for the  plaintiff the will and codicil be to be take together and a construction make  upon both as one instrument the testator intention be to provide for the  plaintiff who be bear after the will as well as for the other young child who  be bear before he be mistake in the value of this estate he must have  apprehend that it be worth more than pound suppose he have be ask whether he  mean that the one set of young child shall be pay their portion before the  other he will have answer no that all shall partake of the fund equal if the  young child who be bear before the will be to be pay first the other young  child will not have a shilling court of equity will not only construe word of  a will Eden accord to the natural intention of the testator but will transpose  word and give effect to the intention even contrary to the word in uvedale v  Halfpenny p W they transpose the term provide for young child which stand  after the limitation to the issue male and place it before they in milner v  milner Ves sen the court give effect to the intention contrary to the word the  testator in that case have make a mistake in the computation of a legacy Lord  Hardwicke think that in the construction of will the intent ought to be regard  and that in order to effectuate it such a mistake ought to be relieve against  Mr jewel for the five young child and Mr Harvey for the heir at law however we  may wish a better provision for the afterborn child the intention must be  collect from the word make use of they strong import that the young child bear  after the will be to be provide for out of the estate after the pound be raise  a further sum be charge upon the estate for they to be pay in such manner as  the pound be to be pay to the other young child under the will they be in the  nature of residuary legatee and take what be leave after payment of the other  legacy there can be no doubt but that it be a mistake and that testator will  have provide otherwise if he have foresee the event but the court must judge  from what he have do not what he will have do the Lord chancellor this be a  question of intention arise out of the will and Eden er p codicil in case of  this kind it be absolute necessary Eden to take into consideration the  subjectmatter and the relative situation of the party though the will and  codicil be very inaccurate yet take these circumstance into consideration I  have not the least doubt but that he intend at the time of make his will not  to give legacy to his young child with partiality but to discharge his  parental duty by give all of they portion and therefore though he enumerate  his son and daughter by name yet he describe they as all his young child and  it be the same as if he have say I mean to give portion to all my young child  share and share alike if he have die without make a codicil it will not have  exceed the latitude of jurisdiction whichthis court have take to construe will  accord to the spirit of they and none but one superior court can convince I of  my error in such a construction court of equity construe will liberal and do  not shackle themselves with little narrow construction I consider the codicil  as make with two intent and purpose first to show that he do not mean to  exclude the afterborn child but intend to provide for they also as he have do  before for the other it enumerate the second set of young child in the same  manner as he have do the first set in the will and incorporate they in the  will his second object be to augment the quantum of the fund as his family  increase after take notice of the portion give by his will to his then young  child not consider as particular object otherwise than as they be young child  and that his family be increase he charge the estate with a further sum for  who for his family for all his young child it have be argue that he intend a  distinct sum for Eden the four child but I think he intend to give they equal  portion and not legacy which be arbitrary suppose the estate have be worth  pound instead of pound can he have intend that in one event they shall have  nothing and in the other twice as much as the former young child the plain way  to construe it be to say that he have before give pound to his then young  child he now give a large sum because his young child be increase in number it  be observable too that he allude to the condition c mention in the will  videlicet the limitation over in case the estate shall come to one of the  young son upon the whole I be of opinion and must declare that upon the true  intent and meaning of the say testator will and codicil his intention be to  make all his young child portion equal share and share alike that the term  devise to the trustee together with the inheritance be sell but in case the  produce of the real estate do not amount to the sum of pound the same must be  make good out of the personal estate of the testator as far as the same will  extend Reg lib a fol note see a similar mistake in calculation rectify in a  will on the authority of milner v milner in Phipps v Lord Mulgrave Ves vide  also Danvers v man bro c g Stebbing v walkey ib William v William ib garvey v  Hibbert Ves