The testator here carried on a large business, with numerous employees engaged in it, and he recognized his obligation to one, at any rate, of these employees. If there had been no authority upon the point I should have thought that in the will of such a testator the term "domestic servants," in contrast with servants employed in his business, referred to those who were employed by him to minister to the comfort and convenience of his domestic establishment, whether in town or country, irrespective of whether their work was carried on in the house or outside. That would seem to be the natural interpretation of the words in the mouth of this testator. But it is said that in view of the decision in Ogle v. Morgan, 1 De G. M. & G. 359, 42 Eng. Reprint, 590, and other authorities which followed it, the court is precluded from attaching that meaning to the words in this will. Now, looking first at Ogle v. Morgan, supra, one sees at once how slight is the justification for treating it as a leading case of general application for all time. It was there decided that a gardener must be excluded from sharing in benefits given to "servants in my domestic establishment" by the will of a nobleman who had obviously no business employees, and of whom it could not be affirmed that he used the expression "domestic establishment" in contradistinction, in any sense, to his business or any other establishment. In those circumstances it was there held that a gardener who was in re

ceipt of board wages, in lieu of food, did not participate in the bequest, apparently because it was thought that he could not have been intended by the testator to receive a sum so greatly in excess of that payable to the testator's indoor servants, who, being dieted in the testator's household, and at his expense, received wages proportionately smaller in amount. It is said now that a decision based upon a ground so narrow is to govern all future decisions on this question, arising on all wills, whatever the circumstances of the testator, provided only that the same or similar words are used therein. With the other members of the court, I think that that cannot be so. At the same time I agree with what has been said by my lord that neither are we bound by the decisions as to the meaning of the expression "domestic servants" in cases under the Unemployment Insurance Act. On the whole, however, looking at the wording of this will in view of all the relevant circumstances of the case, I am of opinion that these appellants are entitled to share in this gift. Appeal allowed.

Solicitors: Batten & Co., for all parties.

NOTE.

Devise or bequest to beneficiary designated only as one who shall render service, or occupy specified position or status other than mere relationship, is the subject of the annotation commencing post, 775.

validity.

to those who shall take care of me during my last days, whoever they may be.

"I cannot now name them by name, as I at this time have no home and will do the best I can to find a place to spend my last days, and it is to those who shall take care of me during my last days that I want the said residue of my estate to go in fee simple."

The will bears date February 18, 1920. At that time she was staying at the home of the appellant, and was in normal health. On March 18, 1920, she went to the home of her sister in the neighborhood to attend the funeral of her brother-in-law, and on March 21 she was taken suddenly ill, and appellant was notified of the fact, and he and his wife went after her in an automobile and brought her to their home, where she died on March 25. A few days after her death her will was admitted to probate, and the appellant claimed the residuary legacy. On November 7, 1920, the bill in this cause was filed by the executor of Rebecca H. Burton, in which the following charges, allegations, and statements are made:

"Your complainant is advised, believes, and charges that the paper writing above mentioned is so vague, uncertain, and indefinite that it is in law null and void and of no effect, but your complainant desires to ask the aid and advice of your honorable court in a construction of said paper as to whether said paper is in fact null and void and of no effect and should be so treated by your complainant in the administration of the estate of the said Rebecca H. Burton.

"Your complainant is further advised, believes, and charges that there is no person in existence who could claim properly to come under the provisions of said paper if it should be construed to be a valid and legal will of the said Rebecca H. Burton.

"Your complainant, however, has heard and been advised that one L. 38 A.L.R.-49.

B. Bosserman, a resident of the city of Staunton, claims that the paper above named is a good and valid will, and that he is entitled under said paper to the entire estate of the said Rebecca H. Burton.

"Under this state of facts, your complainant is advised that he is entitled to come into a court of equity and have the court construe said paper and advise him as to how he shall administer and settle the estate of the said Rebecca H. Burton, deceased."

J. E. Burton, the illegitimate son of the testatrix, and appellant, were made parties defendant, and filed their several answers, in which they set forth their respective claims to the estate. Evidence was taken, and the trial court, being of opinion that the appellant, "L. B. Bosserman, does not answer the description of the person designated and described by the testatrix in her last will and testament as the person entitled to take her estate at her death," directed the executor, after the payment of debts and costs of administration, to "turn over the residue of said estate to John E. Burton, the only child and heir at law of the testatrix." From that decree an appeal was taken by L. B. Bosserman.

In the brief of counsel for the appellee John E. Burton, it is said:

"The two clear-cut and distinct grounds upon which our claim of invalidity is based are:

"First, that the will is so vague and uncertain that it must be declared null and void; and, further, that it does not satisfy the requirement of our statute requiring part of a will to be in writing; and, second, that the evidence conclusively shows that it was not the purpose or intention of testatrix, either at the time the will was drawn, or at any time thereafter, that appellant should become the, beneficiary of her will.

"The learned court below did not pass upon the first question for the reason that the evidence demonstrated to its satisfaction that the

second ground was so well taken that it was not necessary to pass on any other question."

Wills-bequest to one caring for testator in last illness-validity.

The will is not void for vagueness or uncertainty, nor because not wholly in writing. It is not essential to the validity of a will that a legatee or devisee shall be designated by name in the will. It is sufficient if he be

-validity-description of legatee.

so described therein as to be readily ascertained and identified by the aid of extrinsic evidence. The extrinsic evidence in such cases does not create the legatee or devisee, but simply points out the person described in the will. It applies the will to the objects or subjects therein described or referred to. 1 Redf. Wills, 4th ed. 274; 30 Am. & Eng. Enc. Law, 2d ed. 682; Dennis v. Holsapple, 148 Ind. 297, 46 L.R.A. 168, 62 Am. St. Rep. 526, 47 N. E. 631, and cases cited; Roy v. Rowzie, 25 Gratt. 599; Hawkins v. Garland, 76 Va. 149, 44 Am. Rep. 158.

-necessity of testator having object of bequest in mind.

"Nor is it essential that the testator have in mind the particular individual upon whom his bounty may fall. If he makes the particular object of his bequest ascertainable with certainty that will be sufficient." Lear v. Manser, 114 Me. 342, 96 Atl. 240; Knowles v. Knowles, 132 Ga. 806, 65 S. E. 128.

In Dennis v. Holsapple, 148 Ind. 297, 46 L.R.A. 168, 62 Am. St. Rep. 530, 47 N. E. 631, in speaking of a very similar bequest to that here under consideration, it is said: "It is true, as insisted, that it did not name any particular person as devisee, nor was there anyone at the time of its execution who occupied the status, or answered to the beneficiary therein described; still, however, it so designated the person whom the testatrix contemplated and intended should have the estate bequeathed that he or she, by the means thereof, at her death, could be clearly identified and ascertained

Lear v. Manser, supra, is on all fours with the case in judgment. In that case the testator devised and bequeathed all the residue of his estate "to my said executor, in trust, to be paid by him to such person or persons, or such institution as shall care for me in my last sickness, such payment to be made to the person or persons, or institution, or any or all of them as may in the discretion of my said executor be equitably entitled thereto, and the payment by my said executor and receipt taken by him therefor shall be a sufficient voucher and discharge to him under the provisions of this item. of this item. This provision of my will is to be considered a legacy or bequest and not as a performance of any contract obligation on my part."

It was held that the will created a private trust in favor of the defendant, who cared for the testator in his last sickness, and that she was sufficiently specified and designated by the will; that it was unnecessary to designate the beneficiary by name, or that the testator have in mind the particular individual who would become the beneficiary under his will. It was said, among other things: "It is not required that the beneficiary of a private trust should be designated by name in the instrument creating the trust. Some other designation will suffice if it make certain the beneficiary intended. Nor is it essential that the testator have in mind the particular individual upon whom his bounty may fall. If he makes the particular object of his bequest ascertainable with certainty, that will be sufficient. Gifts in trust for a specified class of persons, or for persons specifically defined and described, though not named, are not void for uncertainty in respect to the beneficiaries, because such bene

ficiaries are capable of identification by the terms of the instrument creating the trust." See also 1 Redf. Wills, 4th ed. 275.

In 28 R. C. L. 275, the law on this subject is stated as follows: "It is not necessary for a testator to give the full name or description of a legatee or devisee, in order to give effect to the bequest. It is sufficient if the beneficiary is designated with reasonable certainty; and in such a case the beneficiary may be identified by parol evidence of surrounding facts and circumstances. Such evidence is admissible to show the legatee, either where the description in the will applies to several, or when it does not apply to any with accuracy. Extrinsic evidence, in such cases, does not create the devisee or legatee, but only serves . to point out the person intended as such by the testator in his will."

In Summers v. Summers, 198 Ala. 30, L.R.A.1917C, 597, 73 So. 401, a different conclusion was reached, but the only opinion delivered was that of the minority judge, whose whole argument is adverse to the conclusion of the majority, and it is said by the annotator in L.R.A. 1917C, supra, that the conclusion of the majority of the court is "not in accord with other cases involving a similar situation."

Early v. Arnold, 119 Va. 500, 89 S. E. 900, is relied on by the appellees in support of the contention that the bequest in the case in judgment is too vague and uncertain to be enforced. In that case there was a devise to a son, with a remainder over, if he died without heirs, "to whoever has been his best friend." The son made a will declaring that his uncle and aunt had been his best friends. The court held that the devise of the remainder over was void for uncertainty, that who had been the best friend of the son in his lifetime was not susceptible of proof, and that even the will of the son showed an inability on his part to discriminate between his uncle and his aunt. The case is not help

ful in construing the will here in controversy.

Sims v. Sims, 94 Va. 584, 64 Am. St. Rep. 772, 27 S. E. 436, and Sprinkle v. Hayworth, 26 Gratt. 384, are relied upon to support the proposition that every part of a will must be in writing. That proposition is not disputed, but it has no application to the case in judgment. Every part of the will is in writing, and the only question involved in this branch of the case is: Can a legatee in a will be designated by an adequate description by which he can be readily ascertained and identified by the aid of parol evidence, as well as by name? We do not doubt that he can be.

Having determined that the will is not void for uncertainty, we pass to the inquiry whether there are any persons who answer the description of the residuary legatees given in the will.

The testatrix was seventy-six years of age, and had by her own. labor and strict economy accumulated an estate of $1,800. She was in a normal condition of health and vigor for one of her years, but she had no home where she could expect. the care and attention which her advancing years admonished her would soon be needed, and she had no near relatives who were in a condition to provide the same for her, except her natural son, who lived in Kentucky. She had a maiden sister, Kate Burton, who was also advanced in years, and practically without means, a brother, William C. Burton, who lived at Parnassus, in Augusta county, who had a family of his own, but was not in condition to provide her a home, and a sister, Susan Alexander, the wife of J. W. Alexander, who lived in Augusta, but were both old and feeble, and had contracted with a neighbor to give him their property in consideration of the fact that he would look after and care for them the residue of their lives. She also had two nephews living in West Virginia, one of whom had for some years provided a house at Parnassus