contemplated be done substantially, though not specifically, will abstain from making a construction which would eventually defeat the object of the proviso. Thus, in a case, where a settlement making a provision for younger children contained a declaration, that if the father should give portions to such children on their marriage or should otherwise provide for them, those portions or provisions should go in discharge of their claims under the settlement; the declaration was held to extend to advancements made to the children on other occasions than marriage, though the primary sense of the words "or otherwise provide for them" was conceded to be the making of a provision by other means than money,-as by a gift, for example, of real estate (a).

On the same principle it has been held, that the object of a proviso directing the portions not to be raised, in case the father in his life-time or at the time of his death should give money or lands of tantamount value to the children, extended to the bequest of a residuary personal estate. The objections taken were the uncertainty as to the time at which the bequest might commence in enjoyment, and the fact of its consisting neither of money nor of land (b).

But the principle has been carried still further; for it has been decided, that a provision by will comes sufficiently within the meaning of an advancement in the parent's life-time, to prevent the raising of portions

(a) Leake v. Leake, 10 Ves. 477, 488.

(b) Richman v. Morgan, 1 Bro.

C. C. 63; 2 ib. 394. See also 15
Ves. 513.

for children who may be so preferred. This point was on several occasions strenuously controverted; but the opposition has only served more fully to establish the rule (a).

It must however be observed, that a distributive share under an intestacy is not within the import of an advancement in the parent's life-time (b).

For the same reason that the bequest of a residuary personal estate has been held to come within the scope of a proviso declaring that gifts of land or money should go in discharge of pecuniary portions, it was decided in the case of Pughe v. Duke of Leeds (c), that a proviso expressed in similar terms prevented a gift of East India Annuities from being taken as an additional provision.

We may add, that where a proviso of the nature under consideration allows the father, on advancing his children, to declare that the advancements shall not go in satisfaction of the portions raiseable under the settlement; not only is the father, in such case, at liberty to direct that a child advanced shall notwithstanding receive his full portion, but he has also a right to consider himself the purchaser pro tanto of that portion, and to declare in effect that it shall remain a charge on the estate for his own benefit (d).

(a) Leake v. Leake, 10 Ves. 477, 489; Onslow v. Michell, 18 Ves. 490; Goolding v. Haverfield, M'Clel. 345.

(b) Twisden

Ves. 413.

V.

Twisden, 9

(c) 6 Bro. P. C. by Toml. 125; 1 Bro. C. C. 67, n. S. C.

(d) Noel v. Lord Walsingham, 2 Sim. and Stu. 99.

CHAPTER VIII.

PRESUMPTIONS OF LAW CONTINUED.

Of the presumed Ademption of Legacies to Children by subsequent Portions.

EVERY provision made by a parent in favour of a child, whether it take effect in the life-time of the parent or after his death, is presumed to have been made with immediate reference to the natural obligation he is under to provide for those who stand in such relation to him. And as the parent is the only person competent to estimate and balance between the relative claims and necessities of his children, he is regarded as the proper judge of what will satisfy the obligation. If this be effected by the gift of a legacy, the bequest is taken as ascertaining the whole amount of the provision intended to be made for the particular child, and as completely discharging the parental duty.

On these considerations is founded the rule to be treated of in the present chapter: which rule is, that if a parent, or one in loco parentis (a), after making a

(a) It may not be amiss here more at large to consider, who come within the description of persons standing in loco parentis. Generally, it may be laid down,

they are those who assume the parental character; but this must very clearly appear. Where an orphan is received under the care of, or is supported by a relative, as

pecuniary provision for a child by will, advance to such child a portion on marriage (a), or a sum of money

for preferment in business (a), such portion or sum, supposing it equal with or greater than the testamentary bounty, is prima facie an ademption of the legacy. In both instances the motive of the gift is evidently the same, and as the will shows the amount of fortune intended to be given, a presumption not unreasonably is held to arise, that the advance was designed in substitution of the posthumous provision (b). This doctrine, it is true, has been impugned as likely often to disappoint the testator's intention (c); but, besides that it is difficult to enter into an inquiry of this kind, it is certainly quite as probable that in the great majority of cases the presumption has the effect of fulfilling the intention.

The circumstance of the party afterwards" ratifying and confirming" his will by a codicil (d), though expressly "in all respects" (e), does not preclude the constructive satisfaction. The reason is, that these words amount only to a new publication of the will; in which view they are simply words of course, and cannot therefore be understood to evince the testator's final and deliberate resolution on the subject. But re

7 Ves. 508; Dwyer v. Lysaght, 2 Ball and Be. 156.

(a) See Hoskins v. Hoskins, Prec. Cha. 263; Rosewell v. Bennet, 3 Atk. 77; Roome v. Roome, 3 Atk. 181.

(b) See 2 Atk. 492, 518; Ambl. 326; 1 Ves. jun. 107; 2 Cox, 220; 7 Ves. 515; 18 Ves. 153.

(c) 1 Bro. C. C. 426-7; 1 Ves. jun. 109.

(d) Izard v. Hurst, 2 Freem. 224; 2 Eq. Abr. 769, S. C.

(e) Monck v. Lord Monck, 1 Ball and Be. 298, 306. Sed vide 3 Atk. 183-4.

K