with strangers, where such conversations bear generally a character of seriousness and veracity (a): and last of all, vague and frivolous discourse with persons who seek officiously to intrude themselves into the testator's confidence; which, when an intention appears on the part of the parent to evade inquiry, and mislead the interrogator, is in truth altogether devoid of force (b). But extrinsic evidence is not only admissible to repel a presumptive ademption, it is also allowed to fortify the presumption when impeached. Thus a recital in the marriage settlement of the child, stating the sum advanced to be given as the child's portion (c), or an acknowledgment to that effect in a memorandum delivered on receiving the money (d), has been relied on as demonstrative of the parties' understanding on the subject. Parol declarations, likewise, are equally efficacious (e). It is observable, however, that testimony of the latter kind cannot be adduced to show that an ademption was intended, unless the circumstances of the case be such as primarily raise that supposition (f). (a) Dwyer v. Lysaght, 2 Ball and Be. 156. See also 7 Ves. 520. (b) Trimmer v. Bayne, 7 Ves. 508, 519, 520. (c) Farnham v. Phillips, 2 Atk. 215; Watson v. Earl of Lincoln, Ambl. 325. (d) Scotton v. Scotton, 1 Stra. 235. (e) Hale v. Acton, 2 Cha. Rep. 35; Hoskins v. Hoskins, Prec. Cha. 263; Pepper v. Winyeve, 8 Vin. Abr. 158; Biggleston v. Grub, 2 Atk. 48; Rosewell v. (ƒ) Farnham v. Phillips, 2 Atk. 215; Freemantle v. Bankes, 5 Ves. 79. See also Brown v. Selwyn, Forr. 240; 1 Ves. 323-4, cited. CHAPTER IX. PRESUMPTIONS OF LAW CONTINUED. Of the Presumption in Cases of Double Legacies. THERE are two classes of cases on this subject. The first comprises those in which both legacies are given by the same instrument; the second, those in which they are given by different instruments. But both these classes are susceptible of a subdivision:the former is into cases, where the same specific article is twice bequeathed; where sums of the same amount are given; and where the sums vary in amount: the latter, into cases where the legacies are specific, and where they are general. Whether the bequests be contained in the same or different instruments, if the subject of both be a specific article, as a particular piece of furniture, the gift is of necessity construed single, the repetition being obviously attributable to mistake or carelessness (a). When double pecuniary legacies (b) or double an (a) See per Aston, J., in Hooley v. Hatton, 1 Bro. C. C. p. 390, note; per Lord Thurlow, 1 Bro. C. C. 393; and per Lord Hardwicke, 2 Atk. 638. (b) Garth v. Meyrick, 1 Bro. C. C. 30. See also per Aston, J., and per the Lord Chancellor, in Hooley v. Hatton, 1 Bro. C. C. 390, n.; Dick. 492. nuities (a) of equal amount are given by the same will or codicil, the legatee, primâ facie, is entitled to one legacy or annuity only. From the similarity of the gifts, unless other circumstances clearly prove that they were given from different motives, identity of intention is presumed, and that the repetition proceeded from inadvertence or excessive caution. And slight modal variations in the bequests will not alter this construction. Thus, the circumstance of the first legacy being given to a feme covert generally, while the second is given " for her own use and disposing notwithstanding her coverture" (b), or of the first being made payable at an earlier period than the second (c), is in this view accounted immaterial. But diversity of motive, when plainly shown, will of course except the case from the operation of the general rule. Much more, as it should seem, if an intention to confer a double bounty can be gathered from the general scope and tenour of the will (d). If the legacies, though given by the same instrument, be of unequal amount, the presumption is in favour of their being accumulative. Here the second bequest cannot be referred to mistake or too much caution: the variation between it and the former legacy admits not fairly of such an explanation. It (a) Holford v. Wood, 4 Ves. 76, 79, 91. (b) Greenwood v. Greenwood, 1 Bro. C. C. 30, n. (c) Holford v. Wood, supra. See also per Aston, J. 1 Bro. C. C. 390, n. (d) See and consider Clive v. Walsh, 1 Bro. C. C. 146, follows that the legal construction must in this case correspond with the literal (a). Where the two legacies or annuities (b), are not contained in the same instrument, but one is given by will, the other by codicil, or they are given by two distinct codicils, the legatee is prima facie entitled to both and it is matter of indifference whether the second be of equal amount with (c), greater (d), or less (e), than the preceding (f). The argument is, that the making of a codicil shows intent to correct or supply deficiencies in the will or former codicil, to which it refers; and as this implies a previous attentive consideration and an accurate knowledge of the contents of such will or codicil, it is presumed that unless an additional bounty had been designed, the testator would either have declared his meaning that the second legacy should be substituted for the first, or that he would not have made the second gift. 225. (a) Curry v. Pile, 2 Bro. C. C. See also per Aston, J., in Hooley v. Hatton, 1 Bro. C. C. 391, note. (b) James v. Semmens, 2 H. Black. 213. Sed vide Currie v. Pye, 17 Ves. 462. (c) Wallop v. Hewett, 2 Cha. Rep. 70; Newport v. Kinaston, ib. 110; Finch, 294; S. C.; Foy v. Foy, 1 Cox, 163; Baillie v. Butterfield, ib. 392. See this latter case as to the nature of the writing which may constitute a codicil. (d) Windham v. Windham, This Finch, 267; Hooley v. Hatton, 1 (e) Pit v. Pidgeon, 1 Cha. Ca. 301; Benyon v. Benyon, 17 Ves. 34; Foy v. Foy, supra. (f) See more on this subject,' per Aston, J., in Hooley v. Hatton, 1 Bro. C. C. 390, n.; per Lord Thurlow, 1 Bro. C. C. 391, 392; 2 Bro. C. C. 529; 1 Ves. jun. 472; also 1 P. Wms. 424; 3 Ves. 294, 465; 5 Madd. 358. rule is held to apply even in cases where a testator provides for after-born children by will, and on the subsequent birth of a child, gives him nominatim a legacy by codicil (a). If, in connexion with the second legacy, the testator should notice any circumstance which forms expressly or by implication the motive of the gift, an additional reason is afforded in favour of the inference that the bequests were intended to be accumulative. So by the use of expressions which show the legatee to have been an object of peculiar regard or affection (b). Of similar tendency is the fact of the posterior gift varying in its nature from the preceding: as where the first legacy is a gross sum and absolutely given, and the second is an annuity (c), a life interest (d), or a sum dependent for its vesting on a future contingency (e). But although where the two bequests are made by separate instruments, there arises by the construction of law a right to both legacies, yet as this right is founded solely in the supposed intention of the testator, it is evident that, if the real meaning appear, that which is the presumptive meaning must yield to it. Nor does it seem necessary to this end that the intention should be expressly declared: it is sufficient if it (a) Pit v. Pidgeon, Windham v. Windham, supra. Sed vide Osborn v. Duke of Leeds, 5 Ves. 369, 375, and infra. (b) Ridges v. Morrison, 1 Bro. C. C. 389. (c) Masters v. Masters, 1 P. Wms. 421-3. (d) Currie v. Pye, 17 Ves. 462. (e) Hodges v. Peacock, 3 Ves. 735. |