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[*]CHAPTER VII.

PRESUMPTIONS OF LAW CONTINUED.

Of the presumed Satisfaction of Portions by Lega

cies, or Second Portions.

The leaning of the courts against double provisions has already been casually noticed. This principle, as respects children, appears to have arisen from the unlikelihood of a father's intending, without particular reason, to give a larger fortune to one child than to another, each having by nature an equal claim to his bounty(a)(1). And in cases where a family estate is settled on an eldest son subject to charges in favour of the younger children, from the probability of the father's meaning to disencumber the estate for the benefit of such eldest son, the future head and support of his house(6). This latter reason seems also to apply in favour of claimants in remainder to whom the estate is limited for default of male issue(c),

(a) See 1 Atk. 427.

(c) See i Ves. jun. 525; 6 (b) See 3 Atk. 98 ; 1 Ves. 520. Ves. jun. 398.

(1) Vide Mathews on Portions, 205, and cases there cited.

On these grounds, whenever a parent, or person standing in loco parentis, after making a settlement which secures portions to his children or the [*]other objects of his care, gives by will (a), or advances in his life-time (6), sums equal to, greater, or less (c), than those before secured, such legacies or advancements, unless incidental circumstances oppose the

application of the rule, are construed to go in entire or partial satisfaction. Indeed, as both provisions are the result of the same motive, and proceed from the

(a) Pile v. Pile, 1 Cha. Rep. notice was, on one occasion, car199; 1 Eq. Abr. 204, p. 5, S. C. ; ried beyond the case of parent and Blois v. Blois, 2 Cha. Rep. 162; child: A testamentary bounty to a 2 Freem. 46; 2 Vent. 347, S. S.; stranger was declared to be satisBruen v. Bruen, 2 Vern. 439 ; fied by a subsequent provision by Prec. Cha. 195 ; 2 Freem. 254, settlement; Williams v. Duke of S. C.; Copley v. Copley, 1 P. Bolton, Dick. 405. And in the Wms. 147; Ackworth v. Ack- same se Lord Camden said, that worth, 1 Bro. C. C. 308, n. ; Duke where a provision is made for a v. Duchess of Somerset, ib. 309, wife by one deed, and a second n. ; Finch v. Finch, 4 Bro. C. C. portion or provision is afterwards 38; 1 Ves. Jun. 534. See also made for her by another, but is 1 P. Wms. 299 ; 3 Ves. 528-9; 4 not expressed to be in addition Ves. 491 ; 9 Ves. 427; M*Clel. to the first, the presumption is, Rep. 358.

that the latter was intended in sat(6) Smith v. Lord Camelford, 2 isfaction. The authority of this Ves. jun. 698, 713; Burgess v. case and dictum is, however, very Mawbey, 10 Ves. 319. The rule, questionable. See 2 Bro. C. C. as it should seem, extends to the 518; Coop. 281; 19 Ves. 411, case of illegitimate children, John- 412. son v. Smith, 1 Ves. 313; though (c) Warren v. Warren, 1 Cox, only, it is probable, where the 41; 1 Bro. C. C. 305, S.C.; Jesfather clearly shows, that he con son v. Jesson, 2 Vern. 255; 1 P. siders himself, with respect to the Wms. 299; 3 P. Wms. 247; 1 object of his bounty, to stand in Bro. C. C. 310. But see 2 Fonb. that relation, Coop. C. C. 281 ; on Eq. 5th edit. 326; and Savile 19 Ves. 411, 412. It is worthy v. Savile, Sel. Cha. Ca. 32. of remark, that the principle under

same person, an inference not unfairly arises, that the benefits conferred were designed to compensate those before only secured(a). This principle also extends to the case of portions being given by a second settlement, similar to portions provided to be raised by a [*]first ; in which case a double security merely is held to be provided(b).

It will not fail to be observe d, that, contrary to the rule in cases on the satisfaction of debts, legacies or advancements, though of smaller amount, are held

in part satisfaction of portions. The cause of this is the different grounds on which the presumption in the two cases rests ; the inference, in the case of debts, being drawn from the correspondence in point of benefit between the gift and the demand; in that of portions, from the identity of motive. On this latter principle, indeed, it seems to have been thought, that a legacy even less than a portion, but payable at an earlier time, and on the whole probably an equivalent, might in some instances amount to a satisfaction in toto (c)

to go

Delay in the time for payment of a legacy (d), or portion subsequently secured (e) (1), does not alter the legal implication. The end proposed both in

(a) 1 P. Wms. 299 ; 3 Atk. 98. (d) Copley v. Copley, 1 P.Wms.

(b) Keywick v. Thomas, Gilb. 147; Sparkes v. Cator, 3 Ves. Eq. Ca. 65, cited ; Thomas v. Ke- 530, 535. See also 3 Atk. 98; 1 mys, 2 Vern. 348 ; Watson v. Earl Bro. C. C. 310 ; 2 Bro. C. C. 396 ; of Lincoln, Amb. 325 ; Savage v. 3 Ves. 466. Carrol, 1 Ball and Be. 265, 276. (e) Jesson v. Jesson, 2 Vern.

(c) Byde v. Byde, 2 Eden, 19; 255 ; Thomas v. Kemeys, ib. 348; 1 Cox, 44; 1 Bro. C. C. 309, n. Gilb. Eq. Ca. 65, cited, S. C.

(1) Every v. Gould, 2 Ch. R. 1. 8.

1

the original settlement and in the subsequent gift being the same, namely, the child's provision, an intention in the parent to bestow a double fortune cannot, it is held, be concluded from a variation so insignificant. [*]A difference in the amount of maintenance during infancy is likewise accounted immate

rial (a).

Upon the principle that a legacy or advancement of inferior amount will pro tanto satisfy a previous portion, and that a variation in the time of payment is unimportant, it has been determined, that the bequest of a general or particular residue will wholly or in part, according to circumstances, prevent a claim to a preceding provision by settlement (6). The answer to the objection, that several years may elapse before the testator's personal estate be got in, and the residue ascertained, is, that the question of satisfaction is in the mean time suspended; that the party may immediately insist on bis right to the portion; and that when the value of the residuary estate is known, then, but not sooner, comes the time for electing between the provisions by the will, and by the settlement (c). A distributive share under an intestacy would probably have the same effect, with regard to satisfaction, as a residuary bequest.

As a general rule it is therefore seen, that slight variations between the original portion and the subsequent provision furnish no decisive inference against

(a) Keywick v. Thomas, Gilb. also 15 Ves. 513. Eq. Ca. 66, cited.

(c) 2 Bro. C. C. 397; M.Clel. (b) Rickman v. Morgain, 1 Bro. Rep. 360. C. C. 63; 2 Bro. C. C. 394 ; see

a presumed satisfaction. In like manner, if the other requisite circumstances concur for presuming a portion to be satisfied by a legacy, little attention will [*]be paid to small peculiarities in the mode in which the gift is made, although the testator's meaning be thereby rendered generally obscure, and the bequest made capable of a construction favorable to the idea that the legacy was intended as an independent bounty. Hence, where on marriage part of the wife's fortune was paid to the husband in consideration of an annuity secured to her after his decease, and the remainder, subject to life interests to the husband and wife, was settled on the children in such proportions as the wife should appoint; and afterwards, the husband, by will, directing his wife to relinquish her right under the settlement, gave to trustees a sum much larger than the fortune she brought, in trust to pay the interest to her for life, and the principal as she should appoint among the children; a question being raised, whether the portions to the children were meant to be satisfied by the bequest, inasmuch as the direction for relinquishment was confined in terms to the wife, it was determined in the affirmative ;—the provision under the will was larger than that under the settlement, so that, prima facie, the case fell within the general rule, and there was no decisive manifestation of contrary intent to hold it an exception(a).

So, where the only child of a first marriage was entitled under a settlement to 2,0001., and the father by will

gave him a share in certain powder works, and

(a) Moulson v. Moulson, 1 Bro.C. C. 82.

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