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such additional sum of money as together with the share would make up a fortune of 10,000l. ; it was held, that as a sum exceeding 2,0001. became payable [*]under the direction of the will, such sum should be taken in discharge of the portion, notwithstanding an objection on the score of the testator's intention drawn from his ignorance of what might be the value of the share in the powder works at the time of his death, and so whether or not any money might become due to the son under the provisions of the will(a).
It is also observable, that although a father, between the periods of making a settlement for his children, and of advancing them on marriage or giving them legacies by will, materially enlarges his fortune, whence an argument might be drawn of a desire to increase their portions,—yet unless an intention to that effect be clearly shown, the general rule will prevail(6).
As an uncertain recompense, however, cannot be construed to satisfy a certain demand, a legacy or portion given to a child on a contingency will not satisfy a portion to which the child is entitled absolutely(c). The converse of this proposition seems also to be true : a portion to be raised on a contingency, particularly if remote, will not be discharged by an imme
(a) Bengough v. Walker, 15 Hinchcliffe, 3 Ves. 516. Ves. 507. See also Hinchcliffe (c) Bellasis v. Uthwaite, 1 Atk. v. Hinchcliffe, 3 Ves. 516 ; Sparkes 426. See also Jeacock v. Falkv. Cator, ib. 530.
ener, 1 Bro. C. C. 295; Hanbury (6) See Moulson v. Moulson, 1 v. Hanbury, 2 Bro. C.C. 352, and Bro. C. C. 82 ; and Hinchcliffe v. per Lord Thurlow, p. 360.
diate provision. Thus, where, in a marriage settlement, a term was limited, on failure of issue male, to raise a sum for daughter's portions, and there was issue of the marriage a son and two daughters ; legacies given by the [*]father to his daughter in the son's life-time, were decreed, in Dom. Proc., not to prejudice their rights under the settlement, though the son afterwards died unmarried.(a).
In order that a subsequent provision may be taken to compensate a preceding, it is further necessary, that both should be ejusdem generis,—that they should correspond generally in their nature, and be attended with similar results. On this ground, it has been determined, that a gift or devise of land will not defeat a title to a pecuniary portion. The devolution and legal consequences of land and money are different : rights which result from the one do not arise from the other. The portion, for example, of a daughter who marries, belongs, on being reduced into possession, to her husband absolutely; and survives to him whether reduced into possession or not : land, on the contrary, subject to the husband's marital right, belongs to the wife, and on her death descends to her heir at law (b). . For similar reasons, a beneficial lease will not, it should seem, extinguish a claim to a portion (c). But a legacy of a sum in gross, is held
(a) Duffield v. Duffield, 2 Vern. gough v. Walker, 15 Ves. 507, 258; 2 Freem. 185 ; 2 Eq. Abr. 512; 1 Atk. 428, Smith v. Lord 204, s. C. Sed vide Jesson y. Camelford, 2 Ves. jun. 698, 713, Jesson, 2 Vern. 255.
was a case of election. (b) Chaplin v. Chaplin, 3 P. (c) Grave v. Lord Salisbury, 1 Wms. 245; Davie v. Hooper, 6 Bro. C. C. 425. Bro. P. C. by Toml. 51; Ben
to satisfy an annuity secured by settlement (a); and Government, East India, or South Sea Annuities, a portion of sterling money (b).
[*]As the general rule is in part founded on the circumstance that both portion and gift move from the same person, it is obvious that where the latter, though taken immediately through the father, is in point of fact derived from another source, the rule fails of application, and the gift and portion being really independent of each other are both payable. Accordingly, where a man, whose estate was charged with portions for his younger children, and who bad also a power over his wife's estate to be exercised for their benefit, appointed by will a sum to be raised out of the wife's estate, and paid to an only daughter in satisfaction of the charge on his own property, Lord Hardwicke held the declaration as to satisfaction to be void (c).
Where an intention that the provisions shall be accumulative clearly appears, there also the prima facie satisfaction cannot be sustained. So where the legacy or second portion is given diverso intuitu,-on a separate and distinct consideration. Thus, it has been held, that a portion advanced on marriage, in substitution of an annuity before given by will, did not preclude a right to a portion derived under a settlement (d).
(a) See Bellasis v. Uthwaite, 1 (c) Roberts v. Dixall, 2 Eq. Atk. 426.
Abr. 668, p. 19. See also Bar(6) Pughe v. Duke of Leeds, 1 nard, 156, 157. Bro. C. C. 67, n. ; 6 Bro. P. C.
(d) 10 Ves. 319. Toml. 125.
Extrinsic evidence, moreover, is here as in other cases of presumption admissible to rebut the constructive satisfaction. And for this purpose parol declarations by the parent seem to be sufficient. Similar [*]testimony, we may notice, is also admissible to fortify the presumption when contested (a) (1).
It is not unusual, in settlements or other instruments providing portions for children, to insert a clause directing that if the father advance his children before their portions become due, such advancement shall be taken in total or partial discharge of the original provision. A question frequently arises-What species of preferment are within the meaning of clauses of this nature? Although no rules of universal application can be given with a view to meet questions of this kind, each case necessarily depending on the particular wording of the stipulation, yet it may not be useless to show the construction which has been adopted in particular instances.
A gift of land, it appears, is not considered within the meaning of the proviso which mentions only advancements by money. In Chaplin v. Chaplin (6), the proviso annexed to a term for raising daughters' portions was, that if the father should by deed or will
(a) Pile v. Pile, 1 Cha. Rep. Bro. C. C. 61; 1 Ves. jun. 100. 199; 1 Eq. Abr. 204, pl. 5, S. C.; See further on the subject of parol Hinchcliffe v. Hinchcliffe, 3 Ves. evidence in the last two and the 516. See also 6 Ves. 321, 398 ; three following Chapters. 15 Ves. 514; 1 Bro. C. C. 296; 3 (6) 3 P. Wms. 245.
(1) 4 Dow. 89. Cuthburt v. Peacock, 2 Ves. 593. Pomfret. 11 Ves, 542.
give to his daughters equivalent sums of money, such sums should be accounted to go in satisfaction. The father left land to his daughters of the required value, and it was held they were entitled to both provisions,
A gift of lands in reversion yielding no present profit will not be construed as falling within the import of the expression “real estate," so as to frustrate a [*]claim to portions which are liable to be satisfied by an advancement of that description (a). But a contrary rule, it should seem, would hold in regard to reversions to which rents presently payable are incident.
Where portions are secured to daughters absolutely at twenty-one with benefit of survivorship if any die under age, a devise to them of land in tail, with immediate remainder over to a stranger in such a manner as to exclude the implication of cross remain
the daughters, will not be held to answer the intention of a proviso, which directs that the portions shall not be raised if an estate of inheritance of equal value descend from or be given to them by the father. The principal reason for which is, that in case any of the daughters died under age, the survivors would not obtain the quantum of provision intended to be secured to them(b). Hence it that the general design of the parties in a settlement, as well as the strict import of the proviso, must always be consulted.
Hence it appears,
(a) Savile v. Savile, 2 Atk. 458, v. Haverfield, M.Clel. 345. 463. Sed vide Watson v. E. of (6) Savile v. Savile, 2 Atk. 458; Lincoln, Amb. 325; and Goolding Amb. 328, cited.