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Generally speaking, however, a devise in tail is within the meaning of an advancement by a gift of lands of inheritance(a). And as the courts are usually very liberal in their exposition of clauses in restraint of double portions, where the intent of a proviso is sufficiently clear, they will not lay a stress upon the strict and literal interpretation of it; but if the act [*]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(6).
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
(a) Watson v. Earl of Lincoln, Amb. 325, 328.
(6) Leake v. Leake, 10 Ves. 477, 488.
might commence in enjoyment, and the fact of its consisting neither of money nor of land(a).
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 [*]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 (b).
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(c).
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 mo
go in discharge of pecuniary portions, it was decided in the case of Pughe v. Duke of Leeds(d), 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
(a) Richman v. Morgan, 1 Bro. M.Clel. 345. C. C. 63; 2 ib. 394. See also 15 (c) Twisden v. Twisden, 9 Ves.
413. (6) Leake v. Leake, 10 Ves. (d) 6 Bro. P. C. by Toml. 125; 477, 489 ; Onslow v. Michell, 18 i Bro. C. C. 67, n. S. C. Ves. 490 ; Goolding v. Haverfield,
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(a).
(a) Noel v. Lord Walsingham, 2 Sim. & Stu. 99.
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 (1).
(1) Vide Walton v. Walton, 7 Johns. Ch. 258. Cogdall's Exr. y. His Widow, 3 Dessaus, 368.
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 tor's motive. See 2 Bro. C. C. more at large to consider, who 516, 517, 518. come within the description of per If given in terms as a portion sons standing in loco parentis. or provision for the child, the inGenerally, it may be laid down, ference is, that the testator meant they are those who assume the to assume on that occasion the parental character ; but this must parental character ; and a portion very clearly appear. Where an afterwards given will, therefore, orphan is received under the care be held to adeem the legacy. But of, or is supported by a relative, as unless some such marked indicaa grandfather (2 Atk. 518), bro- tion of the testator's meaning apther (1 Ball and Be. 298), or uncle pear, the claim to both benefits (2 Atk. 492), the latter evidently may be sustained ; and whether, takes on himself the office of a in the latter case, the testator be parent ; and, consequently, a le- a relative of the child's (Brown v. gacy given by him to the child Peck, 1 Eden, 140), or a stranger will be held satisfied by a subse- (Powell v. Cleaver, 2 Bro. C. C. quent advancement.
A similar 500; Shudal v. Jekyll, 2 Atk. line of conduct pursued towards a 516; also see 2 Atk. 492 ; Dick. young person by a stranger will 407; 18 Ves. 153), is perfectly also, it is conceived, in every point immaterial. bear the same construction.
The law not recognising the Where the father is alive and relation of father and natural maintains his child, or the father child, the former, so far as conbeing dead the child is provided cerns the present inquiry, stands for by a particular relative or on the same footing as an entire friend, in such cases to bring the stranger. So that, unless the fadonor of the legacy and subse- ther, in providing for the child by quent portion within the descrip- will, either directly or indirectly tion of a person in loco parentis, it acknowledge the relationship bemust be shown, that he so regard- tween them, a presumption of ined himself: and this, it should tent to satisfy and adeem the lescem, can only be done from the gacy by a subsequent portion or terms in which the bequest is advancement, will not be entertainmade, or from accompanying ex- ed. Ex parte Pye and Dubost, 18 pressions indicative of the testa. Ves. 140; Wetherby v. Dixon, 19
Ves. 407; Coop. 279, S. C. ; see