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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 (b).

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.

(b) 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 money should 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. C. C. 63; 2 ib. 394. See also 15 Ves. 513. (b) Leake v. Leake, 10 Ves. 477, 489; Onslow v. Michell, 18 Ves. 490; Goolding v. Haverfield,

M'Clel. 345.

(c) Twisden v. Twisden, 9 Ves.

413.

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

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(a).

(a) Noel v. Lord Walsingham, 2 Sim. & 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 (1).

(1) Vide Walton v. Walton, 7 Johns. Ch. 258. Cogdall's Exr. v. 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 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 a grandfather (2 Atk. 518), brother (1 Ball and Be. 298), or uncle (2 Atk. 492), the latter evidently takes on himself the office of a parent; and, consequently, a legacy given by him to the child will be held satisfied by a subsequent advancement. A similar line of conduct pursued towards a young person by a stranger will also, it is conceived, in every point bear the same construction.

Where the father is alive and maintains his child, or the father being dead the child is provided for by a particular relative or friend, in such cases to bring the donor of the legacy and subsequent portion within the description of a person in loco parentis, it must be shown, that he so regarded himself and this, it should scem, can only be done from the terms in which the bequest is made, or from accompanying expressions indicative of the testa

tor's motive. See 2 Bro. C. C. 516, 517, 518.

If given in terms as a portion or provision for the child, the inference is, that the testator meant to assume on that occasion the parental character; and a portion afterwards given will, therefore, be held to adeem the legacy. But unless some such marked indication of the testator's meaning appear, the claim to both benefits may be sustained; and whether, in the latter case, the testator be a relative of the child's (Brown v. Peck, 1 Eden, 140), or a stranger (Powell v. Cleaver, 2 Bro. C. C. 500; Shudal v. Jekyll, 2 Atk. 516; also see 2 Atk. 492; Dick. 407; 18 Ves. 153), is perfectly immaterial.

The law not recognising the relation of father and natural child, the former, so far as concerns the present inquiry, stands on the same footing as an entire stranger. So that, unless the father, in providing for the child by will, either directly or indirectly acknowledge the relationship between them, a presumption of intent to satisfy and adeem the legacy by a subsequent portion or advancement, will not be entertained. Ex parte Pye and Dubost, 18 Ves. 140; Wetherby v. Dixon, 19 Ves. 407; Coop. 279, S. C.; see

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