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[*]pecuniary provision for a child by will, advance to such child a portion on marriage (a), or a sum of money [*]for preferment in business (6), such portion or sum, supposing it equal with or greater than the testamentary bounty, is primâ facie an ademption of the legacy (1). In both instances the motive of the gift is evidently the same, and as the will shows the amount of fortune intended to be given, a presumption not unreasonably is held to arise, that the advance was designed in substitution of the posthumous provision (c). This doctrine, it is true, has been impugned as likely often to disappoint the testator's intention (d); but, besides that it is difficult to enter into an inquiry of this kind, it is certainly quite as probable that in the great majority of cases the presumption has the effect of fulfilling the intention.
also Grave v. Lord Salisbury, 1 Atk. 48 ; Watson v. Earl of LinBro. C. C. 425 ; Smith v. Strong coln, Amb. 325 ; Ellison .v. Cook4 Bro. C. C. 493; Trimmer v. son, 3 Bro. C. C. 61; 1 Ves. jun. Bayne, 7 Ves. 508.
100, S. C.; Trimmer v. Bayne, (a) Hale v. Acton, 2 Cha. Rep. 7 Ves. 508; Dwyer v. Lysaght, 35; Jenkins v. Powell, 2 Vern. 2 Ball and Be. 156. 115; Elkenhead's case, ib. 257, (6) See Hoskins v. Hoskins, cited; 1 Stra. 236, cited, S. C.; Prec. Cha. 263; Rosewell v. Hartop. v. Whitmore, Prec. Cha. Bennet, 3 Atk. 77; Roome v. 541; 1 P. Wms. 681 ; 1 Bro. C. Roome, 3 Atk. 181. C. 307, n. S. C.; Pepper v. Win (c) See 2 Atk. 492,518 ; Ambl. yeve, 8 Vin. Abr. 158, pl. 10; and 326 ; 1 Ves. jun. 107; 2 Cox, Calmady v. Calmady, there cited; 220 ; 7 Ves. 515; 18 Ves. 153. Scotton v. Scotton, 1 Stra. 235 ; (d) i Bro. C. C. 426-7 ; í Ves. Tapper v. Chalcroft, 2 Atk. 492, jun. 109. cited ; Biggleston v. Grubb, 2
(1) Jones v. Mason, 5 Rand. 577.
The circumstance of the party afterwards “ratifying and confirming" his will by a codicil (a), though expressly “in all respects” (b), does not preclude the constructive satisfaction. The reason is, that these words amount only to a new publication of the will; in which view they are simply words of course, and cannot therefore be understood to evince the testator's final and deliberate resolution on the subject. But regard [*]to the presumed intention of a testator, in contradiction to the literal import of his express directions, was on one occasion carried even further than in the cases last referred to. A father who had several children advanced to four of them portions of 15001, each. He then made his will, and, reciting that he had thus advanced three of his children, gave to the fourth, in common with those before unprovided for, legacies equal in amount with the portions. It was decreed that the portion given to the fourth child prevented his claim to the subsequent legacy(c).
A portion secured by settlement, though not payable till after the parent's death, will equally with an actual advancement, and for the same reason, satisfy a legacy previously given(d). And as the general rule is founded on identity of motive, an advancement of inferior amount to a legacy will be construed an ademption pro tanto.(1) The purchase money for a
(a) · Izard v. Hurst, 2 Freem. (c) Upton v. Prince, Forr. 71. 234 ; 2 Eq. Abr. 769, S. C. (d) Hartopp v. Hartopp, 17 Ves.
(6) Monck v. Lord Monck, 1 184. See also Trimmer v. Bayne, Ball and Be. 298, 306. Sed vide 7 Ves. 508 ; Clarke v. Burgoyne, 3 Atk. 183-4.
(1) Deveaux v. Bamwell, 1 Dess. 497. Bryant v. Hunters, 3 Wash. C. C. 48.
commission in the army, accordingly, has been held to go in part discharge of a legacy(a). In a case, indeed, before Lord Camden, a portion less than the bequest was held to be a total satisfaction (6); but that case, it seems, cannot be relied on. The principle (adopted from the civil law) on which the decision proceeded [*]was, that the father, since the making of his will, must be presumed to have changed his mind in regard to the amount of fortune to be given (c). But clearly the more probable and reasonable supposition under the circumstances was, that the father might not choose, or might not be able, to spare in his life-time all that he meant to leave his child at his death (d). Nor, as it is conceived, can the doctrine laid down by Lord Camden be defended on the authority of Rosewell v. Bennett (e), in which case a sum not exceeding 3001. directed to be advanced in apprenticing the testator's son, was, upon parol testimony of the intention, held to be adeemed by the testator's afterwards himself placing out the son as a clerk in a public office, and paying with him 2001. as a premium : for it is obvious to remark in this case, that as the will directed, not a specific sum, but only a sum not exceeding a certain amount to be laid out for the son's preferment, and as the object for which the legacy had been given was actually attained, no solid or satisfactory
(a) Hoskins y. Hoskins, Prec. Bell v. Coleman, 5 Madd. 22. Cha. 263. See also the principle (6) Clarke v. Burgoyne, Dick. recognised in Baugh v. Reed, 3 353. Bro. C. C. 192 ; Debeze v. Mann, (c) See 18 Ves. 151. 2 Bro. C. C. 165, 519; Thellu (d) See 1 Ves. jun. 105. son v. Woodford, 4 Madd. 420; (C) 3 Atk. 77.
ground existed on which the demand to the remaining 100l. could be established.
Points of unimportant difference between the provision intended by the will, and that afterwards made in the parent's life-time, are not enough to repel the implied satisfaction. Within this rule may be enumerated diversities in the amount of maintenance allowed during infancy,-in the period whence interest on the [*]legacy and portion respectively are to be computed (a), -and, as it should seem, in the time for payment of the principal (6). But the circumstance of the portion being made to vest only on a contingency, while the legacy vests immediately, does not come within the same principle. Such provision, consequently, will be in the nature of an additional bounty (c).
It has been held in several cases, that the bequest to a child of a residue, or of a share of a residue, is not within the range of the principle now under discussion, and that it is not virtually revoked by a subsequent advancement. This has been decided on the ground, that a residue being fluctuating and of uncertain amount is inefficient to the discharge of the positive and certain duty which attaches on a parent ; and that as it does not originally satisfy the meaning or purposes of a portion, which ex vi termini signifies some certain provision, the gift of a portion afterwards by no means implies a change of intention as
(a) See Hartopp v. Hartopp, 17 Ves. 184, 191. Also, 7 Ves. 515; 18 Ves. 153.
(6) See 2 Atk. 493.
(c) Spinks v. Robins, 2 Atk. 49).
to the residuary bequest (a). The same argument, whatever be its value, appears to apply with equal force to the case of the bequest of a residue following a provision by way of portion, in which case, however, we have seen the portion is held to be satisfied. It is certainly difficult to discover any principle which can afford an intelligible distinction between the two classes of cases, [*]or whereby the apparently conflicting decisions to which they have given rise can be reconciled.
Dissimilarity in the nature and legal properties of the respective subjects of bequest and advancement, will also prevent the application of the rule (1). Thus real estate conveyed to a child in the father's lifetime (b), or the grant of a beneficial lease (c), will not adeem a previous legacy. On this ground, in Holmes v. Holmes (d), a legacy to a son was decreed to be paid, although the father, since the date of the will, had taken him into partnership, and had given him a share in the stock in trade greatly exceeding in value the amount of the legacy.
Where a consideration distinct from the parental duty appears to have formed the inducement to advancing a portion, such as the child's relinquishing an
(a) Watson v. Earl of Lincoln, cited supra pp. 108, 121. Ambl. 325, 7; Smith v. Strong, 4 (c) Grave v. Earl of Salisbury, Bro. C. C. 493 ; Freemantle v. 1 Bro. C. C. 425. Bankes, 5 Ves. 79,85.
(d) 1 Bro. C. C. 555; 1 Cox, (b) See the cases on this point, 39, S. C.
(1) Bryant v. Hunters, 3 Wash. C. C. 48. Massey et al. v. Leaming, 4 Dallas. 123.