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independent claim on the father, there the portion, though superior in amount to the claim, will not prejudice the right to the previous legacy (a). Neither is a previous bequest revoked by the gift of money for a particular object,—as a pecuniary present for the purpose of buying furniture (6).
It has been held as sufficiently indicative of diversity of design or motive in a parent to prevent a sum given [*]in his life-time being taken in satisfaction of a legacy by his will, that the advance is to the child absolutely, while the legacy is of merely a qualified interest. Such at least seems to be the rule, where the immediate gift is not made on the occasion of marriage or of some other event calling for an advancement in the nature of a portion (c). In the first of the cases just referred to as authorities for this position, the legacy was given to trustees to be settled on the testator's daughter when she married according to their discretion, she being in the mean time to take the interest; in the second, the legacy was to a married daughter for life, remainder to her husband for life, remainder to her children; the advance in both was to the child absolutely, and, so far as appeared, without any particular object in view. In neither instance, as before intimated, was the legacy held to be adeemed : and even the circumstance of a memorandum declaring the sum received to be in part
(a) Baugh v. Reed, 3 Bro. C.C. C.; Robinson v. Whitley, 9 Ves. 192 ; 1 Ves. jun. 257.
577. (b) Debeze v. Mann, 2 Bro. (c) Thelluson v. Woodford, 4 C. C. 165, 519; 1 Cox, 346, S. Madd. 420, 436 ; Bell v. Coleman,
5 Madd. 22.
of the daughter's portion, which occurred in one of them, was considered immaterial.
But these cases must be carefully. distinguished from others, where, though the limitations be different, both legacy and advancement are evidently given for the same general purpose, namely, that of providing for the child. In such instances, a difference of modification in the interests bestowed will not destroy the equitable implication. Thus, where a man gave a legacy, the interest to be paid to his daughter until marriage, and if she married, the principal to her absolutely, [*]but if not then over, and afterwards, previously to her marriage, settled on her a sum equivalent to the legacy for life, remainder to the husband for life, remainder to the children of the marriage ; Lord Eldon held the legacy to be adeemed notwithstanding the difference in the limitations: and his Lordship addressing himself to the point said, that, on such occasions, the court overlooked small differences in the circumstances of the portion proposed to be given and of that actually given ; and that it did not inquire whether the legacy was entirely and absolutely to the child or not, because either way a provision afterwards on marriage, according to the general rule, was a presumed satisfaction(a). From this case it also appears, that the circumstance of the legacy being limited over to a stranger on the happening of a particular event, will not alter the construc
(6) See also 1 Ves. jun. 265.
(a) Trimmer v. Bayne, 7 Ves. 508. See also 1 Ball and Be. 304, and i Ves. jun. 263.
A general legacy to a child, additional to another legacy given by the same will expressly as a portion, is not considered to be revoked by a future provision on marriage, although the sum then advanced be equal to, or greater than, both the legacies. The reason is obvious. By distinguishing thus pointedly between the two bequests, the testator shows, that besides discharging his natural obligation as a parent, he designed to confer a further bounty. And as the portion given on marriage can be accounted to satisfy only what before was particularly provided as a portion, [*]the bequest of the general legacy, which comes not within that character, cannot be affected by it(a).
The prima facie ademption may also be met by the apparent intention of the testator as deducible from the tenor and purport of a subsequent codicil. Thus where a man, after giving by will certain legacies to his several children, advanced to his eldest son on go. ing abroad 4001., which he noticed in his cash-book, as being a loan to the son ; and then made a codicil to his will, reciting that his estate would not be adequate to the payment of all the legacies, and therefore retrenching a certain part out of each of the younger children's fortunes, without however noticing the bequest to the eldest, and also at the same time specifying several debts owing to him which he directed to be applied towards discharge of the legacies, but not including in the number the loan of 4001.; it was resolved, under the circumstances, that the ad
(a) Ward v. Lant, Prec. Cha. 182.
vance to the eldest son could not be intended as made in diminution of the previous legacy(a).
Extrinsic evidence of intention is likewise available to repel the legal presumption. This may consist either of written documents, letters, memoranda in the testator's books of account, or in other private papers (6), or of parol declarations (c). As several cases have occurred [*]in which testimony of the latter kind has been admitted, and from them a general idea of its competence to the end proposed may be obtained,-a subject of much importance, it will not perhaps be thought without use here briefly to detail the result of those decisions.
It has been before mentioned, that the object for which a gift is made will in some instances prevent such gift going in satisfaction of a previous legacy ; andan instance was put of a present for the purpose of buying furniture. On one occasion, this particular intent was made out, (and a corresponding decision followed), from evidence of a private conversation between the father and mother of the child shortly before her marriage, in which the former said, that he meant, as soon as the marriage took place, to give his daughter a certain sum, because furniture would be wanted (d).
(a) Bird v. Hooper, Prec. Cha. stated in note to Jenkins v. Pow298.
ell, 2 Vern. 115. (b) Bird v. Hooper, Prec. Cha. (c) See 1 Bro. C. C, 296 ; 2 ib. 298; Ellison v. Cookson, 1 Ves. 309 ; 1 Ves. jun. 101, 110; 7 Ves. jun. 100; 18 Ves. 149; Thellu- 508,518; 15 Ves. 514. son v. Woodford, 4 Madd. 420 ; (d) Robinson v. Whitley, 9 Ex parte Pye v. Dubost, 18 Ves. Ves. 577. 140 ; also Elkenshead's case as
In Shudal v. Jekyll (a), where a man, who had made his will and given to his niece a legacy of 10001., on proposals of marriage being afterwards made to her, told the future husband, that “he would give him 500l. and also leave something to his niece by will, though he would not be considered under any obligation so to do ;" Lord Hardwicke held this intimation, especially as the will continued unaltered, sufficient to entitle the piece to the whole legacy: it plainly appeared to be the uncle's design to leave her a legacy, [*]and the quantum was for him, not for the court, to determine.
So where a testator in conversation with the father of his daughter's intended husband said, “ he could only give at the time of her marriage a certain sum, but that there would be more afterwards, as his life was a bad one;" a legacy before given to the daughter was decided not to be adeemed by the portion advanced on her marriage (b).
A reference in broader terms by a father to his will on the occasion of his daughter's marriage, declaring that she is the object of his bounty, will, à fortiori, preserve her right to a legacy, notwithstanding the subsequent advancement (c).
From these cases it is seen of what, as regards the substance and import of the terms used, a testator's parol declarations may consist in order to repel a con
(a) 2 Atk. 516. See on this C. 165. case per Lord Eldon, 18 Ves. 149. (c) See 1 Ves. jun. 111; 7
(b) Debeze v. Mann, 2 Bro. C. Ves. 520.