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[*]follows that the legal construction must in this case correspond with the literal (a).
Where the two legacies or annuities (6), are not contained in the same instrument, but one is given by will, the other by codicil, or they are given by two distinct codicils, the legatee is primâ facie entitled to both (1): and it is matter of indifference whether the second be of equal amount with (c), greater (d), or less (e), than the preceding(s). The argument is, that the making of a codicil shows intent to correct or supply deficiencies in the will or former codicil, to which it refers; and as this implies a previous attentive consideration and an accurate knowledge of the contents of such will or codicil, it is presumed that unless an additional bounty had been designed, the testator would either have declared his meaning that
(a) Curry v. Pile, 2 Bro. C. C. Finch, 267; Hooley v. Hatton, 1 225. See also per Aston, J., in Bro. C. C. 390, 1.; Dick. 491, Hooley v. Hatton, 1 Bro. C. C. S. C. ; Hurst v. Beach, 5 Madd. 390, note.
301; Foy v. Foy, supra. (6) James v. Semmens, 2 H. (e) Pit v. Pidgeon, 1 Cha. Ca. Black. 213. Sed vide Currie v. 301 ; Benyon v. Benyon, 17 Ves. Pye, 17 Ves. 462.
34 ; Foy v. Foy, supra. (c) Wallop v. Hewett, 2 Cha. (S) See more on this subject, Rep. 70; Newport v. Kinaston, ib. per Aston, J., in Hooley v. Hatton, 110; Finch, 294, S. C.; Foy v. 1 Bro. C. C. 390, n.; per Lord Foy, 1 Cox, 163 ; Bailie v. But- Thurlow, 1 Bro. C. C. 391, 392 ; terfield, ib. 392. See this latter 2 Bro. C. C. 529 ; 1 Ves. jun. case as to the nature of the writing 472; also 1 P. Wms. 424; 3 Ves. which may constitute a codicil. 294, 465 ; 5 Madd. 358.
(d) Windham v. Windham,
(1) Dewitt v. Yates, 10 Johns. R. 156.
the second legacy should be substituted for the first, or that he would not have made the second gift. This [*]rule is held to apply even in cases where a testator provides for after-born children by will, and on the subsequent birth of a child, gives him nominatim a legacy by codicil(a).
If, in connexion with the second legacy, the testator should notice any circumstance which forms expressly or by implication the motive of the gift, an additional reason is afforded in favour of the inference that the bequests were intended to be accumulative. So by the use of expressions which show the legatee to have been an object of peculiar regard or affection(b). Of similar tendency is the fact of the posterior gift varying in its nature from the preceding : as where the first legacy is a gross sum and absolutely given, and the second is an annuity(c), a life interest(d), or a sum dependent for its vesting on a future contingency (e).
But although where the two bequests are made by separate instruments, there arises by the construction of law a right to both legacies, yet as this right is founded solely in the supposed intention of the testator, it is evident that, if the real meaning appear, that which is the presumptive meaning must yield to it. Nor does it seem necessary to this end that the inten
(a) Pit v. Pidegon, Windham v. (c) Masters v. Masters, 1 P. Windham, supra. Sed vide Os- Wms. 421-3, born v. Duke of Leeds, 5 Ves. (d) Currie v. Pie, 17 Ves. 462. 369, 375, and infra.
(e) Hodges v. Peacock, 3 Ves. (6) Ridges v. Morrison, 1 Bro. 735. C. C. 389.
tion should be expressly declared: it is sufficient if it [*]be deducible from the nature and mode of the gift. Accordingly, it has been held, that where both legacies are of the same amount, and both given for the same cause, the double coincidence is proof of design not to confer more than one bounty ; and that the repetition proceeded merely from anxiety to guard against omissions. Similar legacies by will and codicil to an executor for trouble in executing the office (a),—to a wife for her jointure (6),-and, as it should seem to a person bearing a particular relation to the testator, as a godson, nephew (c), or servant (d), and described as such on both occasions,come likewise within this principle (e).
But sameness of motive does not alone constitute an answer to the legal intendment: the double coincidence above noticed must occur. Hence if the second legacy be greater or less than the preceding, it will be accumulative (f). And the same consequence will ensue, though the gifts in each instance be of like quantities, and the apparent motive to the first bequest be common also to the second, provided an additional reason be stated in regard to the latter as forming a further inducement (g).
(a) Benyon v. Benyon, 17 Ves. v. Beach, 5 Madd. 351, 358. 34 ; Att.-Gen. v. Harley, 4 Madd. (e) See also 2 Bro. C. C. 521, 263.
in Debeze v. Mann ; 5 Madd. (6) 5 Ves. 382.
358-9. (c) Ridges v. Morrison, 1 Bro.
(f) Hurst v. Beach, 5 Madd. C. C. 389.
351, 359. (d) Duke of St. Alban’s v. (g) Ridges v. Morrison, 1 Bro. Beauclerk, 2 Atk. 636, 640; Hurst C. C. 389.
[*]The coupling of a specific with a general legacy, where the amount of the latter is in both instruments the same, has also, on the ground of consulting the testator's intention, been adjudged to limit the right of the legatee to one pecuniary bounty. As the second mention of the specific legacy is clearly the effect of inadvertence, it is natural to suppose that the repetition of the general legacy proceeded from the same cause (@).
Where legacies are given by codicil, some expressly in augmentation of previous gifts by will, and others also to legatees named in the will, but without declaring them to be additional, the omitting of such declaration is considered to furnish an inference of the testator's meaning to give in the latter instances single legacies only; for had he intended double, it is reasonable, arguendo à priori, to expect he would have said so (b). This inference becomes the more necessary, if circumstances appear which serve in any degree to call for and justify the repetition (c) (1).
(a) Currie v. Pye, 17 Ves. 462.
(6) Allen v. Callow, 3 Ves. 289.
(c) Ibid. See on this point Benyon v. Benyon, 17 Ves. 34.
(1) Where some of the legacies of the codicil were different in nature and amount, and others, as given by the will would carry interest immediately whilst those of the same amount in the codicil would not, and differed as to the management; Held to be cumulative. Mackenzie v. Mackenzie, 2 Russ. 262.
Where testator bequeathed to his daughter a considerable sum, part to be invested in trust, and part to be paid to her absolutely and directed all the specific and pecuniary legacies to be free of the legacy duty, and by a codicil reciting the death of his daughter he gave a specific sum to the husband instead of the legacy given to the daughter now
If a testator, after bequeathing to a legatee by will a certain sum, make a codicil, and reciting the fact of having before given such a legacy, proceed to give another of greater amount, but in terms which indicate that he designs only to add so much to the former bequest as that is exceeded by the latter, a claim to both gifts cannot be sustained. Thus, where in a codicil the [*]testator, after noticing that he had previously given to his wife 1,000l. added, “but now I give her 1,6001.," it was decided, on the apparent intention, that the latter sum was the whole pecuniary provision to which she was entitled (a) (1).
A bequest by codicil to two trustees for the benefit of an infant will not be considered augmentative of an equivalent bequest by will to only one of the trustees for the same purpose ; it being improbable that the party should mean to create two distinct trusts, and provide two separate equal funds for the benefit of the same individual,—one to be under the management of a single trustee, and the other under the joint management of that trustee and a second (6).
(a) Mayor of London v. Russel, Finch. 290.
(b) Benyon v. Benyon, 17 Ves. 34.
lapsed,” held to be a distinct substantive bequest to the husband, and not by way of substitution, and that he was not entitled to have it free of the legacy duty. Chatteris v. Young, 2 Russ. 183.
(1) When looking at the whole contents of the two instruments, the testator's intention may be inferred that an annuity given by the codicil should be a substitute for two others given in the will, the bequests are not to be treated as cumulative. Hemming v. Gurney, 1 Dow. N. S. 35. 1 Bligh, N. S. 479.