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It has been before mentioned, that where a testator provides for after-born children generally by will, and on the subsequent birth of a child gives him individually a legacy by codicil, it is prima facie accumulative. This rule, however, holds only in cases where no opposite intention is shown. If such appear, or can be collected from circumstances noticed in the codicil, a different construction will take place. Thus where a man, who had given to his younger son a legacy of 10,0001. and similar legacies to all future children, made a codicil revoking the previous bequest to the son (as other security for his fortune had been lately provided), and giving 10,000l. to a daughter who had [*]been born since the execution of the will; it was held, that the daughter was entitled to only one legacy. Sir R. P. Arden, M. R., said, that the general presumption against double portions was a material ingredient in the case. Upon the will it was clear the testator thought, that the provision he had made was sufficient for his then only younger child, and for any after-born children. This was further manifested by his care to revoke the legacy to his son as soon as the portion intended for him had been otherwise secured. The legacy to the daughter by the codicil was merely giving to her, as persona designata, the sum which had before been meant to be given her as an after-born child. But why, it is then asked, did he not revoke the previous bequest? The answer is, he did not mean it. He intended the legacy should stand. Supposing that the direction in the will might possibly apply to posthumous children only, and knowing how critical lawyers are upon words, he took the precaution to declare that his in
tention with regard to the daughter was the same as if she had not been born till after his death (a) (1).
Another ground of exception from the general rule is the fact of such similarity existing between the different testamentary instruments as creates a supposition that the second was intended to form a substitute for the first, that a re-modelling only of the legacies, not a general augmentation of them, was contemplated. The points of resemblance usually relied on as authorizing this supposition are the following ; [*]first and principally (being in truth the original and proper foundation of the inference), a series of bequests to the same or nearly the same individuals of secondary importance, but corroborative of the conclusion thus afforded, the fact of the legatees being named, in each instrument, in the same order (6), the use of the same forms of bequest (c), the alleging of the same motives (d), the adding of similar
(a) Osborne v. Duke of Leeds, C. 521 ; Moggridge v. Thack5 Ves. 369, 381.
well. (6) Duke of St. Alban's v. (d) Duke of St. Alban's Beauclerk, 2 Atk. 636; Mog. Beauclerk ; Campbell v. Radnor, gridge v. Thackwell, i Ves. jun. i Bro. C. C. 271; Barclay v. 464.
Wainwright, 3 Ves. 462. (c) Coote v. Boyd, 2 Bro. C.
(1) Where a legacy was given to a testator's daughter for her life, and afterwards to children at twenty one, or if after her decease all should die under twenty one or unmarried, then to the daughter's next of kin, the daughter died in the testator's life time leaving one son, an infant, and testator thereupon by codicil bequeathed to the grandson a specific sum payable at twenty one, with direction to expend not exceeding a certain sum in his education, &c. held that the latter legacy was cumulative, and not a substitution. Wray v. Field, 2 Russ. 260.
qualifications (a), the giving, in some instances, of the same specific articles (6), in others, of like sums (c). Further particulars conducing to the same end, are the use of similar introductory expressions,-expressions, for example, of religious resignation (d), an appointment on each occasion of executors, especially if of the same persons (e), and the constituting of the same residuary legatee (f). Nor will partial variations in the amount of the legacies, whether by increase (g) or diminution (h), or in the objects of bounty, whether by [*]adding or omitting (i), alter the construction ; differences in these respects, from time and change of circumstances, being naturally to be expected. But it is observable, that in cases where legatees named in the first instrument are altogether omitted in the second, the former, so far as regards those legatees, will not, it seems, be considered revoked (j); and further, that although a diminishing by the second instrument of some of the legacies
(a) Att.-Gen. v. Harley, 4 Beauclerk; Coote v. Boyd, 2 Bro. Madd. 263.
C, C. 521. () Duke of St. Alban's v. (8) Campbell v. Lord Radnor, Beauclerk; Hemming v. Gurrey, 1 Bro. C. C. 271 ; Duke of St. 2 Sim. & Stu. 311.
Alban's v. Beauclerk ; Gillespie v. (c) Duke of St. Alban's v. Alexander, 2 Sim. & Stu. 145. Beauclerk, 2 Atk. 636, 639; (h) Duke of St. Alban's v, Coote v. Boyd ; Moggridge' v. Beauclerk ; Barclay v. WainThackwell; Barclay v. Wain- wright; Gillespie v. Alexander. wright; Att.-Gen. v. Harley ; Foy (i) Duke of St. Alban's v. v. Foy, 3 Ves. 465, cited ; Hem- Beauclerk ; Coote v: Boyd; Bar ming v. Gurrey,
clay v. Wainwright ; Gillespie v. (d) Att.-Gen. v. Harley, 4 Alexander ; supra. Madd. 263,
(j) Moggridge v. Thackwell, 1 (c) Ibid.
Ves. jun. 464, 473 ; Duke of St. (f) Duke of St. Alban's v. Alban's v. Beauclerk, 2 Atk. 640.
given in the first will not repel the supposed general substitution, yet if all the legacies contained in the second be considerably less than those previously given to the same legatees, the general rule will prevail (a).
Parol declarations, offered as evidence of the testator's intention to give only a single legacy, where the presumption of law opposes such construction, are not admissible. A different rule would break in upon the principle that parol evidence shall not be received to contradict the literal and express signification of a written instrument (b). But when the legal inference-gathered from identity in the motive and nature of the two gifts, or from other internal circumstances—is against their being accumulative, declarations showing the intention to have been a double provision will be allowed ; for here the effect of the evidence is to prove, not that the testator has said what [*]he did not mean, but that he has expressed himself agreeably to his intention : it is to support, not overthrow, the strict and obvious interpretation (c). In like manner, evidence of a change in the testator's circumstances (as an increase in his fortune) between the times of giving the first and second legacy, has been considered effectual to show,
(a) Benyon v. Benyon, 17 Ves. (c) Windham v. Windham, 34.
Finch, 267; Coote v. Boyd, 2 (b) Hurst v. Beach, 5 Madi. Bro. C. C. 521. See also 5 Madd. 351, 360. Also 5 Ves. 380 ; and 360. 2 Atk. 372, note by Mr. Sanders.
that in bestowing the latter the intention was to enlarge the preceding bequest (a) (1).
(a) 1 P. Wms. 424 ; 2 Ves. 242.
(1) A general bequest of a sum of money to a creditor equal to or exceeding the debt due, though it stand in an unliquidated account, is a satisfaction, if it appear either on the face of the will, or by evidence aliunde, to be so intended. Parol evidence to show the intent was held not to be objectionable, as going to vary or contradict the will ; but to be consistent with it. Williams v. Crary, 8 Cowen, 24 6.