Зображення сторінки

structive ademption. But it is. observable, that in none of such cases was there room for an interpretation of the expressions used, different from that which was actually made. This point deserves attention; for where the words are ambiguous, admitting of a double signification, or of being applied to another distinct bequest in the same will, the general rule will prevail. Thus where legacies (described as portions) of 5,000l. each were given to the testator's daughters, and also certain shares of the residuary estate, which was expected [*]to be large; and the testator subsequently on a treaty for marriage of one of the daughters said, “he intended to advance with her a portion of 5,cool., and that she would have something considerably more at his death, equal, or nearly equal, to the portion;" the latter clause of the sentence was considered not necessarily to refer to the 5,0001. legacy, but on the contrary, and with more probability, by reason of the indeterminateness of the words “equal or nearly so," to the share of the surplus or residuary estate. The legacy of 5,0001. was therefore held to be satisfied (a).

The admissibility of parol declarations as evidence does not depend on the circumstances under which they take place. Whether made in conversation with people who have nothing to do with the matter, people making impertinent inquiries and obtaining angry answers, or in discourse with parties really interested, all are alike admissible. But they are entitled to very different credit and weight. Declarations to the

(a) Ellison v. Cookson, 2 Bro. C. C. 307; 3 ib. 61; 1 Ves. jun. 100; 2 Cox, 220, S. C.

intended husband himself (a), to his father (6), or to an agent in the marriage treaty (c), are considered of first importance. Of no less moment are declarations to the testator's wife, or other persons having an interest of affection in the object to be provided for (d). Next in point of consequence may be reckoned conversations with a stranger, where such conversations bear generally a character of seriousness and veracity (e): and last of all, vague and frivolous discourse with persons who seek officiously to intrude themselves into the testator's confidence; which, when an intention appears on the part of the parent to evade inquiry, and mislead the interrogator, is in truth altogether devoid of force (f).

But extrinsic evidence is not only admissible to repel a presumptive ademption, it is also allowed to fortify the presumption when impeached. Thus a recital in the marriage settlement of the child, stating the sum advanced to be given as the child's portion (g), or an acknowledgment to that effect in a memorandum delivered on receiving the money (h), has been relied on as demonstrative of the parties? understanding on the subject. Parol declarations, likewise, are equally efficacious (i). It is observable,

(a) Shudal v. Jekyll, 2 Atk. (f) Trimmer v. Bayne, 7 Ves. 516; Ellison v. Cookson, 1 Ves. 508, 519, 520. jun. 100.

(g) Farnham v. Phillips, 2 Atk. (6) Debeze v. Mann, 2 Bro. 215; Watson v. Earl of Lincoln, C. C. 165, 519.

Ambl. 325. (c) Ellison v. Cookson, 2 Bro. (h) Scotton v. Scotton, 1 Stra. C. C. 307; 3 ib. 60 ; 1 Ves. jun. 235. 100, S. C.

(0) Hale v. Acton, 2 Cha. Rep. (d) Robinson v. Whitley, 9 Ves. 35; Hoskins v. Hoskins, Prec.

Cha. 263; Pepper v. Winyeve, 8 (e) Dwyer v. Lysaght, 2 Ball. Vin. Abr. 158 ; Biggleston v. and Be. 156. See also 7 Ves. 520. Grub, 2 Atk. 48; Rosewell v.


however, that testimony of the latter kind cannot be adduced to show that an ademption was intended, unless the circumstances of the case be such as primarily raise that supposition (a) (1).

Bennett, 3 Atk. 77 ; Mascal v. Ves. 321.
Mascal, 1 Ves, 323; Hartopp v. (a) Farnham v. Phillips, 2 Atk.
Hartopp, 17 Ves. 184 ; Monck v. 215; Freemantle v. Bankes, 5 Ves.
Lord Monck, 1 Ball. and Be. 298, 79. See also Brown v. Selwyn,
305; Dwyer v. Lysaght, 2 ib. 156. Forr. 240; 1 Vos. 323-4, cited.
See also Pole v. Lord Somers, 6

(1) Webley v. Langstaff, 3 Dessaus. 504. Pile v. Pile, 1 Ch. R. 199. 1 Equ. Abr. 204. pl. 5. Hinchcliffe v. Hinchcliffe, 3 Ves. 516. 6 Ves. 321. 398. 15 Ves. 514. 1 Br. Ch. G. 296. 3 Br. Ch. C. 61.



Of the Presumption in Cases of Double Legacies.

THERE are two classes of cases on this subject. The first comprises those in which both legacies are given by the same instrument; the second, those in which they are given by different instruments. But both these classes are susceptible of a subdivision :the former is into cases, where the same specific article is twice bequeathed; where sums of the same amount are given ; and where the sums vary in amount: the latter, into cases where the legacies are specific, and where they are general.

Whether the bequests be contained in the same or different instruments, if the subject of both be a specific article, as a particular piece of furniture, the gift is of necessity construed single, the repetition being obviously attributable to mistake or carelessness (a).

When double pecuniary. legacies (b) or double an

(a) See per Aston, J., in Hooley (6) Garth v. Meyrick, 1 Bro. v. Hatton, 1 Bro. C. C. p. 390, C. C. 30. See also per Aston, J., note; per Lord Thurlow, 1 Bro. and per the Lord Chancellor, in C. C. 393; and per Lord Hard- Hooley v. Hatton, i Bro. C. C. wicke, 2 Atk. 638.

390, n.; Dick. 492.

nuities (a)[*] of equal amount are given by the same will or codicil, the legatee, primâ facie, is entitled to one legacy or annuity only. From the similarity of the gifts, unless other circumstances clearly prove that they were given from different motives, identity of intention is presumed, and that the repetition proceeded from inadvertence or excessive caution. And slight niodal variations in the bequests will not alter this construction. Thus, the circumstance of the first legacy being given to a feme covert generally, while the second is given “ for her own use and disposing notwithstanding her coverture” (6), or of the first being made payable at an earlier period than the second (c), is in this view accounted immaterial (1).

But diversity of motive, when plainly shown, will of course except the case from the operation of the general rule. Much more, as it should seem, if an intention to confer a double bounty can be gathered from the general scope and tenour of the will (d).

If the legacies, though given by the same instrument, be of unequal amount, the presumption is in favour of their being accumulative. Here the second bequest cannot be referred to mistake or too much caution : the variation between it and the former legacy admits not fairly of such an explanation. It

(a) Holford v. Wood, 4 Ves. also per Aston, J. 1 Bro. C. C. 76, 79, 91.

390, n. (6) Greenwood v. Greenwood, (d) See and consider Clive v. i Bro. C. C. 30, n.

Walsh, 1 Bro. C. C. 146. (c) Holford v. Wood, supra. See

(1) Dewitt v. Yates, 10 Johns. R. 156.

« НазадПродовжити »