Hill v. Hill, 11 Jur. N. S. 806; Langdale v. Esmonde, I. R. Chap. XV. 4 Eq. 576; see Clarke v. Butler, 1 Mer. 304.

Possibly if the enumeration of specific things comes after the

gift of the residue, the same result may follow. Bethune v. Kennedy, 1 M. & Cr. 114; Mills v. Brown, 21 B. 1.

The subject of residuary gifts will be found discussed in Chapter XIX.

GIFTS OF ALIQUOT PARTS OF A FUND.

aliquot parts.

If a testator, purporting to dispose of a specific fund of Gift of fund in 3,000l., gives one-third to A, one-third to B, and one-third to C, each legacy is specific, and each lega tee takes a third, whatever the fund may turn out to be, whether more or less than 3,000l.

Where the gift is not in form in aliquot parts, it may appear that that is in effect the intention. See Chambers v. Chambers, Mos. 333, commented on in Booth v. Alington, 6 D. M. & G. 613; and Cordell v. Noden, 2 Vern. 148, commented on in Smith v. Fitzgerald, 3 V. & B. 2.

If the fund is stated by the testator to be 3,000l., and he gives 1,000l. to each of three legatees, this is in effect the same as if he had given it in aliquot parts. If the fund is deficient, the legatees abate rateably; and if the gift of one of the sums fails, the failure does not enure for the benefit of the legatees of the other sums. Page v. Leapingwell, 18 Ves. 463; Hazlewood v. Green, 28 B. 1; In re Jeaffreson's Trusts, L. R. 2 Eq. 276; Walpole v. Apthorp, 4 Eq. 37; see In re Cruddas; Cruddas v. Smith, (1900) 1 Ch. 730.

If the fund is one over which the testator has a power of appointment, the case, as regards the last point, appears to be different. If the testator over-estimates the fund and appoints it in specific sums, and the appointment of one of such sums fails, the failure enures for the benefit of the other legatees so far as necessary to make up the sums appointed to them. Eales v. Drake, 1 Ch. D. 217.

Where the sum last given out of a specific fund is given as he surplus or residue of the fund, a contest has frequently

K 2

Division of specific sums.

fund in

Effect of lapse

of appointed

sums.

When gift of

residue of

specific fund specific.

Chap. XV.

Testator not dealing with a fund of definite amount.

arisen whether the so-called surplus is not in effect a gift of the specific sum remaining.

If the sum last given is stated in figures but is also described as the residue of the fund, or the residue of the fund is given and the amount is then stated in figures, this is a specific gift. Hazlewood v. Green, 28 B. 1; In re Jeaffreson's Trusts, L. R. 2 Eq. 276; Walpole v. Apthorp, 4 Eq. 37.

And the authorities appear to establish that, when the testator shows that he is dealing with a fund of a specific amount, and gives a sum to A, a sum to B, and the residue to C, and there is no contrary intention, the residue is as specific as the named sums. Page v. Leapingwell, 18 Ves. 463; Ex parte Chadwin, 3 Sw. 380; Easum v. Appleford, 5 M. & C. 56; Wright v. Weston, 26 B. 429; Elwes v. Causton, 30 B. 554; Walpole v. Apthorp, 4 Eq. 37; Baker v. Farmer, 3 Ch. 537, p. 540; see Miller v. Huddlestone, 6 Eq. 65.

To make the gift of the residue specific it must appear that the testator is dealing with a fund which he conceives to be of a certain amount, otherwise there is no ground for saying that the residue is specific. Falkner v. Butler, Amb. 514; Petre v. Petre, 14 B. 197; Virian v. Mortlock, 21 B. 252; De Lisle v. Hodges, 17 Eq. 441.

If debts are directed to be paid out of the fund, or if the residue has to bear payments which must be of uncertain amount, the residue is not specific. Harley v. Moon, 1 Dr. & S. 623; In re Currie; Bjorkman v. Kimberley, 36 W. R. 752.

And if the fund being stock, the testator makes gifts partly of stock and partly of money, a gift of the residue is not. specific. Carter v. Taggart, 16 Sim. 423.

In In re Harries' Trust, Jo. 199, where the fund was policy monies, the appointment of definite sums exhausted the amount insured and the residue could only carry bonuses of uncertain amount, the residue was, therefore, not specific. See, too, Corballis v. Corballis, 9 L. R. Ir. 309.

There may, of course, be special circumstances or indications of intention which will make the gift of the residue of a specific fund specific. Lakin v. Lakin, 13 W. R. 704; Re Bringloe's Trusts, 26 L. T. 58; Fee v. McManus, 15 L. R. Ir. 31.

66

Chap. XV.

Gift of sum part of larger

sum.

out of

A gift of a sum of 30,000l., " part of " 120,000l., is a gift of 30,000l., though the fund may turn out less than 120,000l. Booth v. Alington, 6 D. M. & G. 613. Where a testator is dealing with a specific fund of uncertain Effect of gifts amount and directs legacies to be paid out of it, the legacies uncertain are not aliquot parts of the fund. They must abate rateably amount. if the fund is insufficient to pay them. On the other hand, if the fund is more than sufficient to pay them, they do not share in the increase. Lastly, if one of the legacies fails by lapse, the lapse does not benefit the residuary legatee until the other legacies have been paid in full. In re Tunno: Raikes v. Raikes, 45 Ch. D. 66.

CHAPTER XVI.

Chap. XVI.

Legacies by same instrument of equal amount;

of unequal

amount.

Legacies by different instruments.

CUMULATIVE AND SUBSTITUTIONAL LEGACIES.

I. LEGACIES of equal amount given by the same instrument are merely repetitions. Holford v. Wood, 4 Ves. 75; Manning v. Thesiger, 3 M. & K. 29; Brine v. Ferrier, 7 Sim. 549; Early v. Benbow, 2 Coll. 342; Early v. Middleton, 14 B. 453. But there may be an intention to give both. Barkenshaw v. Hodge, 22 W. R. 484, where the gift was to trustees, and the legacies were introduced by the words "upon trust to pay," and "upon further trust to pay," &c.

Parol evidence would be admissible to show that the testator meant the legatee to have both legacies, such evidence being in support of the prima facie meaning of the instrument. See Hurst v. Beach, 5 Mad. 351; Hall v. Hill, 1 Dr. & War. 94.

If the legacies are not equal the legatee is entitled to both. Yockney v. Hansard, 3 Ha. 622; Curry v. Pile, 2 B. C. C. 225; Baylee v. Quin, 2 Dr. & War. 116; Adnam v. Cole, 6 B. 353.

The rules with regard to cumulative legacies do not apply to the case of a pecuniary gift and a residue given to the same person. In such a case the legatee is entitled to both. Kirkpatrick v. Bedford, 4 App. C. 96.

II. Legacies of equal, less, or greater amount, given by different instruments, as by will and codicil, to the same person, are prima facie cumulative. Hooley v. Hatton, 1 B. C. C. 390, n.; Lee v. Pain, 4 Ha. 201, 216; Roch v. Callen, 6 Ha. 531; Cresswell v. Cressweli, 6 Eq. 69; Wilson v. O'Leary, 12 Eq. 525; 7 Ch. 448; Walsh v. Walsh, I. R. 4 Eq. 396; In re Armstrong; Mayne v. Woodward, 31 L. R. Ir. 154.

Bequests of a share of residue by will and of a pecuniary Chap. XVI. legacy by a codicil are, of course, cumulative. Gordon v. Anderson, 4 Jur. N. S. 1097; Ledger v. Hooker, 18 Jur. 481.

It makes no difference that the codicil recites the gift by will. Guy v. Sharp, 1 M. & K. 589.

The fact that some legacies in the codicil are expressed to be in addition affords an argument that the others are substitutional, but is not conclusive. Hooley v. Hatton, 1 B. C. C. 390, n.; Allen v. Callow, 3 Ves. 289; Mackenzie v. Mackenzie, 2 Russ. 272; Wray v. Field, 2 Russ. 257; 6 Mad. 300; Barclay v. Wainwright, 3 Ves. 462.

The fact that a legacy given by a codicil is expressed to be in addition to a legacy given by the will does not show that it is not also in addition to a legacy by a prior codicil. Spire v. Smith, 1 B. 419; Watson v. Reed, 5 Sim. 431; see Sawrey v. Rumney, 5 De G. & S. 698.

III. It may, however, appear that the gift by the later Legacies by instrument is intended to be substitutional. This may be shown:

1. By the form of the second instrument.

a. If the instrument by which the second gift is made is not a codicil, but is described as a last will and testament, the presumption is strong that it was intended to be in substitution so far as it goes for the prior instrument. Jackson v. Jackson, 2 Cox, 35; Kidd v. North, 14 Sim. 463; 2 Ph. 91; Tuckey v. Henderson, 33 B. 174.

b. If the additional instrument recites that the testator has not time to alter his will, legacies given by it will be substitutional. Russell v. Dickson, 4 H. L. 293.

c. If the additional instrument is treated as explanatory of and to be incorporated into the will, the case may be brought within the rule as to additional gifts in the same instrument. Duke of St. Albans v. Beauclerk, 2 Atk. 636; Fraser v. Byng, 1 R. & M. 90.

And in the same way several testamentary papers may be so connected together as to be in fact one instrument. Brine v. Ferrier, 7 Sim. 549.

The same will be the case where there is a gift to a person

different instruments will be substitutional

if the instru

ments them

selves are substitutional,