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afterwards of the very longest life. If that would not have been a
breach of the condition, would it be a breach if the child came back
at the age of seven, or if he came back at the age of ten? If he
remained abroad all his minority, you would certainly say in that
case that he was educated abroad. But the question is, not whether
in the particular case he was educated abroad, but whether you can
predicate on reading the will, what it was that was to defeat the
vested estate? I concur in Lord ELDON's observations about an
estate being defeated by a person not living and residing in a
particular house, which he thought too remote; and I think that
this is far more remote than that.

It is not necessary for me to say here whether these children
were educated abroad. If I were bound to form an opinion upon
that subject, I should concur with my noble and learned friend in
saying, that I do not think that they were educated abroad within
the meaning of the condition.

one.

With regard to their being educated in the Protestant religion, I quite agree with my noble and learned friend, *that the burthen of proof is on the other side to show that they were not educated in the Protestant religion. But it appears to me, that they were educated in the Protestant religion, so far as it was possible that they should be so educated. There is no reason to suppose that any of them were other than Protestants up to the time when they attained twentyAfter that, one of the young ladies, having married a Roman Catholic, abjured the Protestant religion and became a Roman Catholic; but that does not show that she was not educated in the Protestant religion. There is evidence that one of them was confirmed at St. George's. As to all of them, Protestant services were performed so far as it was possible that they should be performed; and as to the two young ladies particularly, the evidence goes to show that they were rather regular attendants at church while living in the north of England. And for all intents and purposes, if the burthen of proof had been upon them to show that they were educated in the Protestant religion, I am inclined to think that the affirmative is made out. That the negative, namely, that they were not educated in the Protestant religion, is not made out, appears to me abundantly clear. I concur, therefore, with my noble and learned friend, that the decree must be affirmed, and that the appeal should be dismissed with costs.

LORD KINGSDOWN:

My Lords, I entirely concur in the propriety of the decision that the decree below should be affirmed.

Decree appealed from affirmed, and appeal dismissed,

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with costs.

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HOPWOOD v. HOPWOOD (1).

(7 H. L. C. 728-750; S. C. 29 L. J. Ch. 747; 5 Jur. N. S. 897; 34 L. T O. S. 56; reversing 3 W. R. 549.)

The presumption of law is against double portions; where a sum of money is given by the will of a parent to a particular child, and the like sum is afterwards secured by a settlement on the marriage of that child, there is a presumption in favour of the ademption of the legacy, but this presumption may be rebutted by evidence of intention to the contrary. The burden of proof of intention is on the person claiming the double portion. It is not necessary that the legacy should be paid in order that it may be adeemed.

Though a codicil for certain purposes confirms a will, and brings it down to the date of the codicil, it does not necessarily make the will operate as if it had been originally made at the date of the codicil.

A father made his will, giving to each of his three younger children 5,000l. On the marriage of one of them, a daughter, he paid to the husband 2,000l. By a codicil he declared that sum to be in part satisfaction of the 5,000l. One of his younger sons, F, married. On that marriage, the father entered into a covenant that he would cause to be paid to the trustees of the marriage, within twelve months after his death, the sum of 5,000, with interest in the meantime, at the rate of five per cent., such interest to be employed in the payment of premiums on life policies. By a codicil made after the date of this settlement, the testator recited what he had given by his will to each of his two younger sons, and directed his trustees to raise "a farther sum of 7,000l." for each of them, and to hold such farther sum on the same trusts as those of the 5,000l. The testator afterwards raised a sum of 5,000l., with which he purchased a lieutenantcolonelcy in the Guards for his other younger son, H., and he then made a codicil, declaring that this sum, so laid out, was to be taken by H. in satisfaction of the legacy given him by the will:

Held, that these circumstances did not show an intention on the part of the testator rebutting the presumption that the 5,0007. given by the will to F. were adeemed by the settlement.

Meaning of the word

farther."

THIS was an appeal against an order of the MASTER OF THE ROLLS (2), which had been affirmed on appeal.

Robert Gregge Hopwood, Esq., by his will, dated 29th April, 1829, devised his real and personal estates to trustees, on trust (among other things) to raise the sum of 5,000l. a piece for his two younger sons, Frank and Hervey, and his daughter Mary, "for their portions," on attaining twenty-one, with interest, from the time of his decease to the time of payment; and in case his son Frank should not at the time of his decease have taken a bachelor's degree at the university, and should not then have attained twenty four, to raise," in addition to the interest of his portion," 50l. per annum till one of those events should happen; and to raise, "in addition to the portion," such a sum for his son Hervey as would purchase a cornet's or ensign's commission; and if before his said son attained twenty-one he should be desirous, and an opportunity should offer of purchasing a lieutenant's commission, they should raise so much of the 5,000l. as should be necessary for that purpose, the interest on the sum so raised to be no longer payable. On the 7th July, 1834, the testator made a codicil, by which he (1) In re Pollock, Pollock v. Worrall (1885) 28 Ch. D. 552, 54 L. J. Ch. 489,

52 L. T. 718.
(2) 22 Beav. 488.

V.

revoked that part of his will which gave his daughter Mary the sum HOPWOOD of 5,000l., he having, on her marriage with Lord Molyneux, paid HOPWOOD. into the hands of his Lordship the sum of 2,000l. in part payment of the said portion, and he bequeathed to her the farther sum of 3,000l. to complete his original intention; and he thereby ratified and confirmed his will.

On the 26th May, 1835, in contemplation of the marriage of his son Frank with Lady Elinor Mary Stanley, a settlement was made, by which the testator covenanted that his heirs, executors, &c., should, within twelve months after his decease, pay unto the trustees of the settlement the sum of 5,000l., and in the meantime he covenanted to pay them 51. per cent. interest on that sum, and it was agreed among the parties to the settlement that the trustees should, with that interest, keep on foot certain policies of assurance therein mentioned, and pay the surplus to the husband and wife for life.

On the 19th February, 1850, the testator executed a second codicil, in which, after reciting the provisions in his will as to the 5,000l. for each of his two sons, he directed his trustees to raise "two farther sums of 7,000l. each," one of which sums should be held by them in trust for Hervey absolutely as in the will declared of and concerning the legacy of 5,000l., and the other in the same manner for Frank, as in the will declared "of and concerning his said legacy of 5,000l. thereby given and bequeathed for his benefit;" and he directed his trustees to raise the legacies therein contained by the same means as directed in the will of and concerning the portions or legacies thereby given and bequeathed; and he thereby ratified and confirmed his will and first codicil, except as thereby altered.

On the 16th April, 1851, the testator made a third codicil, by which, reciting that he had, since the date of the second codicil, raised the sum of 5,000l., with which he had purchased for his son Hervey a lieutenant-colonelcy in the Guards, and which sum might remain a charge on his property at his death, he declared it to be his intention that the sum of 5,000l. so invested in such purchase should be accepted by his said son in satisfaction of the legacy of 5,000l. given in the will, and he thereby revoked and cancelled that legacy. In all other respects, he ratified and confirmed his will and the two codicils.

The testator died in July, 1854. The executors duly paid to the respondent the amounts stated in the will and codicil, with interest, but the respondent claimed, as a debt, the amount secured by the settlement. The appellant, the testator's eldest son, on whose estate this claim was a *charge, filed his bill in Chancery on the 29th December, 1856, praying that the respondent might be ordered

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HOPWOOD to pay the sum of 5,000l. and interest to the trustees of the HOPWOOD. Settlement, and for general relief.

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Aug. 10.

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The respondent put in his answer, and on the 23rd July, 1856, the cause was heard. The MASTER OF THE ROLLS made a decree, by which it was declared that the legacy under the will was not adeemed by the covenant in the settlement, but that the respondent was entitled to the benefit of both. This decree was taken by appeal to the Lords Justices. Their Lordships did not agree in opinion. Lord Justice KNIGHT BRUCE sustained the opinion of the MASTER OF THE ROLLS. Lord Justice TURNER intimated a different opinion. The original decree stood affirmed. The present appeal was then brought.

The Attorney-General (Sir R. Bethell) and Mr. Karslake for the appellant [cited a great number of cases in support of the presumption against double portions, but having regard to the judgments on this appeal it does not seem necessary to refer to those cases or to the arguments for the appellant, which are practically adopted in the judgments].

Mr. R. Palmer and Mr. Little for the respondent [contended that the presumption against double portions was rebutted here by the special circumstances of the case].

THE LORD CHANCELLOR (LORD CAMPBELL):

Having attentively considered all the facts of this case, and examined the authorities referred to, I have come to the opinion pretty plainly intimated by Lord Justice TURNER, contrary to the opinion of the MASTER OF THE ROLLS and Lord Justice KNIGHT BRUCE. I entirely concur, "that it is a question of intention, and that the object is to ascertain the intention of the parties."

I likewise entirely agree with him in thinking that, primâ facie, the testator must be taken by the settlement to have *adeemed the legacy of 5,000l. given by the will, although his be only a presumption, which may be repelled by evidence given for that

purpose.

The testator, by his will, bearing date 29th April, 1829, directs his trustees "to raise the sum of 5,000l. a piece for his two sons, Frank and Hervey, and for his daughter Mary, for their portions." The three younger children were thus put upon a footing of equality, and each, as a provision from the father's substance, was to have the sum of 5,000l. This intention is in no degree interfered with by the directions he gives respecting Frank's degree and reaching twenty-four, or respecting the purchase of a commission in the army for Hervey.

The testator's intention to preserve equality among his younger

children is farther shown by his first codicil of 7th July, 1834, which he made after paying down 2,000l. on the marriage of his daughter. He thereby "bequeathed to her the farther sum of 3,000l., to complete his original intention; to be raised and paid in like way as declared regarding his younger children's portions in his will."

Then comes the marriage of Frank. On this occasion, the testator does not pay down any part of Frank's portion given by the will, but covenants by the settlement, bearing date the 26th May, 1835, that "he would, within twelve calendar months after his decease," pay to the trustees of the settlement "the sum of 5,000l.,” with interest in the meantime at the rate of 51. per cent. Notwithstanding a covenant that this interest should be applied in paying the premiums on certain life policies, for the benefit of Frank and the Lady Elinor, his intended wife, which varies from the bequest of the 5,000l. in the will, it is admitted that the settlement may be presumed to be an ademption or satisfaction of the legacy. Why? Because, merely looking to the will and the testament, the testator obviously *intended that Frank should only have one sum of 5,000l., and not two sums of 5,000l., and that the 5,000l. being paid to the trustees of the settlement, there should be no right to claim 5,000l. under the will. If there was only one sum of 5,000l. in contemplation, the sums mentioned in the will and in the settlement are identified as one and the same sum of 5,000l., and such must be taken prima facie to have been the understanding of the parties thereafter, when this sum of 5,000l. is mentioned or referred to.

I now come to the words of the second codicil, dated 19th February, 1850, upon which the determination of this case must chiefly depend. After referring to his will and making some change in the trustees, the testator thus proceeds. (His Lordship read it: see ante, p. 357.) I am of opinion that regard being had to the intention of the testator, these words have not the effect of giving two sums of 5,000l. to Frank.

By this second codicil Frank and Hervey were each to have the "farther sum of 7,000l." Was Frank to have for his portion the farther sum of 7,000l., beyond 10,000l. or beyond 5,000l. ? It is quite clear that Hervey was only to have 7,000l. beyond the sum of 5,000l., making 12,000l. We must see if there is any good reason to suppose that the testator intended Frank to have 17,000l. The testator recites the undoubted fact that he had, by his will, bequeathed to each of them 5,000l., and he alludes to the 5,000l. he had bequeathed by his will to Frank without mentioning the settlement, and it must be understood that in his contemplation both the instruments referred but to one sum of 5,000l. as given to Frank. He intimates no intention of conferring any additional benefit upon

HOPWOOD

12.

HOPWOOD.

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