Mr. Mansfield, Mr. Piggott, and Mr. Romilly, for the defendant.

The Attorney-General in reply.

The arguments of counsel turned chiefly upon the second question, which is not material to this report.]

MASTER OF THE ROLLS:

The question is, whether according to the true construction of the will and the third codicil, and under the circumstances, the legacy by the codicil is accumulative and additional; giving a second provision by way of portion of 10,000l. above that provided by the will. In the course of the cause evidence was offered on the part of the Duke of Leeds, the executor and residuary legatee; to prove, that the legacy was not intended to be accumulative, from declarations by the testator as to the portions he intended for his younger children. An objection being taken to receiving the evidence, it was fully argued; and I confess I felt some doubt upon the point: but it occurred to me, that upon consideration of the question arising upon the will and codicil it might be unnecessary, if I should form my opinion upon the will and codicil, to come to any determination upon that point as to admitting the evidence; which I should be very glad to avoid; and I have satisfied myself, that upon the true construction of the will and codicil, and the circumstances, under which they were made, there is no necessity to resort to evidence to support the construction of the executor; being of opinion, that this legacy according to the true construction of the will and codicil is not to be held accumulative, but is only a gift of the same portion and provision by the testator to his daughter by name, to which before she was entitled under the description of after-born children.

Being of this opinion, it is better for me to say little upon the evidence. I should have found great difficulty in admitting it. It does appear most clearly, if the report is right, that Lord THURLOW in Coote v. Boyd + thought it admissible on either side. His Lordship did admit it upon that side, upon which, if this plaintiff is right, it was not necessary; for it is contended, that

† 2 Br. C. C. 521.

OSBORNE

v.

THE DUKE

OF LEEDS.

May 18.

[379]

[ *380 ]

OSBORNE

v.

it is an established rule, taken from the Spiritual Court, that two THE DUKE legacies are accumulative, if given by two instruments. If that OF LEEDS. is a rule, I admit, I cannot raise a presumption by evidence against it; and I am inclined to think, it must be taken to be a rule. But in Hooley v. Hatton, † from which that is taken, the authorities, from which that rule is deduced, had no idea but that evidence is admissible: and it is stated by the writers upon the Civil Law, that the legacies shall be accumulative, if by two instruments, unless the executor can shew evidence to the contrary. If it is taken as a rule of this Court, it would be a violation of it to admit evidence to raise a presumption against it. I should therefore, if it is taken as a rule in this Court, be very unwilling to let in evidence against it, first for the executor. It was taken for granted in many cases, and even in Hooley v. Hatton, that it would be admissible; and in James v. Semmings it seems from one passage in the report, as if the Court doubted, whether parol evidence would not have been admissible; *though the determination was upon the instruments themselves, that they were not accumulative. I will say no more upon the point as to the admissibility of the evidence; only desiring to be understood not to give any opinion upon it whatsoever.

[ *381 ]

The question then is to be considered upon the will and codicil, taken together. First, this is the case of father and child; and I must conceive, unless the Court has been erroneous in establishing the rule of presuming against double portions, that is a very material ingredient. Upon the will it is clear, that was the provision the testator thought sufficient for his only then younger child and any after-born children he might have. This being his intention, and his object to provide for his younger children, he soon after by a codicil gave to his son far short of what he had given him by the will, but a considerable addition to it viz., his money in the funds. It seems then to have been his intention to give his son that in addition; leaving the will to operate as to the legacy. Afterwards thinking, he might not have sufficient, or, perhaps, that he had not so certainly secured that provision to his son, as might be, he creates a trust; which is only giving a real and specific security for the same portion: † 1 Br. C. C. 390 n. 2 H. Black. 213; 3 R. R. 362.

OSBORNE

v.

OF LEEDS.

but having done that, and another child being born, he immediately recurs to his will; and to put an end to any doubt, THE DUKE whether that should be in addition, he makes a codicil, reciting, that he had otherwise sufficiently provided for his son, which was only by that charge, and revoking the legacy to him by the will; thereby declaring it not to be his intention, that his son. should have the provision by the charge and also the legacy; meaning, that 10,000l. should be his only portion with that small addition by the prior codicil; and then he gives the sum of 10,000l. to his daughter by name.

It is said, this is a gift to the same person of the same sum in two separate instruments; and therefore ex necessitate it is an accumulation: but if I read this right, it is neither more nor less, than giving the portion to his daughter, as persona designata : she having come into existence after the execution, and not being mentioned in it nominatim, but being merely included in the description of after-born children. It is asked, why he did not revoke the legacy to her. He did not mean it. He intended that legacy to stand. Whether he took a wise way to put it out of *doubt is another question; which is sufficiently answered by the argument it has occasioned. But we must consider, what might have been floating in his mind. It might, as has been suggested at the bar, occur to him, that it might mean children born after his death; and possibly that is the sense, in which he meant it; and knowing, how critical lawyers are upon words, and thinking it necessary to guard against such a construction, he took that course, with a view to put it out of doubt. I will put this case; and no one can doubt upon it. Suppose, a testator by a will made before his marriage gave to any woman he might afterwards marry 2,000l. a year by way of jointure; that afterwards he married; and then by a codicil gave his wife the same jointure: could it possibly be intended, she should have two jointures? This is almost exactly the same case. There are two provisions. I am not determining, and will not say, whether upon two provisions, one by will, the other by codicil, without the circumstances that exist in this case, the rule would or would not attach: but it would be going too far to permit this rule to operate, when I am satisfied to the contrary;

[*382

OSBORNE

r.

OF LEEDS.

and that there is sufficient ground to say, the testator only meant THE DUKE a gift to his daughter by name of the same provision he before made for her as one of his younger children. The counsel for the plaintiff, aware of the difficulty, that might be thrown in the way, asked, whether it is a revocation or a substitution. In the first case, as the legatee would lose the benefit of the charge upon the real estate, that difficulty would arise, if I should consider this either as a revocation or a substitution. But according to my idea it is neither the one nor the other; but only a declaration, that the plaintiff should have the same legacy as was given by the will to his after-born children.

[384]

All the judges, before whom this question has been, have decided, that small circumstances will raise an inference against this accumulation. This case, I think, affords a sufficient ground. Therefore, I am satisfied in declaring, that upon this will and codicil the plaintiff is entitled only to one legacy of 10,000l.; but it shall be particularly mentioned in the decree, that evidence was offered, and not read, without prejudice to the question, whether it is admissible, or not.

The decree stated, that, an objection having been taken for the plaintiff to reading the depositions of the Duchess of Leeds and George Brooks, Esq. in order to prove, that the Duke of Leeds did not intend to give the plaintiff under the description of an after-born child a legacy of 10,000l. by his will and a like legacy by his codicil, dated the 14th of April, 1798, which was offered by the defendant, the eldest son and sole executor of the testator, without hearing the said evidence read, but without prejudice to the question as to the admissibility thereof, the Court declared, that upon the true construction of the will and codicil, dated the 14th of April, 1798, the plaintiff is not entitled to the provision of 10,000l., given by testator's will to each of his after-born children, and also to the legacy of 10,000l. given to her by the codicil, dated the 14th of April, 1798.

The decree directed the accounts to be taken; and that, in case the personal estate shall not be sufficient for payment of the debts, funeral expenses and legacies, any of the parties are to be at liberty to apply.

HOLLOWAY v. HOLLOWAY.†

(5 Vesey, 399-404.)

Testator bequeathed 5,0007. in trust for his daughter A. for life, and after her decease for such child or children, as she shall leave at her decease, in such shares as she should think proper; and in case she shall die, leaving no child (which was the event), then as to 1,000l. for her executors, administrators, or assigns; and as to the remaining 4,0007. in trust for such person or persons as shall be my heir or heirs at law.” The 4,0007. vested in A. and the other two daughters of the testator, being his co-heiresses at law and next of kin at his death.

If that union of characters had not occurred, Quare, whether the next of kin could not claim. Upon this point see Smith v. Butcher (1878) 10 Ch. D. 113.

EDWARD REEVES by a codicil, dated the 21st of July, 1763, gave to trustees the sum of 5000l.: in trust to put the same out at interest on Government or other securities, and to pay the interest, income and produce thereof to his daughter Hindes for and during the term of her natural life, separate and apart from her husband. The codicil then proceeded thus:

"And after the decease of my said daughter Hindes then upon. this farther trust, that they, the said Augustine Batt and Benjamin Holloway, their executors or administrators, do pay the said 5,000l. unto such child or children of my said daughter Hindes as she shall leave at the time of her decease in such shares and proportions as she shall think proper to give the same; and in case she shall die leaving no child, then as to 1,000l., part of the said 5,000l., in trust for the executors, administrators or assigns, of my said daughter Hindes; and as to the 4,000l. remainder of the said 5,000l., in trust for such person or persons as shall be my heir or heirs at law."

The testator died in 1767; leaving his daughter Susannah Hindes and two other daughters his co-heiresses at law and his next of kin at the time of his death. Susannah Hindes having survived her husband died without issue in August, 1798.

The bill was filed by the great grandchildren of the testator by his two other daughters, the plaintiffs being his co-heirs at law at the death of Susannah Hindes, against the representatives of

+ Mortimer v. Slater (1877) 7 Ch. D. 322, 47 L. J. Ch. 134. R.R.-VOL. V.

G

1800. May 20, 29.

Rolls Court.

ARDEN, M.R.

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