and gave the residue of the monies arising from the sale to others, it was held to be substantially a gift of the whole estate, and as the testator sold the estate in his lifetime, an ademption of the legacy. (e) And where a testator gave to his wife his house in B., and the furniture therein, and the lease of the house expired in the testator's lifetime, and he took another house and removed his furniture to it, the legacy was held to be adeemed. (d)

SECT. V.

Of cumulative legacies.

LEGACIES may be also cumulative: they are contradistinguished from such as are merely repeated.

tator has twice bequeathed a legacy to the

As where a tessame person, it

becomes a question whether the legatee be entitled to both or to one only. And on this point likewise the intention of the testator is the rule of construction. (a)

On this head there are three classes of cases; first, those cases in which there is no evidence of such intention, either internal or extrinsic, one way or the other; those cases where there is internal evidence; and also those in which there is extrinsic evidence.

[335] In regard to the first, where there is neither internal or intrinsic evidence, it is necessary to recur to the rule of law. (b) There are four instances of this class:

Where the same specific thing is bequeathed to A. twice in the same will, or in the will and again in a codicil: in

(c) Newbold v. Roadknight, 1 Russ. & Myl. 677.

(d) Colleton v. Garth, 6 Sim. 19. (a) 4 Bac. Abr. 361. Ridges v. Morrison, 1 Bro. Ch. Rep. 389.

Coote v. Boyd,

527.

Bro. Ch. Rep.

(b) Hooley v. Hatton, 1 Bro. Ch. Rep. 391, in note.

that case he can claim the benefit only of one legacy, because it could be given no more than once. (c)

Where the like quantity is bequeathed to him twice by one and the same instrument: there also he shall be entitled to one legacy only. (d) So where an unconditional legacy was given by a third testamentary paper, it was held to be a substitution for a conditional legacy to the same amount, given by the first testamentary paper. (e)

Where the bequest to him is of unequal quantities in the same instrument; the one is not merged in the other, but he has a right to them both. (f)

And, lastly, where the bequest to him is of equal, or unequal quantities by different instruments: in that case also there shall be an accumulation. (g)

There are likewise cases in which there is internal evidence of the testator's intention; as where a latter codicil appears to be merely a copy of the former with the addition [336] of a single legacy; or where both legacies are given for the same cause; they shall not be cumulative, whether given by the same or different instruments, as they shall be where one is given generally, and the other for an express purpose; or where one reason is assigned for the former, and another for the latter; or where the legacies are not ejusdem generis, as where an annuity and a sum of money is given, (h) or two annuities of the same amount, by different instruments, the one payable quarterly, the other halfyearly: (i) or two annuities of different amounts, the one

(c) 1 Bro. Ch. Rep. 392, in note, and ibid. 393.

(d) 1 Bro. Ch. Rep. 392, in note. Swinb. p. 7, s. 21. 1 Bro. Ch. Rep. 30, in note. 4 Bac. Abr. 361. Masters v. Masters, 1 P. Wms. 424.

(e) Attorney-General v. Harley, 4 Madd. Rep. 263, and see Gillespie v. Alexander, 2 Sim. & Stu. 145, and Fraser v. Byng, 1 Russ. & Myl. 90.

(f) 1 Bro. Ch. Rep. 392, in note. Vide Coote v. Boyd, 2 Bro. Ch.

Rep. 521.

(g) 1 Bro. Ch. Rep. 391 and 392, in note. Masters v. Masters, 1 P. Wms. 423. 1 Ch. Ca. 361. Foy v. Foy, 1 Cox's Rep. 163. Baillie v. Butterfield, ibid. 392. Benyon v. Benyon, 17 Ves. 34. Wray v. Field, 2 Russ. 257. Mackenzie v. Mackenzie, 2 Russ. 262. Guy v. Sharp, 1 Myl. & Keen, 589.

(h) Masters v. Masters, 1 P. Wms. 423.

(i) Currie v. Pye, 17 Ves. jun. 462.

given by the will, payable out of real estate, the other by the codicil, payable out of personal estate. (k) In like manner it may be collected from the context, whether the testator meant a duplication, or a mere repetition of the first bequest. And his intention has been inferred from very slight circumstances. (1)

Extrinsic evidence is also admissible on this subject. Whether the testator by giving two legacies did, or did not, intend the legatee to take both, is a question of presumption, which will let in every species of proof. (m) Hence, if the testator, after the making of the will, and before the date of the codicil, had an increase of fortune, that circumstance has been held to prove that he intended an additional bounty. (n)

SECT. VI.

Of a legacy being in satisfaction of a debt.

UNDER certain circumstances, a legacy is regarded in the [337] light of a satisfaction of a debt. On this point also, the intention of the testator is the criterion. (a)

It is a general rule, that a legacy given by a debtor to his creditor, which is equal to, or greater than the debt, shall be considered as a satisfaction of it. (b)

(n) Masters v. Masters, 1 P. Wms. 424.

(a) 4 Bac. Abr. 362. Cuthbert v. Peacock, 1 Salk. 155, pl. 5. Cranmer's case, 2 Salk. 508. 2 Fonbl. 332.

(b) 1 P. Wms. 409, note 1. Talbot v. Duke of Shrewsbury, Prec. Ch. 394. Jeffe v. Wooff, 2 P. Wms. 132. Fowler v. Fowler, 3 P. Wms. Reech v. Kennegal, 1 Ves. 126. Vide Crompton v. Sale, 2 P. Wms. 555.

353.

But this is merely a rule of construction, and the courts in a variety of instances have denied the application of it, where they have been able to collect from the will circumstances to repel the presumption: (c) As where it contains an express direction for the payment of debts, (d) or if the legacy be less than the debt, it has been held not to go in discharge, nor even in diminution of it. (e)

Nor shall the legacy be a satisfaction if it be conditional, or given on a contingency, for it shall not be supposed, that the testator intended an uncertain recompence in satisfaction of a certain demand. (f) Nor is a legacy considered as a satisfaction where it is not equally beneficial with the debt in one respect, though it may be more so in another; as, where the legacy is to a greater amount, but the payment of [338] it is postponed for however short a period:(g) nor shall a legacy be held to be in satisfaction of a covenant, unless it be equally beneficial in amount, certainty, and time of enjoyment, with the thing contracted for. (h).

Nor if the debt were on an open or running account, so that the testator could not tell whether the balance was in favour of the legatee or not. (i) Nor if the debt were contracted after the making of the will in which the legacy is

given, shall he be supposed to have had it in contemplation to satisfy a debt that was not then in existence. (k)

(c) 1 P. Wms. 409, note 1. (d) Chancey's case, 1 P. Wms. 410. Richardson v. Greese, 3 Atk. 66, 68, sed vide Gaynor v. Wood, at the Rolls, cited 1 P. Wms. 409. note 1, and 4 Bac. Abr. 428.

(e) Cranmer's case, 2 Salk. 508. Hawes v. Warner, 2 Vern. 478. Eastwood v. Vinke, 2 P. Wms. 616. Minuel v. Sazarine, Mos. 295.

(f) 2 Fonbl. 331. Talbot v. Duke of Shrewsbury, Prec. Ch. 394. Cranmer's case, 2 Salk. 508. Nicholls v. Judson, 2 Atk. 300. Spinks v. Robins, ib. 491. Crompton v. Sale, 2 P. Wms. 555. Barrett v. Beckford, 1 Ves. 519. (g) Atkinson v. Webb, Prec. Ch. 236. Hawes v. Warner, 2 Vern.

478. Nicholls v. Judson, 2 Atk. 300. Clark v. Sewell, 3 Atk. 96. Hayes v. Mico, 1 Bro. Ch. Rep. 129. Peacock v. Falkener, ib. 295. 2 Fonbl. 331, note M. Mathews v. Mathews, 2 Ves. 635. 1 P. Wms. 409, note 1.

(h) Blandy v. Wedmore, 1 P. Wms. 324, 409, note 1. Eastwood v. Vinke, 2 P. Wms. 614. 2 Fonbl. 332, note O.

(i) Rawlins v. Powel, 1 P. Wms. 299.

(k) 2 Fonbl. 331, 332. 2 Salk. 598. Chancey's case, 1 P. Wms. 409. Thomas v. Bennet, 2 P. Wms. 343. Fowler v. Fowler, 3 P. Wms. 353.

Parol declarations by the testator are admissible in evidence, to repel the presumption of the satisfaction of a debt, by the bequest of a legacy of greater amount, even where such declarations were not contemporaneous with, but subsequent to the making of the will; and although the expressions in the will may afford an inference in favour of the presumption. (7)

But in all cases the legacy shall be construed as a satisfaction, in case there be a deficiency of assets.

Where a legacy is decreed to be in satisfaction of a debt, the court always gives interest from the testator's death. (m)

On the other hand, if a legacy be left to the testator's debtor, the debt shall be deducted from the legacy, for the legatee's demand is in respect of the testator's assets, without which the executor is not liable, and therefore the legatee in such case is considered by a court of equity to have so much of the assets already in his hands as the debt amounts to, and consequently to be satisfied pro tanto; for there can be no pretence to say, that because the testator gives a legacy to his debtor, that this is an argument to evidence that the testator meant to remit the debt. So under certain circumstances, money or goods lent or delivered by the executor to such legatee, was held by the court to be in part payment of the legacy. (n)

If the testator bequeath to his debtor the debt, this being no more than a release by will, operates, as we have seen, (0) only as a legacy; and is assets, subject to the payment of the testator's debts. (p)

Where a legacy was left to the wife of A., who was largely indebted to the testatrix, and A. became a bankrupt, and his wife afterwards died without having asserted any claim in respect of the legacy, and the assignees claimed it,

(1) Wallace v. Pomfret, 11 Ves. jun. 542. Sed vide 3 P. Wms. 354. (m) Clark v. Sewell, 3 Atk. 99. (n) Jeffs v. Wood, 2 P. Wms. 128.

(0) Supra, 308.

(p) Rider v. Wager, 2 P. Wms.

332.