than at the former settlement. This is evidence, not for the purpose of explaining the will itself, for which it is clear, it cannot be admitted, but to show the circumstances, under which he made his. will. It is clear, the money arising from the sale of the house was not received by the trustees. From the accounts I cannot exactly trace, how the purchase-money was paid. There are only two receipts entered: one for 50l. the other a note for 317. 10s. I suppose, the rest was paid in money. In 1786 the testator began to be more accurate and more attentive to the value of his property. For some time before that he began to make half-yearly accounts. I cannot trace the increase of the 4 per cent. stock in the interval between the accounts of 1786 otherwise than by the produce of the sale of the house; and it appears, he received part of the purchase-money, by the other entries. It appears, his property had considerably increased. He made his will not a great while before his death; and I am sorry, it was so near; for it appears, that in all probability he had not as complete a recollection of his affairs, as if he had been in better health.

The bill claims both the provisions under the settlement and the will; to which it is answered, that according to the principles of construction of the will of a parent, where portions are provided by a settlement, it ought to be taken in satisfaction; and under all the circumstances of this case I am of that opinion. It was extremely well argued; and every case, that could bear upon it, was very fully observed upon: but it was said, that of late that doctrine, that appeared established respecting double portions, had received some discountenance from Lord Thurlow; and that he had in Warren v. Warren and some other cases hinted a disapprobation of it. From the whole of those cases relied on to prove that I see clearly, that he never did mean to say, such a rule does not obtain in this Court; that a portion provided by the father is to be prima facie intended as a satisfaction. It is very true, that speaking chiefly of the ademption of a legacy by the advancement of the parent afterwards he laments, that the Court has carried it so far as to go in some cases against the intention: but so far from saying, that rule is not established, he says, it is too late to say, it is not the rule now; though it is frequently carried even against the [*527] intention. I never found, that he meant to break through the rule. No man criticised more upon rules laid down by other Judges: but no man was more rigid in observing them, when he could once deduce them.

The cases, I chiefly rely upon, are Copley v. Copley and the succeeding cases, particularly Warren v. Warren; which never was determined by Lord Thurlow. I wish this to be considered as different from the cases of a will and a subsequent advancement. The cases before Lord Thurlow were chiefly of that kind. I take the rule to have been never yet departed from, that prima facie a portion to a child by the will of the parent (1), if there is any other prior pro(1) Personal estate, taken under an intestacy, no satisfaction. Twisden v. Tuisden, post, vol. ix. 413.

vision, is a satisfaction, unless it is shown clearly that it is not so intended. Copley v. Copley is more shortly reported than most of the cases in Peere Williams: but Mr. Cox has stated it from the Register's Book. The time of payment of the sum under the second settlement does not appear in the Register's Book: but the circumstance of that sum not being payable, unless the daughter married, was insisted on in argument to show, it was not a satisfaction for the portion at all events payable at the age of twenty-one. Without taking up the time of the Court in commenting upon the intermediate cases, all of them are cited and relied upon in Warren v. Warren. I do not know, whether the judgment pronounced by Lord Commissioner Ashhurst is to be considered as the opinion of all the Lords Commissioners; for Lord Loughborough did not attend that day. Lord Thurlow, when the cause came before him, is stated to have thrown out this: "a great number of cases have been cited to show, that the Court leans against double portions: but I have not found, that it would do as a distinct rule, that where a parent has made a provision by will for a child, whom he has afterwards provided for in marriage, it is prima facie a satisfaction." That is not the case before him. suppose, if he said so, it must be upon some cases cited in argument. From that and what follows it has been assumed, that he was of opinion, there was no such rule. In subsequent determinations he has said, it is too late to question the rule: but it has been carried too far. The Lords Commissioners gave their opinion shortly; and they particularly mention the rule. The three cases in the note to that report are very material. Ackworth v. Ackworth, 19th July, 1773; Byde v. Byde (1), before Lord Northington, 1 Geo. III.; and The Duke of Somerset v. The Duchess of

Somerset, before Lord Camden, 9th, 10th, and 11th March, [*528] 1767. * Ackworth v. Ackworth very much resembles this

case but it is so long in the Register's Book, that it is not very easy to extract what the case was. A sum of 2200l. was settled in trust for the husband for life; then for the wife for life; then for the children, with a power of appointment. The husband by will gave 2000l. to each of his children; and directed, that his wife should take the interest for life in lieu of her settlement: the legacies were decreed to be a satisfaction. As to Byde v. Byde, the Register's Book has only the dismission of the bill; from which I collect, that the bill was brought by the children, having received one portion, for the other; and was therefore dismissed. I have not examined the Register's Book as to the Duke of Somerset's case: but if it is as reported, it is exceedingly strong. Portions were provided for younger children: the father by his will made a fresh provision for every branch of his family: an election was directed.

It remains to see, whether there were any peculiar circumstances in Warren v. Warren. It is said, the ground of that case was, that it was clear, the testator had forgotten the settlement; and that in

(1) 1 Cox, 44; 2 Eden, 19.

this case he has not. That is a very considerable ingredient; that having forgot one provision he could not mean them to have both; but then you must resort to the rule of double portions; for that would not have done in the case of other persons; as if a debt was due, and he had forgot it (1); for non constat, that he would not have done it, if he had not forgot it: I do not know, that it would do in the case of a wife: non constat, that, if he had recollected, there was something else, he would not have given it (2). Here it is clear, he recollected, there was some settlement upon his wife: but that he recollected what that was, is by no means clear.

A circumstance occcurs here much relied upon in Jeacock v. Falkener (3): he gives her certain bounties: which he declares to be in addition. Why does he not say so as to the children? He knew, he had made a settlement, but forgot the nature of it. He recollected, he had made some provision for his children; but did not know all the ingredients. Jeacock v. Falkener is a strong case; I think a hard case, I confess: but I am perfectly satisfied with it upon the reasoning. All the circumstances are extremely strong to fortify what I take to be the rule; that if portions are

*

provided by any means whatsoever, and the parent gives [*529] a provision by will for a portion, it is a satisfaction prima

facie, and unless there are circumstances to show, it is not so intended; and nothing is more clear, than that these are meant for portions. Maintenance is given by both. Though this is not the case of an eldest son having an estate, upon which portions are charged, yet the Defendant is, as Lord Loughborough says, general representative in land or money, upon whom the burthen of the portions would fall. The doctrine upon this point is very shortly stated, and in a manner, to which I perfectly accede, in Devese v. Pontet, before Lord Kenyon, Finch's Pre. Ch. 240, n. that the rule should be adhered to, as laid down by a very great Judge, Lord Somers; who observed in Goodfellow v. Burchett, that cases of this nature depend upon circumstances; and when a legacy has been decreed a satisfaction, it must be grounded upon some express evidence or at least a strong presumption, that the testator intended it as such. Adopting this rule, as laid down unequivocally by Lord Somers, I am of opinion, that the portions by the will are intended in lieu and satisfaction of the portions by the settlement (4).

It is hardly worth while to state the difference between these cases and those upon the satisfaction of a debt by a will. Of all rules, that have been adopted in this Court, I should regret the rule, that a legacy is a satisfaction of a debt, provided it is equal to the debt. That however is clearly established: but any little circumstances are laid hold of by the Court to take it out of the

(1) See Mr. Cox's note to Chancey's Case, 1 P. Wms. 410, and the note, post

rule (1). That is admitted at the bar not to be the case as to this doctrine of portions: for if both have the same object, and there are only slight differences, still they shall not both avail.

As to the books, I am clearly of opinion, nothing of this sort is admissible to prove, that the will has a meaning different from that, which it purports on the face of it: but it is to prove the circumstances, under which the testator made his will, with regard to the portions provided for his children, as to the state of his property and what he meant to give. The case of Pulteney v. Lord Darlington is very analogous. The question was, whether General Pulteney did or did not intend to comprise in the will an estate, of which he supposed himself the owner. To prove, he did, the steward's

accounts and a settlement, as drawn out by him, of the [* 530] state of his property were offered in evidence, and * admitted, and commented upon. I have a note of the judgment upon the 28th of June, 1776. Chief Justice De Grey says, "the intention appears from circumstances sufficient to make an impression upon my mind, and confirming the opinion, I had formed, not to throw entirely out of the case this settlement by a great family. A man may give by a mean and indirectly what is not his own; either by express condition, or equity arising upon an implied condition the two modes are quite different; and were too much blended in the argument. Where the testator has neglected, probably from ignorance, possibly from inattention to the nature of the estate, to insert such a condition, then a Court of Equity interposes. The cases of double portions have no analogy to election: it is true, they involve election: but they do not depend upon election." Baron Eyre says, he does not agree to the position laid down in the general sense of it, that where a man gives all his estate, he does not mean to give what is not his: what he thinks his is in the sense, he uses the word, his (2).

It is impossible to doubt, that the Bishop did conceive, he had a right to dispose of all the property, he there describes as his own, in satisfaction of this settlement. It is impossible not to say, he thought, the settlement had not specifically bound this property. The bill therefore must be wholly dismissed.

I desire to be understood, that the books, I have admitted, are upon the question of election; upon which question I take them to be admissible but not to explain the will (3).

1. As to the propriety, in testamentary causes, of receiving evidence of matters dehors the will, see the notes to Stratton v. Best, 1 V. 285; and note 1, to Baugh v. Read, 1 V. 257.

2. With respect to the prima facie presumption against a child's claim to a

(1) The same rule prevails, if the legacy is greater than the debt. See Chancey's Case, 1 P. Wms. 408, and Mr. Cox's note. Ante, 466; Wallace v. Pomfret, post, vol. xi. 542.

(2) See the notes, ante, vol. i. 523, 527; post, V. 325, 400.

(3) Post, Eden v. Smyth, Osborne v. Duke of Leeds, vol. v. 341, 369; Pole v. Lord Somers, Druce v. Denison, vi. 309, 385; and the note, 325; Robinson v. Whitley, ix. 577; 1 Ball & Beat. 542.

double portion, and the admissibility of evidence to repel that presumption, see note 6, to Blake v. Bunbury, 1 V. 194; the notes to Ellison v. Cookson, 1 V. 100; and note 2, to Barclay v. Wainewright, 3 V. 462; and as to the importance of adhering to established rules, however doubtful their original propriety may appear, see note 4, to Ellis v. Smith, 1 V. 11.

SPARKES v. CATOR.

[ROLLS-1797, AUGUST 12.]

PORTIONS for children by the will of the parent held a satisfaction of a provision by settlement, upon the intention: slight circumstances of difference, that would repel the presumption of satisfaction between strangers, are not sufficient in the case of parent and child. (a)

By settlement, dated the 22d of August, 1765, reciting an intended marriage between Joseph Sparkes and Mary Cator, and that John Cator, the father of Mary, bequeathed to her 30007. one moiety to be paid upon her marriage, the other upon the decease of her mother Mary Cator, his executrix, and that her *mother [*531] had agreed to pay to Joseph Sparkes upon the marriage 20001. part of the said legacy, and which with 1000l. to be paid to him upon the death of Mary Cator, the mother, would be in full of the said legacy; and that the said Mary Cator, the mother, intended in her life or by will to give to Joseph Sparkes the farther sum of 1000l. to be settled in manner after mentioned, in consideration of the marriage and the said 2000l. and for making a provision for the wife and issue, Joseph Sparkes covenanted to execute two bonds; one for the payment of 4000l. within three years after the marriage, the other in the penal sum of 4000l. with a condition, that so soon as Joseph Sparkes should become possessed of the 1000l. payable upon the death of Mary Cator, the mother, under the will of John Cator, and of the other sum of 10007., he should pay the same in trust to pay the rents, interest, dividends and produce, to Joseph Sparkes for life; and after his decease, in case his wife should survive, and there should be any issue living at his death, as to 2000l. part of the said 40007. in trust for Mary his intended wife, her executors, &c.; and as to 2000l. residue thereof, to pay the said Mary all the rents, interest, dividends and produce, for her life; and after their several deceases in trust for the only child, and if more than one, for all and every the children living at the decease of the survivor of the husband and wife, to be equally divided; and in case the wife should survive, and there should be no issue, or all should die in her life under twenty-one, and without issue, in trust to assign the whole 4000l. to the wife, her executors, &c. and as to the two sums of 1000l. each upon trust to pay the

(a) See ante, p. 516, notes (a) and (c) to Hinchcliffe v. Hinchcliffe; and note (a) to Richardson v. Elphinstone, 2 V. 463.