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seven in all). In 1779, he took his son into partnership with him, and, by the deed of partnership, the stock was to be £3,000, to be brought in equally, and they were to be equally entitled to the profits. The father brought in the whole capital, and it was understood, by the whole family, that he meant to give the son the half of the stock. The children who were of age, by their answer, admitted this ; and there was parol evidence of declarations of the testator, at different times, that he meant to bring his son into partnership, and to give him half the stock, and even the whole; and that he told one witness, that he had brought his son in, and had given him £1,500. The question made in the cause was, whether this advancement was a satisfaction of the legacy of £500, and it was held not to be a satisfaction, not being ejusdem generis; and that it must have been the testator's intention that the plaintiff should have both. LORD COMMISSIONER HOTham relied on an argument for the plaintiff, that if the legacy had been a moiety of the stock, and afterwards £500 had been given, it could not have been a satisfaction."
1 Dugan v. Hollins, 4 Md. Ch. 139 (1853), accord. On a gift subsequent to a legacy and on different conditions, see Spinks v. Robins, 3 Atk. 491 (1742).
“It is settled that in the case of double provisions by a father for a child, slight circumstances of difference are not to be regarded : at least where the question is not whether a bounty is meant to satisfy a debt; but whether one bounty is to be substituted in the place of another.” — Per Sir WILLIAM GRANT, M. R., in Hartopp v. Hartnpp, 17 Ves. 184, 191 (1810).
“It was pressed upon me by the counsel for the plaintiff, that the variance in the provision by the settlement and the will distinguished this case ; that is a circumstance, which may avail to prove it not to be in satisfaction of a debt, or covenant, but never of a legacy given as a provision; this distinction was taken by Lord Hardwicke in the case of Clarke v. Sewell, 3 Atk. 98, and in Trimmer v. Bayne, 7 Ves. 508, this doctrine is recognized by Lord Eldon ; wherein he states the question to be, 'whether the limitations being different, it was an ademption,' and lays down this rule: that where a parent or person in loco parentis gives a legacy, as a portion, and afterwards upon marriage, or any other occasion calling for it, advances in the nature of a portion to that child, that will amount to an ademption of the gift by will, and this court will presume he meant to satisfy the one by the other. It differs from the performance, or satisfaction of a covenant in this; that the court overlooks small differences in the circumstance of that, which is purposed to be given, and that, in satisfaction of which, it is contended to be given." - Per LORD MANNERS, C., in Monck v. Monck, 1 Ball & B. 298, 303, 304 (1810).
See also Booker v. Allen, 2 Russ. & M. 270 (1831); Durham v. Wharton, 3 Cl. & F. 146 (1835).
Cf. Twining v. Powell, 2 Coll. 262 (1845).
sunich £5,000 uestion is, it is an ad
POWEL v. CLEAVER.
[Reported 2 Bro. C. C. 499.) LORD CHANCELLOR (THURLOW]. My opinion will require only a few words.
Mr. Powel, by his will in 1775, gave to Harriot Charlotte Stables a legacy of £6,000, this legacy was not mentioned as being a portion. Afterwards on her marriage £5,000 in the funds, stated in the settlement to be her portion, were advanced. It is in evidence that it was advanced by Powel. It is stated in the settlement to be her portion. He also conveyed an annuity to her use: there are entries in the books of Powel, by wbich it appears that he had made a calculation of the sums advanced as a portion. In 1783, he made a codicil to his will, by which £5,000 were given to a niece unborn at the time of making the will. The question is, whether the advancement of £5,000 on the marriage of the defendant is an ademption in toto or in part of the legacy. A legacy prima facie is presumed to be a bounty to the legatee, and must stand as such donec probetur in contrarium. The word portion, although applied in the case of a parent, shall not be so applied to the gifts of other relations or friends; it has been determined not to extend to a grandfather. Whatever foundation there might be for the original application of the rule, that the advancement of a parent shall not be a further gift, it is not now to be disputed : but it is obvious the intent of the testator is as often disappointed as served by it. Those cases stand on their own ground; this case is an attempt to make a friend's legacy satisfied by a subsequent advancement. There are cases where a man may describe himself so, that the gift by the will, and that in his lifetime, may be intended for the same purpose, but it must appear that he meant to put himself in loco parentis ; for there are no cases where it has been so held, if the second gift appeared to be diverso intuitu. I have gone through all the cases, and it appears to be the result of them, that where a stranger gives a legacy by will, and afterwards gives a sum without any evidence that it is intended for the same purpose, it is not taken as a satisfaction : to make it so, it must appear, at the time of the gift, to be meant as an ademption of the legacy:2
Mr. Scott, Mr. Hargrave, and Mr. Mitford, for the plaintiffs.
Mr. Solicitor-General (Macdonald and Mr. Ambler, for the defendants.
1 Only the opinion on the question of ademption is here given.
2 As to when the testator is in loco parentis, see Grave v. Salisbury, 1 Bro. C. C. 425 (1784); Monck v. Monck, 1 Ball & B. 298 (1810); Ex parte Pye, 18 Ves. 140 (1811); Booker v. Allen, 2 Russ. & M. 270 (1831); Powys v Mansfield, 3 Myl. & Cr. 359 (1837).
PYM V. LOCKYER.
[Reported 5 Myl. f. Cr. 29.] This was an appeal from so much of a decretal order made by the Vice-Chancellor in this cause as declared that the provisions made by the testator in the cause, on the marriages of the defendants, Frederick Pym, Edmund Lockyer Pym, and Eleanor Penrose Drake (formerly Pym), respectively, were not ademptions or satisfactions of the respective legacies of £5,000, £5,000, and £6,000, by the testator's will bequeathed for the respective benefits of them and their children; and against the directions given by His Honor, consequential upon this declaration.
The testator was the grandfather of these defendants, and their mar. riages took place in their father's lifetime.
The provisions made upon the respective marriages were as follows: Upon the marriage of Frederick Pym, to whom a legacy of £5,000 had been given, by the will, for life, with remainder to his children, a sum of £2,000 3 per cent reduced stock was invested in the names of trustees, upon trust for himself and his intended wife, for their successive lives, and afterwards for their children, and, in default of children, for himself absolutely. Upon the marriage of Edmund Lockyer Pym, to whom a legacy of £5,000 had also been given, by the will, for life, with remainder to his children, the testator made a settlement of certain lands upon him and his children, and executed a bond for £3,000, of which trusts were declared similar to those of the lands; and upon the marriage of Mrs. Drake (Eleanor Penrose Pym), to whom a legacy of £6,000 had been bequeathed by the will for life, with remainder to her children, the testator, by letters, engaged to invest £4,000 in the public funds, upon trust, after his own death, for the intended wife and her husband, successively, with remainder to her children, and also engaged to pay, during his own life, £150 per annum for the first three years, and £100 per annum afterwards.
[LORD CHANCELLOR COTTENHAM held that the testator had put himself in loco parentis, but suggested a question whether the legacies were adeemed in whole or pro tanto. The question thus suggested was argued before him at a subsequent day.]
Mr. Bethell, Mr. Loftus Lowndes, and Mr. Chandless, for Frederick Pym and the children of Edmund Pym.
Mr. Richards, for Mrs. Drake.
Mr. Wigram and Mr. G. L. Russell, for the unadvanced grandchildren.
The LORD CHANCELLOR. When, upon the first argument of this case, I had come to the conclusion that the testator bad placed himself
being that a portion
advanced ber a father tous
in loco parentis, and that the effect of the portions upon the provisions by the will was, tterefore, to be the same as if the testator had been the father of the children, I was startled at the consequences of such a decision, if the rule generally received in the profession, and laid down in all the text-books of authority, and apparently founded upon the highest authority, was to regulate the division of the property ; the rule to which I refer being, that a portion " advanced by a father to a child will be a complete ademption of a legacy, though less than the testamentary portion.” I could not but feel that, in the case before me, and in every other, the effect of the rule would be to defeat the intention of the parent. A father, who makes his will, dividing bis property amongst his children, must be supposed to have decided what, under the then existing circumstances, ought to be the portion of each child, not with reference to the wants of each, but attributing to each the share of the whole which, with reference to the wants of all, each ought to possess. If, subsequently, upon the marriage of any one of them, it becomes necessary or expedient to advance a portion for such child, what reason is there for assuming that the apportionment between all ought therefore to be disturbed ? The advancement must naturally be supposed to be of the particular child's portion ; and so the rule assumes, as it precludes the child advanced from claiming the sum given by the will as well as the sum advanced.
So far the rule is founded on good sense, and adapted to the ordinary transactions of mankind. The supplying the wants of one child for an advancement is not permitted to lessen or destroy the provisions made for the others, by giving both provisions to the child advanced ; but the supposed rule that the larger legacy is to be adeemed by the smaller provision, appears to me not to be founded on good sense, and not to be adapted to the ordinary transactions of mankind, and to be subversive of the obvious intention of the parent. Can it be assumed, as a proposition so general as to be the foundation of a rule of property, in the absence of any expressed intention, that the marriage of one child and the advancing a portion to such child, furnishes ground for the father's altering the mode of distributing his property amongst his children, by taking from the portion previously destined for that child, and, to the same extent, adding to the provision for the others ? Is it not, on the contrary, the usual course and practice that the father, upon a child's marriage, parts with the control over as little as possible, preferring to reserve to himself the power of disposing of the residue of the portion destined for such child, as its future circumstances and situation may require? In doing so, the father is not influenced only by the natural preference of bounty to obligation, but adopts a course which he may well be supposed to think most beneficial for his children. Where, then, is the ground of the presumption, that he intended, by advancing part of what he had destined as the portion of that child, to deprive that child of the remainder?
The argument in favor of the proposition appears to me to be
ortion givene portion settieste considered
founded upon technical reasoning as to the term “portion,” without due consideration of the sense in which that term is used. The giving a portion to a child is said to be a moral debt, but of the amount of which the parent is the only judge; and although the parent has, by his will, adjudged the amount of that moral debt to be a certain sum, he is supposed, by the settlement, to have departed from that judgment, and to have substituted the amount settled ; and this only because the one provision and the other are considered as a portion. This, however, assumes the portion settled to be intended as a substitution of the portion given by the will; and such intention, if proved, would remove all doubt; but the question is, whether such intention is to be presumed, in the absence of all proof. Is it not more reasonable to suppose that the intention as to the amount of the portion remains the same, and that the sum settled is only an advance of part of what the will declares to have been the intended amount of the whole ? There is no reason for supposing the sum advanced to be the whole portion intended for the child ; and if so, there can be no reason for assuming it to be substituted for the whole. The effect of a portion advanced by a parent upon a legacy before given is called an ademption; but if the principle of ademption be applied to this case, the consequence now under consideration will not follow. The gift or alienation of part of what constitutes a specific legacy will not destroy the legacy as to what remains. So, the adınitted exceptions to this general rule do not seem very consistent with the existence of that part of it now under consideration. The rule is said not to apply, when the testamentary portion and the subsequent advancement are not ejusdem generis. This may be very reasonable, as indicative of intention, but it is not easy to discover why, if one thousand pounds advanced is to be an ademption of a ten thousand pounds legacy, a gift of stock in trade of the value of £1,500 is not to be an ademption of a legacy of £500, which, in Holmes v. Holmes, 1 Bro. C. C. 555, it was held not to be. So, a testamentary gift of a residue, or part of a residue, is said not to be adeemed by a subsequent advancement, because the amount is uncertain ; but, in that case, the child, if sole residuary legatee, takes, as advancement, part of what it would, if no such advancement had been made, have taken as residue. The gift under the will operates, though diminished by the amount of the advancement. The Statute of Distributions, the customs of London and York, and the whole doctrine of hotchpot, proceed upon the principle that advancement by a parent does not operate as substitution for, but as part satisfaction of, what the child would otherwise be entitled to; the object being to produce equality, and not, according to the rule contended for, inequality, between the children.
It appears to me, therefore, that all reasoning and all analogy are against the supposed rule. It remains to be examined, whether the authorities are such as to make it my duty to act upon it; and I cannot but express the satisfaction I have felt at having had the cases so