EVANS. [392] that they have not made out their covenant to be a special charge BERRINGTON on the realty. It does not appear to me that the covenant entered into by Sir Watkin Lewes was any thing more than a personal undertaking; but even if it were, the case of Williams v. Lucas (1) shows that the words of it are too general to create a specific lien upon his lands. For these reasons, the claims of the covenant creditors must also be postponed to those of the judgment creditors. Order accordingly. DAVYS v. BOUCHER (2). (3 Y. & C. 397-412.) Where a parent, or person in loco parentis, gives a legacy to a child by way of portion, and afterwards makes advances in nature of a portion to that child, that will amount to an ademption of the gift by will, and a court of equity will presume he meant to satisfy the one by the other. But, as a general rule, this doctrine applies only to legacies, and not to a devise of real estate. [THE facts of this case are sufficiently stated in the judgment for the purpose of this report, which is only retained here as raising the question whether the rule against double portions may operate to adeem a devise of real estate.-O. A. S.] ALDERSON, B.: This was a bill filed by Thomas Davys praying a declaration by the Court, that certain provisions made by his father Thomas Davys, on the occasions of the respective marriages of Mary and Betsy his daughters, were an ademption of the benefits given to them by his will. The facts are shortly these: By his will dated the 17th of July, 1829, the testator, after giving legacies of 100l. each to his daughters Mary and Betsy, then devised his freehold estate at Raddington in the county of Somerset, to his wife for life, if she should so long continue his widow, and after her death or second (1) 1 P. Wms. 430, n. (2) The doctrine of ademption of legacy portions has been extended in later cases to bequests of residue: see Meinertzagen v. Walters (1872) L. R. 7 Ch. 670, 41 L. J. Ch. 801, 27 L. T. 326; and to gifts inter vivos of specific property (e.g. a share in the testator's partnership business) comprised in a previous bequest of residue: In re Lawes (1881) 20 Ch. D. 81, 45 L. T. 1839. Feb. 15. June 24. [397] June 24. [ 409 ] DAVYS c. BOUCHER. [ *410 ] [ *411 ] marriage then to his son in fee, subject and charged with a clear annuity of 50l. to Mary his daughter, her heirs and assigns for ever, and with a similar annuity to Betsy: and the will afterwards provided, that in case either of his daughters should die before the annuities became payable, without leaving lawful *issue, one half of such annuity should go to the surviving daughter, her heirs and assigns for ever, and the remaining half should no longer be a charge on the estate devised to her. Then follows a devise of all the residue of his estate to his widow and executrix for her absolute use. Subsequently to his will, the testator purchased other estates called Petton and Petton Balls, and on the 14th of April, 1831, he, by a codicil to his will, devised those estates in fee to his two daughters as tenants in common. This was the state of circumstances at the time of the marriage of Mary Davys on the 10th of April, 1832, with the defendant Charles Boucher, and on that occasion, the testator executed a bond for 1,400l., with interest on 1,000l. payable immediately, and with interest on the rest, 400l., payable from his death as a portion to his daughter. It is contended that this provision was an ademption of the benefits contained in his will. Subsequently, on the marriage of Betsy Davys with the defendant Robert Williams, at the end of the year 1832, a settlement was made by the testator of the estates of Petton and Petton Balls upon her and the issue of that marriage, and a sum of money was also advanced by him amounting to about 400l. altogether. And this advance, it is contended, adeems the provision made by the will for Betsy Davys. The principles on which these questions turn may be shortly stated. Where a parent, or person in loco parentis, gives a legacy to a child by way of portion, and afterwards, upon marriage or any other occasion calling for it, makes advances in the nature of a portion to that child, that will amount to an ademption of the gift by will, and a court of equity will presume he meant to satisfy the one by the other. Now, I think it may also be taken that the legacy of a portion means a legacy of a definite sum, that being, as Lord RossLYN expresses it in Freemantle v. *Banks (1), its meaning ex vi termini. Hence the bequest of a residue does not fall within the rule. Further, in order that there may be an ademption, it is required that the provisions should be ejusdem generis. Thus, in (1) 5 Ves. 79, 85; but see note at the commencement of this case.-O. A. S. Holmes v. Holmes (1), a bequest of 500l. was not adeemed by an advancement by a gift of one half of a stock of jewellery made on the occasion of the parent subsequently taking his son into partnership. Subject, however, to those restrictions, I think it may be stated that mere difference of amount, and that slight circumstances of difference in the times of payment and the like between the portion given by will and the advancement subsequently made will not prevent the presumption that one is an ademption of the other. But, as far as my researches have extended, I do not find any instance of this principle having been extended to devises of real estate, and I think so to extend it would be to repeal that provision of the Statute of Frauds which applies to the revocation of wills of real estate. Brown v. Peck (2), which alone was cited for that purpose, certainly does not prove it. That case went off on a collateral ground altogether, and the only argument which it could be considered to afford is, that this difficulty was not suggested in argument, the case not requiring it, in order to produce the decision; a very slight argument certainly to found so important a position upon. Now, if we apply these principles to the present case, it will be found that the annuities given by the will are not ejusdem generis with the provisions made upon the marriages of the two daughters. The advancement of one is by an advance of money by bond-of the other by a settlement of land and advance of money. The gift by will is an annuity as to each daughter, not certain but contingent as to amount, depending upon the event of survivorship *between the sisters, and of one of them dying without issue before the death of their mother, and not to be payable, at all events, until after the death or second marriage of their mother, a totally uncertain period of time. Upon this ground I should, therefore, be of opinion that the presumption did not arise. But if it did, I think the parol evidence in the case shows also that at the time of making both advances. the testator intended them to be in addition to the provisions of his will. This is abundantly clear as to Mr. and Mrs. Boucher; and though the evidence on the part of Robert Williams and his son is not in this respect so strong, yet their case is much justified by the evidence on the part of the plaintiff as to the equal provision (1) 1 R. R. 2 (1 Cox, 39); a doubtful (2) 1 Eden, 140. exception. DAVYS ቀ. BOUCHER. [ *412 ] DAVYS c. BOUCHER. which the testator is stated to have expressed his intention to make [An objection as to the reception of evidence from an interested witness was then considered by the Judge.] 1839. June 15. [ 530 ] COSTEKER v. HORROX. (3 Y. & C. 530–540; S. C. 3 Jur. 996.) A testator's executors were empowered by his will to employ a certain amount of his assets in a business carried on by them upon giving security to a trustee nominated for that purpose by the will, similar to a security taken from them by the testator in his lifetime in respect of other capital belonging to him and employed by them in the same business. The executors employed the further assets accordingly, but without giving further security, alleging that the former security was more than sufficient to cover the testator's capital as well as the further assets employed. Held, that such employment was not sanctioned by the will, and that the amount of the assets thus applied must be paid into Court. IN June, 1832, Squire Horrox, of Pilkington, in the county of Lancaster, calico-printer, took into partnership with him his sons and son-in-law, James Horrox, Richard Horrox, and John Anderton. The value of the assets in Squire Horrox's business then amounted to about 14,000l., of which he gave up 2,000l. to James Horrox, as his share of the partnership capital. No partnership articles were executed, but it was agreed that the partnership should be carried on as from the 1st of June, 1832; and that the parties should be interested in the profit and loss in the following shares; namely, Squire Horrox in three-sixths, and the other three in one-sixth each. In the early part of 1832, Squire Horrox, being advanced in years, gave notice of his intention to retire from the partnership; and on the 20th of March, in that year, the partnership was dissolved as to him, and due notice of such dissolution was given in the Gazette. His capital, however remained, and was employed in the partnership concern. In September, 1832, Squire Horrox, being about to make his will, applied to his sons and Anderton to give him some security for the amount of his capital. Accordingly, they executed to Squire Horrox, and to the defendant Samuel Woodcock, as his trustee, a warrant of attorney, dated the 7th of September, 1832, authorizing the attornies therein named, to confess judgment COSTEKER against them for 12,500l. Squire Horrox, by his will, dated the 20th of May, 1833, after giving an annuity of 300l. to his wife, and after ratifying the gift of the 2,000l. to James Horrox, and after bequeathing to James Horrox his one-fourth part or share of the lease of the printing establishment and premises at Mount Sion, ordered and directed, that, within three calendar months after his decease, his sons and John Anderton should take a full, true, and perfect account of all and singular his personal estate and effects, and that a valuation should be put upon such chattels and effects by themselves; and also, that they should take an account of all sums of money that might be then due and owing to him the said testator, whether on security or securities, or book or other debts, and that they should bring the whole of such his personal estate and effects into a stock balance-sheet. And the testator directed and declared, that in such account should be included the money which he had laid out and expended in and about the erections, buildings, and improvements at or connected with the establishment at Mount Sion, not including his beneficial interest in the lease of the same premises which was therein before bequeathed to his son James Horrox; and the testator authorized his said sons and John Anderton to employ the same in carrying on the calico-printing and bleaching business, which the said testator thereby empowered them to continue, and to occupy such works on the terms and conditions. on which the said testator held the same, on giving a warrant of attorney to confess judgment, or such other security as would be satisfactory to his wife and Samuel Woodcock for the whole amount of such stock and balance-sheet, payable in ten years, by equal half-yearly instalments in each year, the first instalment to become due and be paid in six months after the testator's decease, with lawful interest thereon, after the rate of 5l. per cent. per annum until the whole thereof should be paid, such interest to be paid with every half-yearly instalment. And the testator directed that such security should be given by his said sons and son-in-law to the testator's said wife and Samuel Woodcock jointly, or to Samuel Woodcock solely, if his said wife should then be dead. And the testator thereby nominated and appointed the said Samuel Woodcock a trustee specially for that purpose. The testator then, after reciting, that he had lately put his said sons and son-in-law in the possession of goods, chattels, and effects to the amount of 26 R.R.-VOL. LI. v. HORROX. [ 531 ] [ *532 ] |