by second instrument substitutional. Where legacies five weeks after the birth of Lady Catherine, the late Duke had informed her he had made a provision of 10,000l. for her. Other evidence was adduced in proof of the testator's intention, in opposition to the claim of the double legacy. There were two questions, first, whether Lady Catherine was entitled to two legacies of 10,000l., or to one only. Lord Alvanley, M. R., said, that he had satisfied himself that upon the true construction of the will and codicil, and the circumstances under which they were made, there was no necessity to resort to evidence, to support the construction of the executor; being of opinion, that the legacy, according to the true construction of the will and codicil, was not to be held accumulative, but 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 that opinion, it was for him to say little upon the evidence, which he should have found great difficulty in admitting. His Lordship, in a subsequent part of his judgment, gave his reasons for considering the internal evidence of the instrument and the circumstances conclusive against the duplication of the legacy, and concluded by citing the case of Heathcote v. Heathcote, as in point. Next in order to the case of Currie v. Pye, before stated (ƒ), is the case of Attorney General v. Harley (g). The testatrix, Ann Newton, executed three testamentary papers, by the last of which she gave legacies to the same persons as were objects of her bounty in the first paper, and in most instances to the same amount, and under similar qualifications. In the first was the following bequest: "To Martha Harley (whom the testatrix appointed executrix) for attending during her life and seeing all these directions executed during her life; and by her last will and testament ordering the same to be done by her executors, 1,0007." In the third testamentary paper were these words; "To Martha Harley, tax deducted out of my property, 1,000l. and by this paper the testatrix appointed Martha Harley executrix." The cause came on upon exceptions to the Master's report, who had reported Martha Harley and other legatees entitled to double portions. Eight exceptions were taken. The other exceptions were decided upon the same ground as the first exception, which was, that the Master ought to have certified, that according to the true construction of the will, the latter only of the legacies to Martha Harley was payable. In support of the (g) 4 Mad. 263. (f) Supra, p. 1001; 17 Ves. 462. strument sub exceptions, the cases below (h) were cited. Sir John Leach, V. C., Where legacies delivered the following opinion: "If the legacies to Mrs. Harley by second inwere alone to be considered, she would be plainly entitled to stitutional. both; but the question here, is, whether the third instrument does not afford internal evidence, that it was meant by the testatrix, not as an addition to the first instrument, but as a substitution for it. It begins with all the forms of the first instrument, with the same expressions of religious resignation, nearly in the same words; it then proceeds to appoint Martha Harley her sole executrix, by the same description as in the first instrument; and it then proceeds to give, with little variation, the same legacies, to the same persons, who were the objects of her bounty by the first instrument. I think the inference irresistible, that the testatrix intended the third instrument as a substitution for the first, and that, therefore, Mrs. Harley must take the unconditional legacy of 1,000 given by the third instrument, in the place of the conditional legacy given by the first." The exception was allowed. To the preceding class, the cases cited in the note (i) may be added. SECT. V. On the admissibility of parol evidence to rebut the presumption in favour of the accumulative legafécs. We proceed, in the last place, to inquire, how far parol evidence is admissible, to rebut the presumption in favour of the second legacy being accumulative; and it seems now settled, that it is not admissible. How far parol missible to rebut presump evidence ad tions for or against double In the case of Osborne v. The Duke of Leeds (k), the question legacies. was fully argued; but Lord Alvanley avoided giving a decision, as the case did not require it. He, however, in the course of his judgment, said, that he should have had great difficulty in admitting it. His Lordship is reported to have expressed himself in the following words: It does appear most clearly, if the report (h) Garth v. Meyrick, Ridges v. Morrison, Hooley v. Hatton, Coote v. Boyd, and Benyon v. Benyon, supra. (i) Gillespie v. Alexander, 2 Sim. & Stu. 145; Hemming v. Gurrey, Ib. 311; 1 Dow. N. S. 35; 1 Bligh, N. S. 479; Fraser v. Byng, 1 Rus. & M. 90, and Mad. & Geld. 303, in notis ; Graves v. Hicks, 6 Sim. 391; Robley v. Robley, 2 Beav. 95; Kidd v. North, (k) 5 Ves. 369, 380, supra, p. evidence ad. missible to rebut presumption for or against double legacies. How far parol is right, that Lord Thurlow, in Coote v. Boyd (1), thought it admissible on either side (m). His Lordship did admit it upon that side, upon which, if this plaintiff is right, it was not necessary; for it is contended, that it is an established rule, taken from the Spiritual Court, that two legacies are accumulative, if given by two instruments. If that is a rule, I admit, I cannot to think raise a presumption by evidence against it; and I am inclined it must be taken to be a rule. But in Hooley v. Hatton (n), 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. Semmens (o), it seems from one passage in the report, as if the Court doubted, whether parol evidence would not have been admissible." The question came before Sir John Leach, V. C., and called for a decision in Hurst v. Beach, before stated (p). It was the subject of the second question in the cause, viz. How far parol evidence was admissible to prove, that the testatrix meant the legacy of 5001. given by the codicil to John Beach, as a substitution of that of 3007. given by the will: a case was ordered by the Vice Chancellor to be sent for the opinion of two civilians; and he observed, "If the case is not determined by decision in the Ecclesiastical Court, I must determine it by the principles of this." A case was accordingly sent to Dr. Swabey and Dr. Lushington; in answer to which, they stated, they were not aware that the point had ever received any decision in their Courts, nor indeed been the subject of discussion. Upon the questions thus submitted, and the opinions being read, his Honor, after disposing of the first question in the words before given (q), further expressed his opinion thus: "Upon (1) Supra, p. 1019. (m) Also in Ridges v. Morrison, supra, p. 1006. (n) Supra, p. 1003. (0) 2 H. Bl. 213. (p) Supra, p. 1007; 5 Mad. 351; see Hall v. Hill, 1 Dru. & W. 94; Lee v. Pain, 4 Hare, 201, 216. (9) Supra, p. 1007. evidence ad or the question, whether evidence is admissible to prove that the How far parol testatrix did not mean that the defendant should take both sums, missible to rethere are no decisions in the Courts of Equity. There are but presumpobiter dicta for the admission of such testimony; but in The infor against double Duke of Leeds v. Osborne, the point was fully argued, and Lord legacies. Alvanley appears to have inclined against receiving it. It did not, however, become necessary there to decide the question. It is to be collected from the Digest, that it was admitted by the Civil law. This Court has no original jurisdiction in testamentary matters; it acts with respect to them only upon the ground of administering a trust; and is bound to adopt in questions of legacy the principles and rules of the Ecclesiastical Court. I found it necessary, therefore, to direct inquiry to be made in that Court upon this point, and the answer that I have received is, that no decision has taken place there upon this question, and that no settled opinion is formed upon it. It remains then to be considered upon the principles of evidence, which are received in our own law. Our primary principle is, that evidence is not admissible to contradict a written instrument. In some cases Courts of Equity raise a presumption against the apparent intention of a testamentary instrument, and there they will receive evidence to repel the presumption: for the effect of such testimony is not to show that the testator did not mean what he has said, but on the contrary, to prove that he did mean what he has expressed. Thus, where the Court raises the presumption against the intention of a double gift, by reason that the sums and the motive are the same in both instruments, it will receive evidence that the testator actually intended the double gift he has expressed. In like manner evidence is received to repel the presumption raised against an executor's title to the residue, from the circumstance of a legacy given to him, and to repel the presumption that a portion is satisfied by a legacy. In all these cases the evidence is received in support of the apparent effect of the instrument, and not against it. Here the evidence tendered is not in support of the apparent effect of the instrument, but directly against it. This codicil leaves unrevoked the former legacy of 300l. to the defendant, and makes to him a further substantive gift of 500l. The evidence tendered is, that the testatrix did not mean this as a further gift of 500l. but meant to substitute the 5002. in the place of the former 300l. I am of opinion, therefore, that such evidence cannot be received without breaking in upon the primary rule, that parol evidence is not admissible against the expressed effect of a written instrument." How far parol evidence admissible to re In Martin v. Drinkwater (r), a case of substitutional legacy, Lord Langdale, M. R., has stated the rule upon the admissibility of parol evidence. "I consider the rule as settled; you are at against double liberty to prove the circumstances of the testator, so far as to but presumption for or legacies. enable the Court to place itself in the situation of the testator at the time of making his will, but you are not at liberty to prove either his motives or intentions.” CHAPTER XVII. Of the satisfaction and release of Debts by Legacies. WHERE a person indebted bequeaths to his creditor a legacy equal to or exceeding the amount of the debt, which is not noticed in the will, the Courts of Equity, in the absence of any intimation of a contrary intention, have adopted the rule, that the testator shall be presumed to have meant the legacy as a satisfaction of the debt. This rule, however, though long well established, has frequently been disapproved, upon the ground that a satisfactory reason cannot be assigned, why the testator should not have intended a benefit to his creditor beyond the amount of his debt, in those cases where there has not been a deficiency of assets. Consequently, a strong disposition in the Court has been repeatedly evinced to form exceptions, where the nature of the gift, or other circumstances attending it, have furnished grounds for inferring an intention on the part of the testator, contrary to that assumed by the rule. But where, on the other hand, a creditor bequeaths a legacy to his debtor, and either does not notice the debt, or mentions it in such a manner as to leave his intention doubtful, and after his death the securities are found uncancelled among the testator's effects, the Courts of Equity do not consider such legacy as necessarily, or even primâ facie, a release or extinguishment of the debt; but requires evidence clearly expressive of the intention to release the debt and if such intention do not appear clearly expressed or implied on the face of the will, evidence from other sources will be admitted to prove the release of the debt. The subject of these preliminary observations will be discussed in the present chapter, under the following heads: (r) 2 Beav. 215. |