A TREATISE ON WILLS AND CODICILS. CHAP. I. PRESUMPTIONS AND PAROL EVIDENCE. SECT. I. Double Portions. THE rule prevailing in courts both of law and equity, that external evidence may be received to REBUT PRESUMPTIONS, Submits the operation of written instruments, more extensively than any principle hitherto noticed, to the controul of extrinsic circumstances. In Courts of Equity, more especially, this allowance has prevailed. The genius of the common law inclines it to generality and certainty, and even its presumptions are in some cases too inflexible to be disproved. But equity, as its rules are framed more for particular than general relief, allows all its presumptions to be repelled by opposite testimony, and by testimony of every kind. VOL. II. Of the presumption against double portions. Thus it is a settled rule of presumption in equity, (borrowed from the civil law) that if a father gives a legacy to a child, and afterwards advances the like sum to the same child, such advancement operates as an ademption of the legacy. This presumption was opposed in Ellison v. Cookson, by extrinsic evidence, consisting of declarations and correspondence, which were admitted on the above doctrine of receiving parol evidence against presumptions; though, as, in the opinion of the court, the evidence when received did not with sufficient clearness demonstrate any intention of the testator opposed to the presumption, the presumption prevailed. In Debeze v. Mann, (which, indeed, was the case of a father and putative child, but the legacy being expressed to be for a portion it came up to the principle upon which the presumption is founded in the case of a general legacy by a lawful parent) (1) the presumption was repelled by parol evidence of words used in conversation, clearly importing a design to better the child beyond the extent of the advancement, and because there was no way of carrying into effect such design, but by construing the legacy to be un adeemed. The doctrine of the Court of Chancery seems to be this; that where a parent gives a legacy to a child, without stating any purpose for which it is given, it (1) The cases of a natural child, vide Graye v. Lord Salisbury, 1 Bro. C. R. 425. and of uncle and niece, vide Shudall v. Jekyll, 2 Atk. 516. are said to be out of the rule. is nevertheless to be understood as a portion, and therefore on the principle of leaning against double portions, if the father afterwards advances a portion on the marriage of that child, it is an ademption of the legacy by a constructive satisfaction of it in the whole or in part. But if a stranger gives a legacy to a child, not describing it as a portion, and afterwards makes such advancement by way of marriage portion, such subsequent advancement will not be construed an ademption or satisfaction of the legacy. In the case of a stranger either the legacy must be described as a portion, or the advancement must be expressly stated, or distinctly appear, to have been made for the very purpose of satisfying the legacy. In such a case, although the advancement is expressly made by way of marriage portion, still if the legacy is not expressly given for the same purpose, such advancement will not operate as an ademption. It follows, therefore, that as the law does not recognize the relation of the putative father and legitimate child, the father stands as a stranger; and thus the case of an illegitimate child has in this respect an advantage over one legitimately born; since if a legacy, be given to him by his putative father, such legacy will not be covered by any subsequent advancement unless it appears positively that such advancement was intended to be a satisfaction of the legacy. A legacy from a father is understood as a portion, though not so described; what he gives thus to his child is presumed to be meant by way of provision, as paying a debt of love and natural affection; if, therefore, he afterwards advances him by a provision in his lifetime such provision is considered as given in the same spirit and feeling, and as paying the same debt of na |