be enjoyed by her during the term of her natural life, but in the event of her death or her again marrying, the whole yearly interest to be laid out, or such part as may be necessary, for the education of my lawful children, and the principal, with the interest that may remain thereon, if any, to be divided amongst them in equal shares, the several shares to be paid them on their respectively attaining the age of twenty-one years."

The rest of this instrument, which contained no further bequests, had reference principally to the nature and particulars of the testator's property; and it gave directions to certain of his friends in India, whom he requested to undertake the management of his affairs, as to the mode in which his outstanding effects were to be collected and applied. It also appointed guardians for his lawful children, and spoke of what he had done by his former will, and of "these clauses added to his last will and testament." There was no new nomination of executors.

The testator died in 1812, and probate of the two testamentary papers as a will and codicil was granted by the Ecclesiastical Court to G. P. Fraser, one of

the executors.

Sometime afterwards, a bill was filed for the purpose of having the accounts taken, and the necessary funds [93] raised and set apart for the payment of the different legatees. By the decree in the cause, bearing date the 2d of May 1818, and pronounced by Sir John Leach, then Vice-Chancellor, it was (among other things) declared that the legacy given by the codicil to the Appellant, John Byng. (the natural son of the testator), was a revocation of the legacy of £1000 given to him by the will, and was not accumulative. At the date of the decree, John Byng was an infant, and when he came of age, several years after, the order he obtained for payment of the sum which had been appropriated to answer his legacy of £1000 was made without prejudice to any proceedings he might be advised to take with a view to get the decree varied. And he now appealed against so much of the decree as declared the second to be a revocation of the first legacy, and not an addition to it.

Mr. Horne and Mr. Phillimore, for the Appellant. The general rule is, that, when a legacy is given by a will, and another is afterwards given by a codicil, to the same person, the testator is held to have intended that the legatee should take both, unless strong circumstances appear on the face of the instruments themselves, raising an opposite presumption. Here, however, there is nothing of the kind; on the contrary, the probabilities, as far as they can be collected, point directly the other way. This second instrument is no more than a codicil, or as the testator himself styles it, clauses added to his last will and testament," and it is clear from its tenour, that it was written while the first was lying before him, or at least was fully present to his mind. He commences it by anxiously explaining his wishes (which he was afraid might be misunderstood), with respect to the sum he had already bequeathed to his daughter, and then having that prior bequest, and [94] no doubt also the bequest which he had made to the Appellant his son, in his recollection, he proceeds in these terms:-"I also bequeath to my natural son, John, the sum of £1000 sterling, to be paid to him on his. attaining the age of twenty-one years." Nothing can be more distinct or explicit. The testator knew that he had by his will bequeathed £2000 to his daughter: by the codicil, he gives directions to his executors with regard to the funds to be applied in payment of that sum, expressly referring to it as the identical sum given by his will. He knew, too, that he had bequeathed £1000 to his son. But in the codicil he makes no reference whatever to that legacy, and goes on to use words of bequest to him, which can import only a new, substantive, and independent gift. What can be the reason of this marked diversity? Simply, that the testator's object was different in the two cases. He intended merely to regulate the property which the daughter was to take, but he wished to make a reasonable addition to the fortune which he had bestowed upon his son. Two thousand pounds he probably considered an ample provision for a girl living under the care of her paternal relatives; but half of that sum, he justly thought, was a scanty allowance for a boy who had to make his way in the world, and who would require almost the whole of it as an advancement to start him properly in life. He was therefore naturally desirous to put both children on an equal footing. an equal footing. His fortune had increased considerably in the interval between the date of the two instruments, as

appears from the latter, so that he could indulge his inclination without inconvenience; and he has accordingly effected his purpose in the codicil, by which he distinctly gives £1000 to his son, well aware all the while that he had previously given him a similar sum by the will. If he [95] had intended the subsequent as a substitution for the former legacy, he would certainly have said so; more especially as his attention was directly drawn to the circumstances in which the son stood, by the reference, in the immediately preceding sentence, to the provision he had made for the daughter, in whose case, as he meant to bestow no additional bounty, he took care to use language that imported none.

Each of the two instruments, taken separately, is defective. In order to collect from them the complete expression of the testator's mind, we must view them in connection, as forming one entire testamentary act, and they will then appear perfectly consistent and explicit. Reading them in that way, their effect may be thus rendered:"I give to my daughter £2000, absolutely;-on second thoughts, it had better be conditional only, and be paid, when due, out of such and such funds. Item, I give to my son £1000 absolutely :--I also bequeath to him £1000, to be paid at twenty-one, in the event of his attaining that age, otherwise to go over." Here we see the force of the word "also," which plainly shews the testator meant an addition.

It will be said that the sums given in the will and the codicil are the same in amount; but that circumstance, by itself, is not sufficient to raise a presumption that the one was intended in substitution for the other. Ridges v. Morrison (1 Bro. C. C., 389), and the cases there referred to. Baillie v. Butterfield (1 Cox, 392). If, however, such a presumption could for a moment be admitted, it would be effectually repelled by considering the very different character of the two legacies. The one is an absolute gift, vesting immediately, and [96] the principal of which was of course applicable, either wholly or in part, to the boy's advancement. The other is conditional only, to vest on his attaining twenty-one, and, in the event of his dying under that age, to go over to the lawful children of the testator. It is a fund which could not by possibility be broken in upon while the contingency lasted, not even for the necessary purpose of putting him out in trade, or instructing him in a profession. The two legacies, therefore, though nominally the same, are by no means equal in value; the latter being far less beneficial than the former, a circumstance which, in the case of M'Kenzie v. M'Kenzie (2 Russ., 262), Lord Eldon held to be quite conclusive in favour of accumulation. It is observable, too, that the codicil speaks of the surplus interest that might accumulate during the son's minority; and no doubt a surplus might remain beyond what was requisite for his support and education, if both the sums were to be taken: but it is not to be supposed that the testator could have contemplated the possibility of such a surplus, after satisfying those purposes out of the interest of £1000. According to the construction contended for on the other side, the Appellant was to have, during his minority, the interest of only one sum of £1000, and not a shilling of the principal could be touched, not even to ensure his success in life, unless he attained twenty-one. That never could be the object of a considerate parent. According to our construction, the Appellant would have the interest of £2000 to be employed towards his maintenance and education, and one half of that sum would be applicable at the discretion of his trustees, and under the sanction of the Court, to any advancement for his benefit, while the remainder would [97] be vested and payable as soon as he came of age, an arrangement at once natural and judicious. On the whole, unless this clause of bequest is to be read as a revocation, in contradiction to its express language, and in violation of every fair presumption of intention, the Appellant is entitled to both the legacies.

Mr. Kindersley, contrù. Where the legacies are given simpliciter, and there is nothing to assist conjecture, the general rule in favour of accumulation may perhaps be admitted; although where the legacies are equal in amount, even that has sometimes been denied. (1) But certainly the doctrine cannot be carried farther; for the presumption is extremely slight, and any intrinsic evidence, supplied by the testamentary instruments themselves, is sufficient to turn the scale, and throw, on the party claiming the double bequest, the burden of supporting his claim by parol testimony. The general rule, therefore, is subject to an important exception, fully established by authority, and bearing directly on the present question, viz., that, wherever the testamentary papers contain a series of bequests, comprising the same property and corresponding pretty nearly in number and value, to a numerous class of legatees,

there repetition and not accumulation shall be presumed. And this exception is founded in good sense; for though it is possible enough for a testator to mean an addition, when by a codicil he simply gives a sum to the same individual who was to take a similar sum by his will, it is far less likely that he should repeat a whole line of bequests to a variety of legatees, [98] without the least reference to what the first instrument had done for them, unless he intended the second to be substituted for the first.

That principle was the foundation of Lord Hardwicke's decision in the Duke of St. Albans v. Beauclerk (2 Atk., 636). In that case, legacies given by two distinct codicils to the same legatees, though they differed in amount, and though an annuity given by the one was not noticed in the other, were held to be substitutional. So in Coote v. Boyd (1 Bro. C. C., 448, and 2 Bro. C. C., 521), where the second codicil appeared with some slight variations to be a mere repetition of the first, though both were proved in the Ecclesiastical Court, and it was not pretended that the one was meant to be a revocation of the other, Lord Thurlow decided that the legacies were not doubled. In Attorney-General v. Harley (4 Madd., 263), there were two testamentary papers giving the same sum to the same individual, but with a material alteration in the terms and nature of the bequest, it being in the one absolute, in the other conditional, and yet that was held to make no difference, and only one legacy was allowed. Barclay v Wainwright (3 Ves., 462), Gillespie v. Alexander (2 S. & S., 145), was the case of a will and codicil, and was in other respects very analogous to the present. The codicil in that case gave a variety of legacies; some of them to the same, others to a less, and others to a larger amount (and so far it is a stronger case than ours), and it nowhere pretended to revoke the prior testamentary paper; nevertheless it was determined that the sums bequeathed to the same legatees were not additional but substituted. The [99] case of M'Kenzie v. M'Kenzie may seem at first sight inconsistent with the others, but it is clearly distinguishable, for the codicil there not only positively recognised and confirmed the will in all other respects, but most of the sums bequeathed by it were different in value, and as to several in which the testator intended revocation, he expressly said so, thereby raising a strong implication that as to the rest he had no such intention.

The same principle ought to hold, perhaps even more strongly, in a case like the present, where the subsequent testamentary paper, though it cannot be said to repeat a series of bequests, does what amounts to the same thing, by embracing within the range of its bounty all the objects for which the prior instrument had provided. This professes indeed to be a codicil, but it is really a kind of supplemental will, having reference to the distribution of the whole of the testator's property. It takes up the former will as the basis of the proposed distribution, and, proceeding as it were in parallel lines with it, explains and remodels the dispositions which that had made. It contemplates no new gift (unless the bequest to the Appellant is to be so construed); for its single purpose is to modify and abridge, while, as to their general amount it ratifies the interests previously given. The second may, therefore, be considered as a substitution for the first instrument, except where, as in the instance of the daughter's legacy and the nomination of executors, it expressly confirms and adopts it. In each of them the testator divides his fortune into three portions. One of these he gives to his natural daughter; another to his natural son ; and the third, the residue, comprising the great bulk of his property, to his wife and family. In the codicil he first considers the case of the daughter, and distinctly recognising the sum which [100] he had already bequeathed to her, proceeds to regulate and qualify the gift. He then adverts to the legacy given to his son; and, as he had spoken and approved of the £2000 bestowed on the daughter in the preceding clause, so, in the next, he repeats that he also gives to his son £1000, stating that he means it to be taken subject to the same conditions. The word "also indicates naturally enough the transition of the testator's mind from the one bequest to the other, and it indicates no more. Finally, he addresses himself to the consideration of the residue, which had been left to his widow absolutely, or in the event of her death, to his only lawful child; and, without professing to revoke that disposition, he does, in effect, make a totally different distribution, bequeathing what he calls the aggregate of his property, after payment of the legacies, to the widow for life or widowhood only, with remainder among all his lawful children.

It is impossible not to perceive from this comparison, that the two instruments

are commensurate, and that their several parts have a mutual relation; and the inference is natural and almost unavoidable, that, as far as the one overrides the other, they cannot stand together. To that extent the codicil is virtually a revocation; the £1000, which it gives, is the same £1000 which the will had previously given, and the consequence follows, of course, that the legacies are not accumulative. Besides, had the intention been different here, why should the testator, when he was carefully guarding against the lapse of the daughter's portion, and of the £1000 given to the son, by a bequest over to his lawful children, have neglected a similar provision with respect to the £1000 mentioned in the will, if that was meant to [101] be a separate gift? The motive for the precaution, that the son was a natural child, and that otherwise the legacy would go to the Crown if he died in infancy, would have applied with equal force to the first legacy as to the second, and yet when his attention is directly drawn to it by the reference to the daughter's situation under the will, he takes no notice of it whatever, a circumstance which proves beyond a doubt, that in the will and codicil he considered himself as speaking of one and the same sum. As to the alleged increase of his property, the codicil shews that his family had increased in at least an equal proportion. In every case of this kind the single inquiry is, what did the testator really intend. For the purpose of ascertaining that point, it is necessary to weigh all the circumstances, to place the instruments in juxtaposition, and to compare attentively the whole scope and import of each; and if we do so in this instance, we cannot fail to arrive at a conviction, that in the codicil the testator was merely repeating and not enlarging his bequest.

Mr. Horne, in reply.

THE LORD CHANCELLOR [Lyndhurst]. There can be no doubt, I apprehend, as to the general rule. The only question here is, Whether there is sufficient to shew that this codicil was intended to operate as a substitution for the legacy given by the will. My own opinion is, and has been from the first, that the codicil was intended as a substitution, or rather as a qualification, of the will. [Here his Lordship stated the material parts of the will and codicil, and observed that the latter ran over and reviewed the whole of the dispositions in the will.] The testator intended by the [102] codicil to give directions to qualify the different legacies. In the first place, he says, as to his natural daughter, the fund for the payment of her legacy has shifted, and he makes a provision for that circumstance. Then, in a subsequent clause, he qualifies the absolute gift to her by saying that, in the event of her dying under twenty-one and unmarried, her legacy shall go over. In precisely the same terms he next qualifies the legacy of £1000 given to his natural son; and if he had intended that gift of £1000 to be accumulative and not in satisfaction of the sum given by the will, no reason can be assigned why one half only should be directed to go over. The principle of all the cases on this subject depends upon the question, Whether you can collect, from the whole of the instruments taken together, an intention on the part of the testator to substitute the one legacy for the other. I think you may, from the circumstances in this case. The judgment of the Court. below ought, therefore, to be affirmed. (2)

(1) See the observations of Lord Thurlow in Moggridge v. Thackwell, 1 Ves., jun., 473, and of Sir W. Grant in Benyon v. Benyon, 17 Ves., 42.

(2) Most of the authorities upon this subject have been collected by Mr. Geldart, in a note to the 6th volume of Maddock's Reports, p. 303, under the case of Wray v. Field, which is also reported on appeal in 2 Russ., 257. The subsequent cases are Hemming v. Gurrey, 2 S. & S., 311; McKenzie v. M'Kenzie, 2 Russ., 262; Loril v. Sutcliffe, 2 Sim., 273. The judgment of Sir John Leach, Vice-Chancellor, in Hemming v. Gurrey, was subsequently carried by appeal to the House of Lords, and finally affirmed by Lord Eldon. 1 Bligh, N. S. 479.

If the different instruments are exactly co-extensive in their provisions, and, in other respects, are so nearly identical as to satisfy the Judge that they could never be intended to exist together, probate will be granted only of the latest in date, and the others will be held to be virtually revoked. Methuen v. Methuen, 2 Phillim., 416. And parol evidence will be resorted to, if necessary, to assist in determining the intention. Ib. But where testamentary papers, very similar in form, and embracing the same general range of objects, still present such discrepancies, that one cannot amount [103] to more than a partial revocation, or repetition, of the rest, the

Prerogative Court allows all of them to be proved, and leaves it to Courts of Equity to exercise their own judgment on the question of addition or substitution, whenever those Courts are called upon to construe their effect for the purpose of determining the rights of legatees. Jackson v. Jackson, 2 Cox, 42; Hemming v. Gurrey, 2 S. & S., 311. 1 Bligh, N. S. 479. And if the prima facie presumption in favour of accumulation is rebutted by internal evidence, drawn from a comparison of the language and contents of the instruments themselves, testimony becomes then, and not till then, admissible, either to fortify or overthrow the original presumption. Hurst v. Beach, 5 Madd., 359-61.

CLARK . DEW. Nov. 18, [1829].

A receiver will not be appointed at the instance of a party claiming as devisee under a will, the validity of which is to be determined by an issue, unless the claimant satisfies the Court that there is a reasonable probability of his succeeding on the issue, and that the property will be endangered by being left in the possession of the heir at law.

A party who is in contempt for disobedience to an order in a cause is not thereby precluded from making a motion in another cause having reference to a distinct subject, though between precisely the same parties. Semble.

This was a motion, on behalf of the Plaintiff Thomas Clark, for the appointment of a receiver of certain real property, to which he and his brother and Co-plaintiff, Valentine Clark, claimed to be beneficially entitled, under the will of their deceased uncle Eli Stott. The bill was filed by the Clarks against the devisees in trust, and against the heiress at law, Mrs. Dew, and her husband, for the purpose of establishing the will, and carrying the trusts of it into execution, as far as related to the real estate of the testator; and it prayed an issue devisavit vel non to try the validity of the will, and that a receiver might be appointed in the meantime.

[104] The Defendants, Mr. and Mrs. Dew, by their answer, admitted that the supposed will had been duly executed according to the Statute of Frauds, but they altogether denied its validity, inasmuch as the testator was not, at the time of its execution, of sound and disposing mind, memory, and understanding. They further stated, that the property in question consisted merely of a slip or landing-place at Rotherhithe, which was let at a rent of eighteen guineas a year, and that they had only obtained possession of it, after recovering judgment by default, in an action which they were compelled to bring against the trustees for the rent, and in which, as they alleged, the Plaintiffs had an opportunity, if they had thought fit, of trying the validity of the will at law. Their answer also set forth at large the proceedings that had taken place in the Prerogative Court, and in the Court of Delegates, where the validity of the instrument, as a disposition of personal estate, had been long in litigation, and where it had been finally decided, by two successive judgments, that Eli Stott had died intestate as to his personal estate; and they relied on those proceedings, and on the result of an unsuccessful application afterwards made to the Lord Chancellor for a Commission of Review, as sufficiently establishing the invalidity of the will, and the rights of the Defendant, Mrs. Dew, as the testator's next of kin and heiress at law. They also stated, that the Plaintiff Thomas Clark was a prisoner in the Fleet for contempt of the Court of Chancery, in disobeying certain orders made in a cause in which he was a Defendant and these Defendants were Plaintiffs, and that his brother, the other Plaintiff, was abroad and out of the jurisdiction.

The other Defendants, the devisees in trust, by their answer admitted that the testator was, as they believed, of sound and disposing mind, memory and understand[105]-ing and legally competent to make a will at the time when he executed the one in question.

Sir Charles Wetherell and Mr. Roupell, for the motion. This motion is founded on the admission contained in the answer of the Defendants, and may be regarded as almost a matter of course. It is admitted that the testator died seised of real estate, and that the Defendants Mr. and Mrs. Dew are now in the receipt of the rents and profits of that estate. They say, indeed, although their Co-defendants, the trustees, say directly the reverse, that they do not believe the testator was of sound mind at