less it be so declared, or it is to be collected from the words of the will itself." 5. "The presumption in the case of several gifts, by different instruments, being in favor of accumulation, it is clear that the claim of the plaintiff in this case must be strengthened by any circumstances of difference between the two gifts, whether it be found in the amount, in the character in which it is given, in the mode of enjoyment, in the extent of the interest, or in the motive for the bounty. All these considerations tend, in the judgment of the court, to support the argument in favor of accumulation." 6. And it is certain that the considerations above enumerated all tend, with more or less force and certainty, to show that legacies repeated in the last will were intended to be cumulative, and not mere repetitions. In short, it is obvious that each particular case will commonly afford some ground of conjecture, more or less satisfactory, whether the naming of the gift more than once is a mere repetition, or is for the purpose of enhancing the bounty. It must therefore be admitted, in the language of an eminent judge,5 that notwithstanding all the nice distinctions which have been taken by the courts upon this subject, we must come, at last, to the plain common-sense question, What was the intention of the testator, as indicated by his language, viewed in the light of surrounding circumstances? 7. It must be apparent, from what has been already said, that much the most difficult part of this portion of the subject will be to find any satisfactory mode of determining the precise grounds upon which the courts are willing to depart from the primary presumptions already stated. The Civil Law required the clearest evidence of intention to give double legacies, where the repetition was in the same instrument. But the English law has not attempted to define the quantum of evidence which Chief Justice Hornblower, in Jones v. Creveling, 4 Harrison, 127. shall suffice to rebut the primary presumption in such cases. It must depend, in a considerable degree, upon facts and circumstances peculiar to each case. So that the rule declared in one case will be no guide, beyond that of mere general instruction, towards the decision of any other case. 8. One can scarcely read any case upon this point without perceiving some ground for conjecture, either in favor of repeti tions of legacies being intended for distinct gifts, or of their being mere repetitions of the same gift. Thus in Greenwood v. Greenwood, the legacy being to a married woman, where it is named the second time, it is added, "for her own use and disposing notwithstanding her coverture," which evidently must have been the motive of naming the gift again. For it would scarcely be supposed the testator intended to give two gifts, one of which should be exempt from the control of the legatee's husband, and the other not. 9. Where the sums are different the legatee will take both, unless there is sufficient reason to understand, that the larger sum being mentioned last, was intended as a mere enlargement of the first gift, and not as an addition to it, as was claimed in Curry v. Pile, where the testator first gave £1000, and then £5000, at the age of twenty-one, to the same legatee. But the court decided in favor of both gifts. 10. Where the legacies are of the same sum, but given by different instruments, there will always arise considerable doubt in the mind whether they are not mere repetitions; and especially when the last instrument is complete, or nearly so, in itself, making a disposition of most of the testator's estate. Hence, although the general presumption that the gifts were intended to be cumulative, will prevail, in the absence of all grounds of contrary presumption, it is evident, that slight evi 7 1 Br. C. C. 30, and note. See also Garth v. Meyrick, 1 Br. C. C. 30. 8 2 Br. C. C. 225. Wallop v. Hewitt, 2 Ch. Rep. 70; Newport v. Kynaston, Finch. Rep. 294; Baillie v. Butterfield, 1 Cox, 392. dences of a contrary purpose in the mind of the testator will incline the court to adopt such a conclusion. And some of the more recent cases seem to incline to the conclusion that the mere repetition of the legacies before given in the will or codicil, in an additional codicil, ought not, in itself alone, to form any sufficient grounds to allow both.10 11. It seems clear, both from principle and authority, that where the amount of the legacies is the same, and the instrument in which the repetition occurs is merely a copy of the former instrument in which the first gift occurs, with some few additions or changes, such as might be expected to have occurred in the purposes of the testator, and as constituting the obvious reason for making the additional codicil; indeed, in all cases, where the paper in which the repetition occurs is evidently a substitutionary, and not chiefly an additional testamentary, instrument, a very strong presumption arises in favor of the repetition not being intended as accumulative.11 12. Where the legacies are not ejusdem generis, it tends to raise a presumption that they were intended to be cumulative.12 Where one of the sums is given absolutely, and the other only upon contingency, they will be regarded as distinct gifts.13 So where the gifts become payable at different times.14 13. So where a different, or additional motive is alleged for the gift, it becomes an additional ground of treating the gifts as independent of each other.15 10 Sir Wm. Grant, M. R., in Benyon v. Benyon, 17 Vesey, 34, 41, 42, citing Lord Thurlow, in Ridges v. Morrison, 1 Br. C. C. 389. See also Currie v. Pye, 17 Vesey, 462, where Lord Eldon, Chancellor, seems to incline to the same view. "Jackson v. Jackson, 2 Cox, 35, 43. 12 Masters v. Masters, 1 P. Wms. 421, 423. 13 Hodges v. Peacock, 3 Vesey, 735. 14 Wray v. Field, 2 Russ. 257; s. c. Madd. & Geld. 300. 15 Ridges v. Morrison, 1 Br. C. C. 389; Currie v. Pye, 17 Vesey, 462; Hurst v. Beach, 5 Mad. 351. The rule upon this point is very lucidly stated by Sir In regard to the ground upon which some of the leading cases have been considered as containing internal evidence that the gifts were mere repetitions, it may be proper to add a few words. The case of London v. Russell,16 where the will gave the testator's wife £1000, and the codicil reciting that fact added, "I do now give £1600, and whatsoever is in my former will to my wife, and that my former will shall stand in full force, notwithstanding the codicil," and it was held, as the will contained specific legacies to the wife, the general legacy must be John Leach, V. C., in the case just cited. "I think the true result of the decisions, as they apply to the present point, is to be stated thus: · --- Where a testator leaves two testamentary instruments, and in both has given a legacy simpliciter to the same person, the court, considering that he who has twice given, must, prima facie, be intended to mean two gifts, awards to the legatee both legacies; and it is indifferent whether the second legacy is of the same amount, or less, or larger, than the first. But if in two such instruments the legacies are not given simpliciter, but the motive of the gift is expressed, and in both instruments the same motive is expressed, and the same sum is given, the court considers these two coincidences as raising a presumption that the testator did not by the second instrument mean a second gift, but meant only a repetition of the former gift. "The court raises this presumption only where the double coincidence occurs, of the same motive, and the same sum, in both instruments. It will not raise it, if in either instrument there be no motive, or a different motive, expressed, although the sums be the same; nor will it raise it, if the same motive be expressed in both instruments, and the sums be different. The presumption cannot therefore be raised in this case, although it be admitted that the motives are the same, inasmuch as the sums are different, and upon the face of these instruments the defendant is entitled to both sums. "This reasoning has no application to cases where the second instrument affords intrinsic evidence that it was intended by the testator in substitution of the first instrument, as in the cases of The Duke of St. Albans v. Beauclerk, 2 Atk. 636; Coote v. Boyd, 2 Br. C. C. 521, and the late case of Attorney-General v. Harley, 4 Mad. 263, before me." To this we would add that the question is further discussed in Lord v. Sutcliffe, 2 Sim. 273; Strong v. Ingram, 6 Sim. 197; Lee v. Pain, 4 Hare, 201, 216; Pym v. Lockyer, 5 My. & Cr. 29. 16 Finch, 290. restricted to £1600, seems to have been decided against the natural force of the language, and we should conjecture against the intention of the testator. But, as already stated, where it is evident, from comparison of the terms, or any other reason, that the instrument containing the repetition is merely substitutionary, as where the great majority of the bequests compare minutely with those contained in the former instrument, either in kind, character, or amount, it will be easy to conclude that even those of different quantity, where the sums are changed, to some extent, were nevertheless intended to come in the place of those before given to the same person.17 Where there is an alteration in the disposition of the legacy at the time of its repetition, and this is explained as necessary, on the ground of the actual state of circumstances, it will in general incline the court to treat the gifts as mere repetitions. 18 The fact that numerous legacies are repeated, of persons in very different circumstances, and in different relations to the testator, renders it highly improbable that they were all intended as cumulative gifts; and if not all so intended, the presumption will be strong that none were so intended. 19 It sometimes happens, that all the general legacies are contained in a codicil, and repeated with slight modifications in a later codicil. In such cases the latter is held as substitutionary.20 14. It has sometimes been made a question how far direct evidence of intention on the part of the testator is admissible to rebut or control the legal intendment or construction of the words of the will, in regard to cumulative legacies. But we "Duke of St. Albans v. Beauclerk, 2 Atk. 636; Campbell v. Earl of Radnor, 1 Br. C. C. 271; Moggridge v. Thackwell, 1 Ves. Jr. 464, 472. 18 Allen v. Callow, 3 Vesey, 289. 20 Coote v. Boyd, 2 Br. C. C. 521, 528. Barclay v. Wainwright, 3 Vesey, 462. This subject is further discussed in Osborne v. Duke of Leeds, 5 Vesey, 369; Attorney-General v. Harley, 4 Mad. 263; Fraser v. Byng, 1 Russ. & My. 90; Kidd v. North, 14 Sim. 463; s. c. 2 Phill. 91. |