evidence. But it is still a matter of enquiry, how far extrinsic evidence can be received for this purpose", In Barclay . Wainright, his honour referred it to the master to enquire, whether the several persons, legatees by the first codicil, to whom no legacies were given by the second, were dead or not in the service of the testator at the date of the second codicil, and such facts were received for the sake of assisting and elucidating the internal evidence, by shewing that the omission of certain legatees named in the will, did not spring from any new intention of the testator. The same judge, in a case of double legacies, which afterwards came before him, upon the question whether the parol evidence could be admitted, observed, that "if it is an established rule that two legacies are accumulative where they are given by different instruments, he could not raise a presumption by evidence against it, and he was inclined to think it must be taken to be a rule." The rule was the presumption also laid down in Ridges v. Morrison, by Lord Chan State of the doctrine as to of the courts in ble legacies, in the same and the cases of dou- cellor Thurlow-" that where a testator gives a legacy by a codicil as well as by his will, whether it be more, less, or equal, to the same person who is legatee in the will, it is an accumulation." The distinct instruments. See Cliffe v. Gibbons, 2 Lord Raym. 1324. Osborne . Duke of Leeds, 5 Vez. jun. 269, same chancellor adds, that it is incumbent upon the executor to produce evidence to the contrary, if he contest such accumulation. But the species of evidence to which his lordship afterwards adverts, is wholly internal, and arising out of the context of the instruments. The rule as laid down in the case just alluded to, was adopted from Hooley v. Hatton, (see the note at the end of the case of Ridges v. Morrison,) which case of Hooley v. Hatton, Lord Thurlow observed, was examined with abundant care, and he accompanied that observation with a remark, that it was unnecessary to repeat the cases after reading the very able opinion of Mr. J. Aston, which, he said, contained the whole doctrine of the law upon the subject. The state of the presumption, according to the varying circumstances of the case, seems to be settled by the result of the authorities upon the following criteria, viz. where the same specific thing or corpus (as a diamond ring, where the testator has but one) is twice given to the same person, either by the same instrument, or by different instruments, there in the nature of the thing, it is but a repetition. Where the same quantity as 1001. is twice given by the same instrument, the presumption simpliciter is against the legatee:-But where the same quantity is given by the same instrument with any additional cause assigned for it, or with any material circumstance of variation accompanying the second gift, the presumption is turned against Whether parol evidence is ad missible to determine this question? Evidence and Construction. CHAP. III. the executor in favour of the accumulation.-Where equal sums are given in two distinct writings, or a larger after a less, or a less after a larger, the latter gift is construed an accumulation. But though the presumption in a case, wherein two legacies of the same sum or quantity occur in distinct instruments, leans against the executor, yet it is only a presumption simpliciter, and is turned the other way where the same cause is expressly assigned in both instruments for the gift without any additional reason'. And it seems also, according to Lord Hardwicke that where in a distinct instrument a larger legacy is given to the same person, assigning, in totidem verbis, and with a perfect identity, the same cause which was expressed in the former instrument, this shall not be a double legacy; with which position, Aston J. in Hooley v. Hatton, appears to agree, and the same doctrine seems to be held by Lord Thurlow in Ridges v. Morrison above cited, and is stated to be the rule by Menochius". It is to be remarked, that in the above mentioned case of Hooley v. Hatton, which is a very leading authority, no idea appears to have been entertained of the admissibility of parol evidence. Mr. J. Aston f Menochius de præsumptionibus, lib. præs. 128, num, 4, 13, 14, and see Swinb. part 7, c. 20, fol. edit. 550. 8 2 Atk, 640. Lib. 4, præs. 128, and see Swinb. 4to edit. 201. opened with observing, that in the case before him, there was no internal evidence, therefore, he must refer to the general rule of law. And the Lord C. B. Smythe observed, that " the intention is the clearest rule, but it is admitted on all hands, here is no internal evidence, we must therefore refer to the rule of law." And lastly, by the Lord Chancellor Bathurst, it was said, that "no argument could be drawn in the case before him from internal evidence, they must, therefore, refer to the rule of law." What Lord Thurlow's opinion was, as to the admissibility of parol evidence, does not expressly appear in the above-mentioned case of Ridges v. Morrison, but it is to be observed, that in illustrating his remark "that slight circumstances may operate in proof of the testator's intention," he specified such only as could be collected from the context of the instruments. And in Campbell v. the Earl of Radnor', the decision turned upon the words of the instruments. But in Coote v. Boyd, the point respecting parol evidence came directly under adjudication, in which Lord Thurlow laid down the rule thus, "the question, whether by giving two legacies, the testator did not intend the legatee to take both, is a question of presumption donec probetur in contrarium, and will let in all sorts of evidence." And the same chancellor further observed, (what the temper of later decisions seems inclined to adopt, as the true and practicable distinction) that "where the question arises upon the construction of words simply, qua words, no evidence (i. e. extrinsic evidence) can be admitted.” Whether his lordship would have been ultimately governed by these maxims, if the decision of the case had depended upon it, cannot be known, since the case was determined upon the internal evidence of the will and codicil themselves. It was much contended, that it was a case of presumption, and that all presumptions were open to be encountered by parol evidence. It seems to be PART IV. General Doctrine. UPON the whole, the distinction, according to doctrine that all Lord Thurlow, seems to be this: that all sorts of sorts of evidence rebut presump are admissible to evidence are admissible, with different degrees of tions, and even weight and value, to rebut presumptions of tive operation of equity (1), and even that constructive operation. that construc (1) It has long been fully settled, that parol evidence is admis sible to rebut a resulting use, Lord Altham Earl of Anglesea, 2 Salk. 676, see also Roe, lessee of Roach v. Popham and others, Dougl. 2. |