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Leapingwell, 18 Ves. 463; Walpole v. Apthorp, 4 Eq. 37; Miller v. Huddlestone, 6 Eq. 65; Elwes v. Causton, 30 B. 554; Wright v. Weston, 26 B. 429.

But if the fund is given subject to debts, the gift of the residue will not be specific. Harley v. Moon, 1 Dr. & S. 623; Baker v. Farmer, 3 Ch. 537.

So, too, though the testator estimates the fund in money, if the residue is given subject to or after payment of specific gifts, the gift of the residue is not specific, but will carry everything undisposed of, by reason of lapse or otherwise. Carter v. Taggart, 16 Sim. 423; Harries' Trust, Jo. 199; but see Miller v. Huddlestone, 6 Eq. 65.

So, if the fund is estimated in figures, but the testator shows that he considers it fluctuating in amount by adding “ or other the stock, funds, or securities of which the same may for the time being consist,” the gift of the residue is not specific. De Lisle v. Hodges, 17 Eq. 440.

And though the fund is in fact definite in amount, if the testator merely describes it generally, without estimating it in figures, the gift of the residue is not specific. Petre v. Petre, 14 B. 197; Vivian v. Mortlock, 21 B. 252.

See the chapter on Residuary Bequests, p. 187.

I

CHAPTER XVI.

CUMULATIVE AND SUBSTITUTIONAL LEGACIES.

Legacies I. LEGACIES of equal amount given by the same instruby same instrument ment are merely repetitions. Holford v. Wood, 4 Ves. of equal 75; Manning v. Thesiger, 3 M. & K. 29; Brine v. Ferrier, amount ;

7 Sim. 549; Early v. Benbow, 2 Coll. 342; Early v. Middleton, 14 B. 453.

But there may be an intention to give both. Barkenshaw v. Hodge, 22 W. R. 484, where the gift was to trustees, and the legacies were introduced by the words "upon trust to pay,” and “upon further trust to pay,” &c.

Parol evidence would be admissible to show that the testator meant the legatee to have both legacies, such evidence being in support of the prima facie meaning of the instrument. See Hurst v. Beach, 5 Mad. 351; Hall

v. Hill, 1 Dr. & War. 94. of unequal If the legacies are not equal the legatee is entitled to amount.

both. Yockney v. Hansard, 3 Ha. 622; Curry v. Pile, 2 B. C. C. 225; Baylee v. Quin, 2 Dr. & War. 116; Adnam v. Cole, 6 B. 353.

The rules with regard to cumulative legacies do not apply to the case of a pecuniary gift and a residue given to the same person. In such a case the legatee is entitled to

both. Kirkpatrick v. Bedford, 4 App. C. 96. Legacies II. Legacies of equal, less, or greater amount, given by ferent in- different instruments, as by will and codicil to the same struments.

person, are primâ facie cumulative. Hooley v. Hatton, 1 B. C. C. 390 n.; Lee v. Pain, 4 Ha. 201, 216; Roch v.

by dif

Cullen, 6 Ha. 531 ; Cresswell v. Cresswell, 6 Eq. 69; Wilson v. O'Leary, 12 Eq. 525; 7 Ch. 448; Walsh v. Walsh, I. R. 4. Eq. 396.

Bequests of a share of residue by will and of a pecuniary legacy by a codicil are, of course, cumulative. Gordon v. Anderson, 4 Jur. N. S. 1097; Ledger v. Hooker, 18 Jur. 481.

It makes no difference that the codicil recites the gift by will. Guy v. Sharp, 1 M. & K. 589.

The fact that some legacies in the codicil are expressed to be in addition affords an argument that the others are substitutional, but is not conclusive. Hooley v. Hatton, 1 B. C. C. 390 n.; Allen v. Callow, 3 Ves. 289; Mackenzie v. Mackenzie, 2 Russ. 272; Wray v. Field, 2 Russ. 257; 6 Mad. 300; Barclay v. Wainwright, 3 Ves. 462.

The fact that a legacy given by a codicil is expressed to be in addition to a legacy given by the will does not show that it is not also in addition to a legacy by a prior codicil. Spire v. Smith, 1 B. 419; Watson v. Reed, 5 Sim. 431; see Sawrey v. Rumney, 5 De G. & Sm. 698. III. It may, however, appear that the gift by the later Legacies

by dif. instrument is intended to be substitutional. This may

be ferent inshown: 1. By the form of the second instrument.

substitu.

tional a. If the instrument by which the second gift is made if the inis not a codicil, but is described as a last will and testa- struments

themselves ment, the presumption is strong that it was intended are substi

tutional, to be in substitution so far as it goes for the prior instrument. Jackson v. Jackson, 2 Cox, 35; Kidd v. North, 14 Sim. 463; 2 Ph. 91 ; Tuckey v. Henderson, 33 B. 174.

b. If the additional instrument recites that the testator bas not time to alter his will, legacies given by it will be substitutional. Russell v. Dickson, 4 H. L. 293.

c. If the additional instrument is treated as explanatory of and to be incorporated into the will, the case may

be

struments will be

or mere

of each

.

brought within the rule as to additional gifts in the same instrument. Duke of St. Albans v. Beauclerk, 2 Atk. 636; Fraser v, Byng, 1 R. & M. 90.

And in the same way several testamentary papers may be so connected together as to be in fact one instrument. Brine v. Ferrier, 7 Sim. 549.

The same will be the case where there is a gift to a person with a different gift written in the margin of the will. Martin v. Drinkwater, 2 B. 215.

2. From the contents of the second paper. repetitions

For instance, where the second instrument is not a other,

codicil but a testamentary paper, and in effect makes the same dispositions as a prior testamentary paper. Gillespie v. Alexander, 2 S. & St. 145; A.-G. v. Harley, 4 Mad. 263; Hemming v. Gurney, 2 S. & St. 311; 1 Bl. N. S. 479.

So one codicil may appear to be a mere repetition of another. If, for instance, both are of the same date and contain the same provisions in all respects. Whyte v. Whyte, 17 Eq. 50.

So if, though not of the same date, the legatees are the same, and certain specific legacies, as well as the residue, are given by both. Duke of St. Albans v. Beauclerk, 2 Atk. 636; see Coote v. Boyd, 2 B. C. C. 521, and Campbell v. Earl of Radnor, 1 B. C. C. 271; see Roxburgh v. Fuller, 13 W. R. 39.

Evidence is admissible to show that two codicils of different dates, but containing the same dispositions, were executed only as duplicates. Hubbard v. Alexander, 3

Ch. D. 738. if the 3. It may appear from the character of the second gift the second itself that it is meant to be substitutional. gift show

a. If the second gift only adapts the bounty to circumthat it was

stances that have happened ; as, for instance, the death of tutional." prior legatees. Barclay v. Wainwright, 3 Ves. 462; Allen

v. Callow, 3 Ves. 289; Osborne v. Duke of Leeds, 5 Ves. 369.

terms of

meant to be substi

6. If the second gift can be looked upon as explanatory of the prior gift. Moggridge v. Thackwell, 1 Ves. jun. 473.

c. If by a codicil the testator revokes a portion of a prior gift, and then repeats the rest, so that the repetition may be explained as ex abundanti cautela. Benyon v. Benyon, 17 Ves. 34; Hinchcliffe v. Hinchcliffe, 2 Dr. & S. 96.

d. If the second gift is coupled with a gift of some specific thing already given, this shows it to be substitutional. Currie v. Pye, 17 Ves. 462 ; see Lord Mayor of London v. Russell, Finch, 290; explained 6 Ir. Ch. 131.

e. And generally it seems that a difference in the way in which the two gifts are given is in favour of their being cumulative. Hodges v. Peacock, 3 Ves. 735 ; Lee v. Pain, 4 Ha. 201. Though, on the other hand, if the two gifts are of the same amount, but given to different trustees, the argument is the other way. Benyon v. Benyon, 17 Ves. 34.

f. The testator may show by a reference to a gift in one codicil as a “sufficient” provision that the gift so given was all the legatee was intended to have. Robley v. Robley, 2 B. 95. IV. Gifts by different instruments of the same amount Gifts of

the same and expressed to be given from the same motive are sub

amount stitutional. Benyon v. Benyon, 17 Ves. 34.

given from It must, however, be clear that the testator is expressing motive are a motive and not merely giving a description ; thus, in the tional. case of gifts of equal amount to a “servant,” the term servant is merely descriptive. Roch v. Cullen, 6 Ha. 531; Suisse v. Lowther, 2 Ha. 424; Wilson v. O'Leary, 12 Eq. 522; 7 Ch. 448.

If, however, the gifts are not of the same amount they are cumulative. Hurst v. Beach, 5 Mad. 352. V. Additional legacies are subject to the same incidents Additiona

and substias the original legacy.

tutional A gift in addition to or in lieu of a previous gift to the sufficere

subject to

the same

substitu

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