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.

by dif

III. It may, however, appear that the gift by the later Legacies instrument is intended to be substitutional. This may be ferent inshown:

1. By the form of the second instrument.

struments will be substitutional

themselves

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 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 has 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

or mere

repetitions of each other,

if the

terms of

the second

gift show

that it was meant to be substitutional.

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.

For instance, where the second instrument is not a 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.

3. It may appear from the character of the second gift itself that it is meant to be substitutional.

a. If the second gift only adapts the bounty to circumstances that have happened; as, for instance, the death of prior legatees. Barclay v. Wainwright, 3 Ves. 462 ; Allen v. Callow, 3 Ves. 289; Osborne v. Duke of Leeds, 5 Ves. 369.

b. 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 cautelá. 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.

the same amount

IV. Gifts by different instruments of the same amount Gifts of and expressed to be given from the same motive are substitutional. Benyon v. Benyon, 17 Ves. 34.

given from the same

substitu

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 as the original legacy.

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

and substitutional gifts are subject to

the same incidents as the original gift.

same legatee is subject to the same conditions as the previous gift with respect to vesting, separate estate, the fund out of which it is payable, freedom from legacy duty, and provisions against lapse. Leacroft v. Maynard, 1 Ves. jun. 279; 3 B. C. C. 233; Crowder v. Clowes, 2 Ves. jun. 449; Day v. Croft, 4 B. 561; Duncan v. Duncan, 27 B. 392; Earl of Shaftesbury v. Duke of Marlborough, 7 Sim. 237; Bristow v. Bristow, 5 B. 289; Cooper v. Day, 3 Mer. 154; Fisher v. Brierley, 30 B. 265; In re Wight; Knowles v. Sadler, W. N. 1879, 20.

It makes no difference that the legacy is not expressed to be in addition to the previous gift. Johnson v. Lord Harrowby, Johns. 425; 1 D. F. & J. 183.

The rule does not apply where a legacy is given to a person in lieu of a legacy to another legatee who has predeceased the testator. Chatteris v. Young, 2 Russ. 184.

Nor does it apply where the condition in question is limited by the will to legacies "hereinafter" given, and the additional legacy is given by a codicil. Bonner v. Bonner, 13 Ves. 379; Strong v. Ingram, 6 Sim. 197.

It is not quite clear whether an additional or substitutional gift will be subject to the same executory gifts over as the original gift; it seems, however, that it will not. Crowder v. Clowes, 2 Ves. jun. 449; Alexander v. Alexander, 5 B. 518; see Donnellan v. O'Neill, I. R. 5 Eq. 523.

An additional legacy given in terms which would give an absolute interest is not subject to limitations of the prior gift, which would cut it down to a life interest. Haley v. Bannister, 23 B. 336; More's Trust, 10 Ha. 171 ; Mann v. Fuller, Kay, 624; Hill v. Jones, 37 L. J. Ch. 465; see Cookson v. Hancock, 2 M. & Cr. 606; Hargreaves v. Pennington, 12 W. R. 1047.

119

CHAPTER XVII.

THE INCIDENTS ATTACHING TO SPECIFIC AND

GENERAL LEGACIES.

I. ADEMPTION.

legacy is

A SPECIFIC legacy is adeemed if it is afterwards converted A specific by the testator into something else. Ashburner v. M'Guire, adeemed if con2 Br. C. C. 108. verted by The conversion must be complete in the lifetime of the the testator. A direction to sell not carried out till after the testator's death will not effect ademption. Harrison v. Asher, 2 De G. & S. 436.

A charge upon a specific bequest is gone if the specific bequest is adeemed. Cowper v. Mantell, 22 B. 223.

testator,

To effect ademption it is not necessary that the conver- or a proper authority, sion should be the act of the testator. It is sufficient if the property is converted by some duly constituted authority, such as an order in lunacy. Shaftsbury v. Shaftsbury, 2 Ver. 747; Jones v. Green, 5 Eq. 555.

vis major.

Destruction of the property by vis major, such as the loss or even of a ship, has the same effect. Durrant v. Friend, 5 De G. & Sm. 343.

There will be no ademption where the specific thing But not by improper has been converted without authority. Basan v. Brandon, conversion. 8 Sim. 171; Taylor v. Taylor, 10 Ha. 475; Jenkins v. Jones, L. R. 2 Eq. 323; see Browne v. Groombridge, 4 Mad. 495.