THE CON STRUCTION OF A WILL. codicil to will of A. B. That A. B. afterwards trans ferred £3,000, consols, to the trustees of his daughter T. S.'s settlement, -and also per cents., for his daughter T. S.'s children. FOR SETTLING be married with the consent of their respective parents or guardians: AND WHEREAS the said A. B., deceased, duly made, signed, and published a codicil, bearing date the 16th Recites another day of April, 1834, to his said will, and thereby declared his intention as to certain dispositions and appropriations, therein mentioned to have been made by him, of certain parts of the property of the said C. B., deceased: AND WHEREAS the said A. B., deceased, after the date and execution of his said will and codicil, transferred the sum of £3,000 37. per cent. consolidated bank annuities into the names of the trustees of the settlement made and executed on the marriage of the said T. S. with the said R. S., to be by them held and applied upon and for the trusts, intents, and purposes by the said settlement declared, of certain parts of the funds therein comprised: AND WHEREAs the said A. B., deceased, also tranferred the sum of £2,500 37. 10s. per cent. bank annuities, into the names of the said trustees, to be by them held and applied upon certain trusts, for the benefit of six children of the said Recites further R. S. and T. S.: AND WHEREAS the said A. B., deceased, duly made, signed, and published another codicil, bearing date the 8th day of May, 1834, to his said will, and thereby, after mentioning that he had, since the execution of his said will, transferred to the trustees of his said daughter T. S.'s marriage-settlement, the said sum of £3,000 31. per cent. consolidated bank annuities, to follow the purposes directed therein; and that he had further transferred to the said trustees the said sum of £2,500 37. 10s. per cent. bank annuities, for the benefit of six grand-children, the sons and daughters of his said daughter, T. S., by her husband, the said R. S., as was directed by a separate deed of trust executed by him, the said testator, in their favour, the said testator did thereby declare it to be his will, and directed, that the said two respective amounts of stock were to be considered as part of the share or proportion he had directed by his said will to pass for the benefit of his said daughter, T. S., and her children; and that a full equal share of his property, (in addition to the whole of any property that might have accrued to him, or that there codicil to will of A. B. THE CONSTRUCTION OF A WILL. -probate of the wills and codi cils of A. B. after might accrue to him from the will of his late son, the FOR SEttling said C. B., deceased, the whole proceeds arising from which were to be exclusively for the benefit of the children of his said late son, as directed by his, the said testator's, will, or intended so to be, or by the codicil theretofore executed by him, for the purpose of directing the same), was to be first taken by or amongst the children of the said C. B., deceased, before the said T. S., or her children, should be entitled to any further amount in respect thereof; and further, that the same rule should be followed, in respect of any further amount of stock or money he, the said testator, might thereafter appoint, for the exclusive benefit of the said T. S., or her children: AND WHEREAS the said A. B., deceased, died on death of A. B. the 3rd day of January, 1836, without having altered or revoked his said will, except in so far as the same was altered by his said codicils, and without having altered or revoked his said codicils, or any of them, so far as relates to the arrangement intended to be effected by these presents: AND WHEREAS the said wills and codicils were duly proved by the said N. P., G. H., and C. B., party hereto, on the 20th day of January, 1836, in the Prerogative Court of the Archbishop of Canterbury: AND WHEREAS the said C. B., party hereto, F. E. and I. H., attained their age of twenty-three years, in the lifetime of the said A. B., deceased; and the said A. B., party hereto, had attained his age of twenty-one years, but was under the age of twentythree years; and the said L. B. was an infant, under the age of twenty-one years, at the time of the death of the said A. B., deceased: AND WHEREAS all the said six the six childchildren of the said T. S. are still living: AND WHEREAS the said C. B., party hereto; F. E., I. H., A. B., party the persons hereto, and L. B., the children of the said C. B., deceased; and the said M. B., Q. P., and T. S., the children of the at his death; said A. B., deceased, were the persons living at the time of the death of the said A. B., deceased, who would have been entitled to his personal estate under the statutes for the distribution of the personal estate of intestates, in case he had died intestate: AND WHEREAS the said N. P., that the trus G. H., and C. B., party hereto, paid the funeral and tes ages of the children of C. B. at the death of A. B. ren of T. S. are living, who were next tees transferred £1,000 consols THE CONSTRUCTION OF A WILL. to the trustees of the settle ment of T. S. in will of A. B. tees retained and paid other sums for the children of C. B. FOR SETTLING tamentary expenses and debts of the said A. B., deceased, and the legacies given by his said will and codicils, and at the request, and by the direction, of the said R. S. and T. S., transferred the said sum of £1,000 37. per cent. consolidated bank annuities, part of the personal estate of pursuance of the the said testator, into the names of the trustees of the said -that the trus- marriage-settlement of the said T. S., in satisfaction and discharge of the said legacy of £1,000 37. per cent. consolidated bank annuities, by the said will of the said A. B., deceased, bequeathed to the said T. S., to be added to her marriage-settlement: AND WHEREAS the said N. P., G. H., and C. B., party hereto, in pursuance of the directions in that behalf contained in the said recited codicil of the 8th day of May, 1834, retained and appropriated the several sums of £3,000 37. per cent. consolidated bank annuities, and £2,500 37. 10s. per cent. bank annuities, out of the said residuary personal estate of the said A. B., deceased, for the benefit of the children of the said C. B., deceased, and paid and divided three equal fifth parts of the same sums amongst the said C. B., party hereto, F. E., and I. H., equally, and retained the remaining two equal fifth parts of the same sums, amounting to the sums of £1,200 37. per cent. consolidated bank annuities, and £1,000 31. 10s. per cent. bank annuities, in their own names, in trust, to answer the expectant shares of the said A. B., -that surplus party hereto, and L. B.: AND WHEREAS, after payment of the funeral and testamentary expenses, and debts and legacies, and such last-mentioned retainer and appropriation, there remained a large surplus or residue of the personal estate of the said A. B., deceased, in the hands of his said executors: AND WHEREAS the said N. P., G. H., and C. B., party hereto, have appropriated the sums of £9,000 37. per cent. reduced bank annuities, and £1,800 new 37. 10s. per cent. bank annuities, part of the said C. B. and T. S.; residuary personal estate of the said A. B., deceased, in equal moieties or shares, for the said children of the said C. B., deceased, and the said children of the said T. S.: AND WHEREAS the said N. P., G. H., and C. B., party vested shares of hereto, paid three cqual fifth parts of the said moiety or remained in hands of executors; --that trustees have made fur ther appropriations, in equal moieties, for the children of -and paid children of THE CONSTRUCTION OF A WILL. C. B., and re tained the others. and similarly for the children of T. S.; share so appropriated for the children of the said C. B., FOR SETTLING deceased, of the said sums of £9,000 31. per cent. reduced bank annuities, and £1,800 new 31. 10s. per cent. bank annuities, unto and amongst the said C. B., party hereto, F. ., and I. H., equally, and retained the remaining two equal fifth parts, amounting together to the sums of £1,800 31. per cent. reduced bank annuities, and £360 new 37. 10s. per cent. bank annuities, in their names in trust, to answer the expectant shares of the said A. B., party hereto, and L. B. AND WHEREAS the said N. P., G. H., and C. B., party hereto, transferred one equal sixth part of the said moiety or share, so appropriated for the children of the said T. S., of the said sums of £9,000 31. per cent. reduced bank annuities, and £1,800 new 37. 10s. per cent. bank annuities, to or for one of the said children, who had attained her age of twenty-three years, and transferred one other equal sixth part thereof to or for another of the said children, who had married under that age with the consent of her parents, and retained the remaining four equal sixth parts, amounting to the sums of £3,000 31. per cent. reduced bank annuities, and £600 new 37. 10s. per cent. bank annuities, in their names in trust, to answer the expectant shares of the children of the said T. S., who are under the age of twenty-three years and unmarried: AND WHEREAS large sums of money and other property, further part of the residuary personal estate of the said A. B., deceased, still remain to be disposed of and applied according to the directions contained in the said will and codicils of the said A. B., deceased: AND WHEREAS the said V. B. died on the 24th day of February, 1835; and the said L. B. died on the 5th day of September, 1836, without having been married and intestate, and letters of administration of her goods and chattels, rights and credits, administrahave been granted to the said C. B., party hereto, by the Prerogative Court of the Archbishop of Canterbury: AND -next of kin WHEREAS the said C. B., party hereto, F. E., I. H., and A. B., of L. B.; party hereto, are the persons entitled to the personal estate of the said L. B., deceased, under the statutes for the dis that considerable pro perty of A. B. is still undisposed of; death of of L. B., intestate and sole; V.B.; death tion to L. B.; THE CONSTRUCTION OF A WILL. -doubt has arisen, whether the legacy to the settlement of T. S. was not subsequent transfers, by the testator, to the trustees of the settlement. FOR SETTLING tribution of the personal estate of intestates: AND WHEREAs doubts have arisen whether the said legacy of £1,000 37. per cent. consolidated bank annuities, by the said will of the said A. B., deceased, given to the said T. S., to be added to her marriage-settlement, was not satisfied by the said A. B., deceased, having, subsequently to the date of his satisfied by the said will, transferred the said sum of £3,000 like annuities into the names of the trustees of her said settlement; and whether, in consequence of the said legacy having been so satisfied, the said transfer of £1,000 like annuities, hereinbefore mentioned to have been made to the trustees of the said settlement, in satisfaction of the said legacy by the said executors of the said A. B., deceased, was not improper and chargeable as a misapplication of the assets of the said testator (b): AND WHEREAS doubts have also arisen whether the said sums of £3,000 31. per cent. consolidated bank annuities, and £2,500 37. 10s. per cent. reduced bank annuities, by the said codicil of the 8th day of May, 1834, directed to be taken by or amongst the children of the said C. B., deceased, as aforesaid, were to be taken by them as -and whether of C. B. were to Ademption of legacies by advancement of portions. (b) It is the doctrine of the courts of equity, that where a father, or a person in loco parentis, gives a legacy to a child, the legacy must be understood as a portion, though it is not so described in the will. And if the testator afterwards advance a portion for that child, such advance is to be presumed to be an ademption of the legacy, although there may be slight circumstances of difference between that advance and the legacy; and although the advance and legacy may be of different amount. (Ex parte Pye, 18 Ves. 140; 2 Williams' Law of Executors, 827; 1 Roper on Legacies, 325; Carver v. Bowles, 2 Russ. & My. 301; Sheffield v. Earl of Coventry, Id. 317; Powys v. Mansfield, 6 Sim. 528, reversed 3 My. & Cra. 359). Parol evidence of the testator's intention is admissible, either to rebut or confirm the presumption. (Trimmer v. Bayne, 7 Ves. 503; Robinson v. Whitley, 9 Ves. 577; Thellusson v. Woodford, 4 Mad. 420; see, too, the cases, &c. before cited; and Weall v. Rice, 2 Russ. & My. 251; Booker v. Allen, Id. 270; Lloyd v. Harvey, Id. 310). As to who may stand to the child in loco parentis, see 1 Will. Executors, 827; 1 Roper on Legacies, 330, et seq.; Booker v. Allen, ubi supra; Powys v. Mansfield, ubi supra; Rogers v. Soutten, 1 C. P. Cooper, 96). |