с

Fund 26501

value of 20007., that would not have been a satisfaction of a portion of the same amount.*

A legacy by a father to a child is not in general a satisfaction of a debt due to the child in any other way than a debt due from a stranger would be satisi fied by such a legacy. The Court however leans 2 against double portions proceeding from the same 237 person, or tending to bring a greater burden on the illen heir of a family; and it has been long determined, JM that where the portions come from the same party, the father or a person in loco parentis, small circumstances of difference where the value is substantially the same to the child shall not prevent satisfaction, which would have that effect in the case of a stranger. Thus a legacy payable three months after the decease of the testator's wife was held a satisfaction of a portion due at her death. So if the gift is not equal in amount to the portion, yet it will nevertheless be a satisfaction pro tanto. And where in a marriage settlement providing portions for children there was a proviso, that if the parents should in their lifetime settle, give, or advance to any child any sum, &c. it should be deemed and taken in part of the portion: a legacy by the father was considered as an advancement in his lifetime, and a satisfaction pro tanto.

servants had never been held to be in satisfaction of debts: his Lordship however did not decide the case before him merely on that ground, and in other cases the circumstance of its being a legacy to a servant does not seem to have been taken into consideration.

Evidence it seems, for there has been some contrariety of opinion upon this point, is admissible either to meet or fortify the presumption that a legacy. was meant as a satisfaction.d

CHAPTER V.

OF REVOCATION.

SECTION I.

Of express Revocations.

IT has been held that if a husband and wife jointly execute a mutual will, and she after her hus• band's death takes benefits under it, and then makes a new will; the latter is void so far as it breaks in upon the mutual will, the bequests of which her assets are bound to make good." But except in such a special case no maxim in law is better known than that a will is always revocable, notwithstanding it be made irrevocable in the strongest words." If then a testator by a codicil expressly revokes a particular bequest in his will, there can be little difficulty; but when the revocation is in more general terms a question often arises how far it was intended to include in it any particular legacy. Thus where a woman by her will, reciting that she had a power of appointment over some Long Annuities, gave and appointed them, and all her plate, linen, china, &c., in trust for her residuary legatee thereinafter named; and then gave all her other estate and effects to her son D.; and by a codicil, recited that she had given the residue of her estate to her son D., and legacies to her son W., and to her servants, and then revoked all the above bequests, and gave the residue of her estate and effects to her sons W. and D. equally between them: the codicil was held only to revoke the bequest of the residue, and not to ex

• Dufour v. Pereira, 1 Dick, 419.

b 2 Bl. Com. 502. Off. Ex. 243.

tend to the long annuities and specific articles, to which D. was solely entitled." In the same way where a man devised a freehold estate called Battens to his wife for life, and after her death to A. for life, with remainder to his first and other sons in tail, with remainders over; and, after reciting that he was possessed of a leasehold estate adjoining, directed his trustees and executors to grant the same to some persons in trust that it might go and be enjoyed by the owner or possessor for the time being of his real estate, and not be separated therefrom as long as the term lasted; and then gave his wife the rents, issues, and profits, of all his chattel estates for her life, if she chose to reside at Battens, and also the use during life of the household goods and furniture there; and the testator afterwards suffered a recovery of his real estates, by which the devise of Battens was revoked: the House of Lords reversed the decree of Lord Camden, who had decided that the direction to convey the leasehold estate and the devise to the wife of the chattel estate, and of the household goods, and furniture, were consequentially revoked; and held the wife entitled to the benefit of the bequests, discharged from the condition of living at Battens, which the recovery had put out of her power.c

Where a man by his will bequeathed to his sister a legacy of 1007., and by a codicil revoked "the legacy of fifty pounds bequeathed to his sister: Lord Alvanley inclined to think it was only a mis

• Roach v. Haynes, 6 Ves. 153. 8 id. 584; and see Clarke v. Butler, 1 Mer. 304.

b Darley v. Darley, Ambl. 653.

take of the quantum, and a demonstration of intention to revoke the legacy given."

A legacy to an executor, we have seen," is upon condition that he takes upon himself the office, without which he will not be entitled to it. The revocation therefore of the appointment of an executor is a revocation of a legacy given to him.©

The mere cancellation of a bequest by the testatator's drawing a line through it with a pencil, or striking out the name of the legatee, seems sufficient with respect to personal property. And although a subsequent instrument revoking a devise of freehold must be executed according to the statute of frauds," yet if a man by a codicil, not so executed, revokes a residuary bequest consisting of personal property and of the produce of real estate directed to be sold, the revocation is effectual as to the personalty.

A false reason given for revoking a gift prevents the effect of the revocation. Thus where a man assigned in his codicil, as a reason for revoking two legacies given by his will, that the legatees were dead, which turned out not to be the fact it was decreed to be no revocation, the cause being false." But where a woman, having given by her will 3007. to the children of A., gave, by a codicil, to B. the 3001. designed for A.'s children, "as she knew not whether any of them were alive, and if they were well provided for:" the revocation was determined to be effectual, as the Court would not inquire whether the legatces were well provided for or not."

Lord Carrington v. Payne, 5

Ves. 404.

b Ante 137.

• See 8 Ves. 593.

Mence v. Mence, 18 Ves. 348.

e 29 Car. II. 3. 6.

f Gallini v. Noble, 3 Mer. 691. Campbell v. French, 3 Ves. 321. Att. Gen. v. Ward, 3 Ves. 327.