can fully pass but once, accumulation of the legacies is impossible.89 § 685. Two Gifts, in the Same Will, to One Person: Whon Cumulative. Where two gifts of different articles or of different amounts are given to one person in a single testamentary instrument, without qualification, explanation or statement of motive, both gifts are effective." But if such gifts are for the same amount and are given simpliciter, only one will takes effect. The presumption is of an inadvertent repetition, and an immaterial difference in the manner in which the legacies are conferred will not be evidence that the testator intended them to be cumulative.91 89 Hooley v. Hatton, cited in 1 Bro. C. C. 390, 28 Eng. Repr. 1196; Ridges v. Morrison, 1 Bro. C. C. 389, 28 Eng. Repr. 1195; Suisse v. Lowther, 2 Hare 424, 67 Eng. Repr. 175; Matter of Donner's Exrs., 65 N. J. Eq. 691, 55 Atl. 1104; Dewitt V. Yates, 10 Johns. (N. Y.) 156, 6 Am. Dec. 326; Donner's Case, 65 N. J. Eq. 691, 55 Atl. 1104; Lawrence v. Barber, 116 Wis. 294, 93 N. W. 30. 90 Curry v. Pile, 2 Bro. C. C. 225; Yockney v. Hansard, 3 Hare 620, 67 Eng. Repr. 527; Brennan v. Moran, 16 Ir. Ch. 126; Chambers V. Chambers, 41 La. Ann. 443, 6 So. 659; Gordon v. Smith, 103 Md. 315, 63 Atl. 479; Bartlett v. Houdlette, 147 Mass. 25, 16 N. E. 740; Jones v. Creveling's Exrs., 19 N.. J. L. 127; Southgate v. Continental Trust Co., 36 Misc. (N. Y.) 415, 73 N. Y. Supp. 718; modified in 74 App. Div. 150, 73 N. Y. Supp. 718, 77 N. Y. Supp. 687; Edwards v. Rainier's Exrs., 17 Ohio. St. 597. Where the assets are insufficient to pay both legacies and all the other gifts contained in the will and codicil, the second legacy to one person may be regarded as substituted for the first. Sondheim v. Fechenbach, 137 Mich. 384, 100 N. W. 586. 91 Greenwood V. Greenwood, cited in 1 Bro. C. C. 31; Holford v. Wood, 4 Ves. Jun. 76; Early v. Middleton, 14 Beav. 453; Waters v. Hatch, 181 Mo. 262, 79 S. W. 916; In re Powell's Estate, 138 Pa. St. 322, 22 Atl. 92. § 686. Two Gifts, in Different Instruments, to the Same Persons: For Same Amount and Same Expressed Reason, Not Cumulative. Where, in each of two testamentary instruments, a legacy be given to the same person, and the motive of the gifts is expressed, and in both instruments the same motive is stated and the same sum is given, the court considers these two coincidences as raising a presumption that the testator did not, by the second instrument, mean a second gift, but only a repetition of the former gift.92 § 687. The Same Subject: With Different Reasons Expressed, or for Different Amounts, Are Cumulative. Although the same quantity or sum be given to one person by two separate testamentary instruments, if in either instrument no motive or reason for the gift is expressed, or if a different or additional cause be assigned in the later testament, or if there be any expressions in the documents to show that the testator intended both gifts to stand, the court will favor accumulation of the legacies.93 And although the same motive for each gift be expressed in each instrument, yet if the amounts given be different, the legacies are cumulative. That the legacies are for different amounts, or that they are stated 92 Hurst v. Beach, 5 Madd. 351, 358; Hooley v. Hatton, cited in 1 Bro. C. C. 390, 28 Eng. Repr. 1196; Ridges v. Morrison, 1 Bro. C. C. 389, 28 Eng. Repr. 1195; Garth v. Meyrick, 1 Bro. C. C. 30, 28 Eng. Repr. 966; Suisse v. Lowther, 2 Hare 424, 67 Eng. Repr. 175; Thompson v. Betts, 74 Conn. 576, 92 Am. St. Rep. 235, 51 Atl. 564; Waters v. Hatch, 181 Mo. 262, 79 S. W. 916; Creveling's Exrs. v. Jones, 21 N. J. L. 573; Dewitt v. Yates, 10 Johns. (N. Y.) 156, 6 Am. 93 Hurst v. Beach, 5 Madd. 351, 358; Suisse v. Lowther, 2 Hare 424; Ridges v. Morrison, 1 Bro. C. C. 389. 94 Hurst v. Beach, 5 Madd. 351, 358; Wilson v. O'Leary, L. R. 12 Eq. 525. in separate instruments or in different sections of the same will, or that they are to be paid at different times95 or out of different funds, are matters tending forcibly to show that the legacies were intended to be cumulative. Such facts, however, must appear on the face of the testamentary instruments so that the intention of the testator can be drawn from what he himself has set forth.97 8688. The Same Subject: When Given Simpliciter, Are Cumulative. Where two legacies of quantity merely are given to one person by two separate testamentary instruments of the same testator, such as by will and by codicil, without 95 Wray v. Field, 2 Russ. 257, 261; In re McIntosh's Estate, 158 Pa. St. 528, 27 Atl. 1044, 1047, 1048. If one legacy is vested and the other contingent, accumulation will be presumed.-Hodges v. Peacock, 3 Ves. Jun. 735; Van Rheenen v. Veenstra, 47 Iowa 685. Several of the principles upon which legacies will be held cumulative are stated in the following case: One of the items in a will bequeathed "to my nephews, W. H. T. and B. T., and to the survivor, the sum of three thousand dollars each, the share of the one dying first to go to the survivor." In a codicil the testator wrote: "I also give to W. H. T. the sum of two thousand dollars, in trust for the benefit of B. T., my nephew, to be used in his discretion for the necessities of said B., and if not all used for this purpose, to go to the residuary lega tees named in said will." No residuary legatees were named. The court held that the legacies to B. T. were cumulative. "They differ in amount; are given in different instruments, the first directly, the last through the intervention of a trustee. The former, in one event, is increased twofold and absolute; the latter is for life only. In one the remainder is contingent, and goes to his brother, while in the other it is vested in the heirs at law, there being no residuary legatees in the will."Utley v. Titcomb, 63 N. H. 129. 96 Kirkpatrick v. Bedford, 4 App. Cas. 96; Farnam v. Farnam, 53 Conn. 261, 2 Atl. 325, 5 Atl. 682; Power v. Cassidy, 79 N. Y. 602, 35 Am. Rep. 550; Biedler v. Biedler, 87 Va. 300, 12 S. E. 753. 97 Creveling's Exrs. v. Jones, 21 N. J. L. 573. qualification or expression of motive, the legatee is entitled to take both, the later legacy being cumulative. It is a matter of indifference whether the second legacy is of the same amount, or greater, or less than the first. The court considers that he who has twice given a legacy simpliciter must prima facie have intended two gifts.98 If this be contested, it is incumbent upon the contesting party to produce evidence to the contrary.99 § 689. Substituted or Additional Legacies: Subject to Incidents of First Legacies. One legacy substituted in place of a former, or a legacy given in addition to a previous one, is generally subject to the same incidents and conditions as the original legacy and payable out of the same funds, and this rule applies irrespective of the advantage or disadvantage accruing to the legatee.1 For example, an additional 98 Hurst v. Beach, 5 Madd. 351, 358; Hooley v. Hatton, cited in 1 Bro. C. C. 390, 28 Eng. Repr. 1196; Suisse v. Lowther, 2 Hare 424, 67 Eng. Repr. 175; Roch v. Callen, 6 Hare 531, 67 Eng. Repr. 1274; Benyon v. Benyon, 17 Ves. Jun. 34; In re Ladd's Estate, 94 Cal. 670, 30 Pac. 99; Hollister v. Shaw, 46 Conn. 248; Blakeslee v. Pardee, 76 Conn. 263, 56 Atl. 503; Bedford v. Bedford's Admr., 99 Ky. 273, 35 S. W. 926; Hoffman v. Cromwell, 6 Gill & J. (Md.) 144; Westgate v. Farris, 189 Mass. 587, 76 N. E. 223; Utley v. Titcomb, 63 N. H. 129; Dickinson v. Overton, 57 N. J. Eq. 26, 41 Atl. 949; Donner's Case, 65 N. J. Eq. 691, 55 Atl. 1104; Appeal of Manifold, 126 Pa. St. 508, 19 Atl. 42; In re Har rison's Estate, 196 Pa. St. 576, 46 Atl. 888; Noel's Admr. v. Noel's Admr., 86 Va. 109, 9 S. E. 584. Where the mere bounty of the testator is the only apparent motive for the bequest, and no other is expressed, the rule is that the legatee shall take in addition.Suisse v. Lowther, 2 Hare 424, 67 Eng. Repr. 175. 99 Ridges v. Morrison, 1 Bro. C. C. 389, 28 Eng. Repr. 1195; Hooley v. Hatton, cited in 1 Bro. C. C. 390, 2 Dick. 461, 21 Eng. Repr. 349; Dickinson v. Overton, 57 N. J. Eq. 26, 41 Atl. 949; Dewitt v. Yates, 10 Johns. (N. Y.) 156, 6 Am. Dec. 326. 1 Duncan v. Duncan, 27 Beav. 392, 54 Eng. Repr. 154; Shaftesbury v. Marlborough, 7 Sim. 237, bequest to the same legatee in a codicil is subject to a clause of survivorship expressed in the legacy in the will to which it is cumulative;2 and a gift by codicil to charity "in place and stead of" another legacy given in 58 Eng. Repr. 827; Estate of Laveaga, 119 Cal. 651, 51 Pac. 1074; Carpenter's Estate, In re, 166 Iowa 48, 147 N. W. 175; Hollyday v. Hollyday, 74 Md. 458, 22 Atl. 136; Pike v. Walley, 15 Gray (Mass.) 345; Snow v. Foley, 119 Mass. 102, 103. "When the thing bequeathed by codicil is given as a mere substitution for that which is bequeathed by the will, it is to be taken with all its incidents," said the vice-chancellor, in Earl of Shaftesbury v. Duke of Marlborough, 7 Sim. 237. A testator gave several legacies which he directed to be raised out of his real estate, one being for £1000 to a hospital, which was void by the statute of mortmain. By codicil he revoked this legacy and instead thereof gave £500 to another hospital, without mentioning any source from which it was to be paid. The court held that as the codicil did not purport to change the fund designated in the will for the payment of the lega cies, it was void equally with the original legacy.-Leacroft v. Maynard, 3 Bro. C. C. 233. A testator gave an annuity of £300 to each of two grand-daughters, to be paid to them and to their children, directing these sums to be paid to said children in such manner as the granddaughters might by deed or will appoint, and, in default of appointment, equally among the children. By a codicil he revoked the annuities and in lieu thereof gave others of £150, payable and charged in the same manner as the original ones. The children of the grand-daughters were not mentioned in the codicil. It was held that there was a substitution of the smaller for the larger annuities, affecting not only the granddaughters, but their children as well.-In re Freme's Contract, (1895) 2 Ch. 778. A testator devised certain parcels of land to his grandson with a limitation over to his daughters. He later sold the land, and by codicil bequeathed to his grandson in lieu of the land a bond and mortgage taken for the purchase money, but without any limitation over to the daughters. The bond and mortgage were held to have been given as a substitute for the land, and the executors of the grandson had to account to the daughters.-Condict's Exrs. v. King, 13 N. J. Eq. 375. 2 Thompson's Admr. v. Churchill's Estate, 60 Vt. 371, 14 Atl. 699. |