3 ever, which is contrary to that which prevails with respect to deeds,' resolutions, and other official documents,2-may be rebutted by slight affirmative evidence, and it will not apply to the filling up of blanks; and therefore, where a testator gave instructions that his will should be prepared with blanks for the amount of the legacies, and the will was found after his death regularly executed, with the amounts filled up in his own handwriting, the court presumed, in the absence of all evidence on the subject, that the blanks were filled up before the will was signed, for otherwise the execution would have been a mere idle ceremony.' § 165. Sixthly, if a will, traced to the possession of the testator, 135 and last seen in his custody, be not forthcoming on his death, the law, under ordinary circumstances, presumes that it has been destroyed by himself, animo cancellandi; and this presumption, which is obviously founded on good sense, must prevail, unless there be sufficient evidence to rebut it. The declarations of the testator, however, whether written or oral, and whether made before or at or after the execution of the instrument, furnish, in cases P. C. R. 320, 328; In re Hardy, 30 L. J., Pr. & Mat. 142. See Rules for Reg. of Ct. of Prob. in non-contentious business, Nos. 8, 9, 10. 6 5 Simmonds r. Rudall, 1 Sim. N. S. 115, 136, 137; Doe v. Catomore, 16 Q. B. 745; 20 L. J., Q. B. 728, S. C. * Steevens's Hospital v. Dyas, 15 Ir. Eq. R., N. S. 405, 420. 3 See Dench v. Dench, 46 L. J., P. D. & A. 13; L. R., 2 P. D. 60, S. C.; In re Duffy, I. R., 5 Eq. 506; and In re Sykes, 42 L. J., Pr. & Mat. 17; 3 Law Rep., P. & D. 26, S. C.; Moore v. Moore, I. R., 6 Eq. 166. The presumption, moreover, has been altogether set at naught in the case of a will made by an officer in actual military service, In re Farquharson v. Tweedale, 44 L. J., Pr. & Mat. 35. Sed qu. * Birch r. Birch, 6 Ec. & Mar. Cas. 581, per Sir H. Fust; Greville v. Tylee, 7 Moo. P. C. R. 327. 5 Sugden v. Ld. St. Leonards, 45 L. J., P. D. & A. 1; S. C. id. 49, in Ct., of App.; L. R., 1 P. D. 154, S. C.; Welch v. Phillips, 1 Moo. P. C. R. 299, 302, per Parke, B.; Finch v. Finch, 36 L. J., Pr. & Mat. 78; 1 Law Rep., P. & D. 371, S. C.; Johnson v. Lyford, 37 L. J., Pr. & Mat. 65; 1 Law Rep., P. & D. 546, S. C.; Podmore v. Whatton, 3 Swab. & Trist. 449; 33 L. J., Pr. & Mat. 143, S. C.; Dickinson v. Stidolph, 11 Com. B., N. §. 341, 357; Brown v. Brown, 27 L. J., Q. B. 173; 8 E. & B. 876, S. C.; In re Brown, 27 L. J., Pr. & Mat. 20; 1 Swab. & Trist. 32, S. C.; Wood v. Wood, 1 Law Rep., P. & D. 309; Cutto v. Gilbert, 9 Moo P. C. R. 143, per Dr. Lushington. 6 Sugden v. Ld. St. Leonards, L. R., 1 P. D. 154; 45 L. J., P. D. & A. 1 & 49, S. C.; overruling Quick v. Quick, 33 L. J., Pr. & Mat. 146; 2 Swab. & Trist. 442, S. C. . of this nature, cogent proof of his intentions.' In the event, too, of the testator having become insane after the will was made, the burthen of proving that it was destroyed by him while he was of sound mind will lie upon the party who sets up the revocation.2 Again, the finding of the will among the testator's papers, in which the signature has been cut out, raises a presumption that the mutilation was effected intentionally by the testator himself; and in such a case the will cannot be regarded as revived, though the signature has been again attached by gum to its original place, and the document, when discovered, was in that condition. The revo cation of a will by the testator was at one time considered to raise a primâ facie, though by no means a conclusive, presumption that the testator intended to revoke every codicil to it, but this presumption no longer prevails; and a codicil, however dependent it may be on the will, can now only be revoked in one of the methods prescribed by the Wills Act." 3 § 166. Seventhly, in the absence of any distinct intimation to 135 the contrary, the law presumes that every testator considers his estate sufficient to answer the purposes to which he has devoted it by his will; and consequently, in the event of any deficiency ari ing in the assets, all annuities and legacies will, primâ facie, be held to abate rateably. No doubt, this rule, like most others in the law, is open to certain exceptions; but in all cases the onus lies upon those who claim priority to furnish conclusive proof, by referring to the language employed, that the testator intended that the bequests should not stand on an equal footing. Again, 1 Whiteley v. King, 17 Com. B., N. S. 756; Keen v. Keen, 42 L. J., Pr. & Mat. 61; 3 Law Rep., P. & D. 105, S. C.; Sugden v. Ld. St. Leonards, L. R., 1 P. D. 154; 45 L. J., P. D. & A. 1 & 49, S. C. See, also, Saunders v. Saunders, 6 Ec. & Mar. Cas. 518; Williams v. Jones, 7 id. 106; Patten v. Poulton, 1 Swab. & Trist. 55; Eckersley v. Platt, 1 Law Rep., P. & D. 281. 2 Sprigge v. Sprigge, 38 L. J., Pr. & Mat. 4; 1 Law Rep., P. & D. 608, S. C. 3 Bell v. Fothergill, 2 Law Rep., P. & D. 148. Grimwood v. Cozens, 2 Swab. & Trist. 364; In re Dutton, 32 L. J., Pr. & Mat. 137; 3 Swab. & Trist. 66, S. C.; Medlycott v. Assheton, 2 Add. 229; Clogstown v. Walcot, 5 Ec. & Mar. Cas. 523. But see, In re Ellice, 33 L. J., Pr. & Mat. 27; Black v. Jobling, 1 Law Rep., P. & D. 685; 38 L. J., Pr. & Mat. 74, S. C. 5 Re Turner, 2 Law Rep., P. & D. 403, per Ld. Penzance. Miller v. Huddlestone, 3 M. & Gord. 513, 523, 524, per Ld. Truro; Brown property specifically bequeathed or devised is prima facie presumed to have been intended by the testator to pass to the legatee or devisee in its entirety; and this presumption will not be rebutted by a codicil, charging certain pecuniary legacies on all the testator's estates, both real and personal.' If, too, an annuity be bequeathed by will for an indefinite period, the law will presume, in the first instance, that it was intended to be given for the life of the annuitant; but this presumption is liable to be rebutted by proof, that the testator has used words which indicate an intention that the annuity should be granted, either in perpetuity, or for a fixed number of years.2 § 167. When a legacy is bequeathed to a person, who is also 136A named in the will as an executor, the law presumes, primâ facie, that it was given to him in that character; and consequently, if he declines to accept the office, he must relinquish all claim to the legacy, unless he can show from the language employed that the bequest was made to him independently of his character of executor, and solely as a token of personal regard. When, under the terms of a will, the consent of executors or trustees is rendered necessary to the validity of any act, the law presumes, in the absence of any express direction on the subject, that this discretionary power should be exercised by those only who undertake the duties of the office. An executor who has renounced, or a . Brown, 1 Keen, 275, 277; Thwaites v. Foreman, 1 Coll. 409, 414; Ld. Dunboyne v. Brander, 18 Beav. 313. Conron v. Conron, 7 H. of L. Cas. 168; Campbell v. M'Conaghey, I. R., 6 Eq. 20. 2 Yates v. Maddan, 3 M. & Gord. 532; Lett v. Randall, 2 Sm. & Giff. 83; 2 De Gex, F. & J. 383, S. C.; Stokes v. Heron, 12 Cl. & Fin. 161; Potter v. Baker, 13 Beav. 273; Blewitt v. Roberts, Cr. & Ph. 274; Hill v. Potts, 31 L. J., Ch. 380, per Wood, V.-C.; S. C. nom. Hill v. Ratley, 2 Johns. & Hem. 634; Sullivan v. Galbraith, I. R., 4 Eq. 582. 3 Stackpole v. Howell, 13 Ves. 421; In re Reeve's Trusts, L. R., 4 Ch. D. 841, per Jessel, M. R.; Harrison v. Rowley, 4 Ves. 216; Reed v. Devaynes, 2 Cox, M. R.; L. R., 4 Ch. D. 841, S. C. 'White v. M'Dermott, I. R., 7 C. L. 1. 2 trustee who has disclaimed, has obviously no right to interfere in the matter; and even without any formal renunciation or disclaimer an executor or trustee, who simply declines to accept the office or to act in the trusts, will thereby relieve the parties interested from the responsibility of obtaining his consent.' When executors are appointed by will, and the residuary estate is undisposed of, the law presumes, in the absence of evidence of an intention to the contrary, that the executors are trustees for the next of kin ; but if there be no next of kin, as where the testator is illegitimate, the presumption then is, that the executors may retain the property for their own use instead of its becoming forfeited to the Crown.3 On the subject of emblements, which is the old technical term, " emblavence de blet," for the profits of the growing crop, the courts recognise a very capricious presumption; for although the personal representatives of a man dying seised in fee of land are entitled to the emblements in preference to the heir, the law presumes, in the event of a devise of the land, that the testator intended them to pass to the devisee. This presumption may of course be rebutted by a specific bequest of the growing crops, or "farming stock," to another party; but the title of the devisee to them will not, it seems, be ousted by a mere disposition of all the testator's personal estate.' 4 § 168. When the word "children" is used in a will, the law presumes, primâ facie,—as it does when the same word is employed in the Statute of Distributions,8-that the term is limited to such children as are legitimate according to the law of England; and so strong is this presumption that it will be regarded as conclusive, unless there be something in the will itself to show clearly an in 1 White v. M'Dermott, I. R., 7 C. L. 1. 2 11 G. 4 & 1 W. 4, c. 40. 3 In re Knowles, 49 L. J., Ch. 625, per Malins, V.-C. 4 West v. Moore, 8 East, 343, per Ld. Ellenborough. 5 Cooper v. Woolfitt, 26 L. J., Ex. 310. 6 Evans v. Williamson, 50 L. J., Ch. 197, per Jessel, M. R.; L. R., 17 Ch. D. 696, S. C. 7 Cooper v. Woolfitt, 26 L. J., Ex. 310. 822 & 23 Car. 2, c. 10; In re Goodman's Trusts, L. R., 14 Ch. D. 619, per Jessel, M. R.; 49 L. J., Ch. 805, S. C. But this case has been reversed by Cotton and James, Ld. Js., in Ct. of Ap., diss. Lush, L. J., 50 L. J., Ch. 425; L. R., 17 Ch. D. 226, S. C. Therefore qu. the same 3 5 tention on the part of the testator to provide for natural children.' In this last event, such a child, though en ventre sa mère at the date of the will, has been held to be included in the term. Again, the word "cousins," when used in a will, has been interpreted to mean first cousins only; "first cousins" have primâ facie been defined as cousins german or persons having the same grandfathers; and "second cousins" have been held to mean persons having great-grandfathers. Neither of these last two terms will, in the absence of an evident intention, be construed as including the children or grandchildren of first cousins, who are commonly called first cousins once or twice removed. So, when a testator uses the word "family" he will be presumed, primâ facie, to mean the children, if any, of the person whose family is spoken of, and there must be a special context to give the word a different meaning. So, also, the word "moneys," when used in a testamentary instrument, will, in the absence of anything in the instru ment to indicate a different intention,' be confined to ready money actually in hand; and the word "furniture "unless under special circumstances will not include tenant's fixtures. 1o the term "debentures" include "debenture stock." Again, the term "unmarried" will, unless otherwise explained by the context, be held to mean " without ever having been married,” 1 Dorin v. Dorin, 7 Law Rep., H. L. 568; 45 L. J., Ch. 652, S. C., Houstoun, L. R., 10 Ch. D., 236; Boyes v. Bedale, 1 Hem. & M. 799; Megson v. Hindle, L. R., 15 Ch. D. 198, per Ct. of App. See Laker v. Hordern, L. R., 1 Ch. D. 644. Proc.; Ellis v. 2 Crook ". Hill, L. R., 3 Ch. D. 773, per Hall, V.-C. 9911 9912 Neither will per Dom. Re Parker, Bentham v. Wilson, L. R., 15 Ch. D. 528, per Jessel, M. R.; S. C. affd. on app., L. R., 17 Ch. D. 262; and 50 L. J., Ch. 639. Re Bonner, Tucker v. Good, L. R., 19 Ch. D. 201, per Chitty, J., 51 L. J., Ch. 83, S. C. 5 Re Parker, Bentham v. Wilson, L. R., 15 Ch. D. 528, per Jessel, M. R.; S. C. affd. on app. L. R., 17 Ch. D. 262; and 50 L. J., Ch. 639. 6 Pigg . Clarke, 45 L. J., Ch. 849, per Jessel, M. R. See Re Cadogan, Cadogan v. Palagi, L. R., 25 Ch. D. 154; 53 L. J., Ch. 207, S. C. 8 Langdale v. Whitfield, 4 Kay & J. 426, 432, per Wood, V.-C.; Williams v. Williams, L. R., 8 Ch. D., 789, 793, per Baggallay, L. J.; 47 L. J., Ch. 857, 858, S. C. 9 Paton v. Sheppard, 10. Sim. 186. 10 Finney v. Grice, L. R., 10 Ch. D. 13, per Jessel, M. R. 11 Lane, in re, L. R., 14 Ch. D. 856. 12 Dalrymple v. Hall, L. R., 16 Ch. D. 715; 50 L. J., Ch. 302, S. C. |