1840.-Seton v. Smith.

the settlement was made, the two sums of stock were [*64] supposed to belong to the wife; and, by one and the same deed, the sum of 5,000%, which was the wife's absolute property, was given up in favor of the children, and the two sums of stock were settled on the husband and the children.

The children, therefore, cannot claim the benefit of the release without making good the rest of the settlement: for it is an invariable rule of this court, not to allow a party to claim both under and against the same instrument.

It being then clear that Mr. Seton, before the indorsement was made on the settlement, had a remedy by way of election, the only question is, whether he is barred of that remedy by the memorandum? Now that memorandum was made without any contract and without any consideration for it; and it does not contain any trace of an intention, on the part of Mr. Seton, to relinquish any remedy or right which he then had. The object of it was nothing more than to remove a cloud that otherwise would have rested on the title to the sums of stock; and, consequently, it would be gross injustice to hold that it prejudiced his rights.

Mr. Neate appeared for other parties.

THE VICE-CHANCELLOR :--At the time when the settlement was executed, the 1000l. consols, and the 3,500 francs of French stock, were subject to certain trusts declared by the will of Josias Cocke, under which Mrs. Seton was entitled to the income of those sums for her life, and, after her death, the capital was to belong to her children. It was, however, then sup[*65] posed that those two sums were *the absolute property

of Mrs. Seton; and under that impression, the settlement was made by which it was intended that Mr. Seton should take a certain interest in a portion of the income of the stock. By the same settlement, Mrs. Seton released her late father's real estates, of which she was then tenant for life, with remainder to her children in tail, from the sum of 5,000l., with which they stood charged under her father's will, and to which she had be

1840.-Seton v. Smith.

come absolutely entitled under the will of her mother. That being the state of the case, it is perfectly plain that Mr. Seton has a right to say to his children: "If you will have the benefit of the release, you must give me what I claim under the settlement."

It was said, however, that Mr. Seton, after he was apprised of the mistake in the settlement, signed the indorsement on it, and that he thereby waived his right to compensation by way of election. But no one, I think, can look at the indorsement without seeing that it is nothing more than an admission that there was a mistake in the settlement, with respect to the two sums of stock; and that the sole object of it was to remove the doubts, which otherwise would have existed, as to the trusts to which those sums of stock were subjected. It is in as naked a form as can be; and contains no representation of intention, on the part of Mr. Seton, to waive any right which he might have under the settlement.

The consequence is that Mr. Seton now has the same rights. under the settlement, as he had on the execution of it; and, therefore, his children must be put to their election.

*Declare that the children are bound to elect whether [*66] they will take against or under the settlement, and refer

it to the Master to inquire and state which will be most for their benefit.

Testator, by his will, gave 500l. to A. and 1,000l. to B. to be paid within 12 calendar mouths after his wife's death. By a codicil of the same date, he reduced those legacies to 300l. and 500l. respectively. Afterwards he formally republished his will. By a second codicil, after reciting the bequest in his will of 500l. to A., he revoked that bequest, and, in lieu of it, gave A. 300l., to be paid at the same time as the revoked bequest was directed by his will. By a third codicil, after reciting that, by his will, he had given to R. 3,000l., he reduced that legacy to 2,000l. ; and then directed that the 3007. given to A. as well as the 1,000 given to B., should not be paid till twelve months after the death of his wife. Held, taking all the instruments together, that B. was entitled to a legacy of 1,000l.

JAMES REEVE, by his will, dated the 21st of December, 1821, gave, amongst other legacies and annuities, the sum of 500l. to Robert Bass; and, to his wife's nephew, Frederick Charles Ganning, the sum of 1,000l.; and he directed that those legacies should be payable within 12 calendar months next after the decease of his wife, Frances Reeve: and he gave all his real and personal estate, subject to the payment of the legacies and annuities, to the defendant absolutely.

The testator made a codicil bearing the same date as his will, but written on a separate sheet of paper, which was attached to his will. It was partly as follows: "In consequence of the depression of all landed property, I give my said wife an annuity of 6007. per annum, only, for life, instead of the 7001. by my said will bequeathed to her. I also give to Mr. Robert Bass [*67] *300%, and to Frederick Charles Ganning, 500l. only, instead of the legacies of 500l. and 1,000l. by my said will respectively bequeathed to them."

On the 28th of October, 1824, the testator re-signed, re-sealed and re-published his will, in the presence of three attesting wit

nesses.

The testator made another codicil, which was dated the 30th of November, 1825, and was partly as follows: "This is a codicil to the last will and testament of me, James Reeves, of Halesworth, in the county of Suffolk, Esq., which will bears date the

1840.-Grand v. Reeve.

21st day of December, 1821."***"And whereas I have also, in and by my said will, given and bequeathed unto Robert Bass, the sum of 5002, to be paid within 12 calendar months next after the decease of the said Frances, my wife: now I do hereby revoke the said last-mentioned bequest, and, in lieu and stead thereof, I do hereby give and bequeath the sum of 300l. only, to be payable and paid at the same time, and in such and the like manner as the said bequest hereby revoked was directed in and by my said will, and, in other respects, I do ratify and confirm my said will."

The testator made another codicil, which was dated the 17th of February, 1826, and therein expressed himself as follows: "Whereas, by my will dated the 21st day of December, 1821, I have given my brother, Benjamin Reeve, the sum of 3,000l.; now, by this, my codicil to my will, I do hereby revoke the said bequest, and, in lieu and stead thereof, I do hereby give and bequeath, to the said Benjamin Reeve, the sum of 2,000l. only, to be paid within 12 calendar months after the decease of the said Frances, my wife; and I do *further direct that [*68] the legacy of 3001. given to Robert Bass, as well as the 1,000l. given to Frederick Ganning, shall not be paid, likewise, till 12 months after the decease of the said Frances Reeve, my wife."

The testator died on the 10th of December, 1826. Frederick Charles Ganning died in May, 1829. The plaintiff was his personal representative. Frances Reeve died in July, 1838.

The question was, whether the plaintiff, as Ganning's representative, was entitled to be paid 1,000l. or 5007.

Mr. Knight Bruce and Mr. E. Montagu, for the plaintiff. It is not necessary, in this case, to decide whether the republication of the will in 1824, republished the antecedent codicil; for it appears, from the subsequent codicil, that the testator considered that the republication had annihilated the intermediate codicil. By that subsequent codicil, the testator recites that he had, by his will, given to Bass 500%, to be paid within 12 calendar months from the decease of his wife; and then he revokes that

1840.-Grand v. Reeve.

bequest, and, in lieu thereof, gives him 3007. only, to be paid at the same time and in such and the like manner as the bequest thereby revoked was directed, by his will, and, in all other respects, he ratifies and confirms his said will. Then, in the codicil of 1826, he directs that the legacy of 3001. given to Bass, as well as the 1,0001. given to Ganning, shall not be paid till twelve months after the death of his wife. So that he there refers to the existing legacy to Bass; and, therefore, he must be taken to refer to what he considered to be the existing legacy to Ganning. Taking, then, the whole of the instruments together, the [*69] fair conclusion is that he considered the first codicil to be inoperative; and that his intention was that Bass should take 3001, and that Ganning should take 1,000%.

Mr. Jacob and Mr. Blunt, for the defendant:

The will and the first codicil were written on separate sheets of paper; but they were attached to each other: therefore the republication in 1824, was a republication of the codicil as well as of the will. We are not to say that a codicil is revoked, because, in other testamentary papers, there is an indication that the testator did not correctly recollect the contents of that codicil. As far as respects Bass, the codicil of 1825 was surplusage: but are we to say that, on that account, the prior codicil was revoked? Then comes the last codicil; with respect to which it may be observed that it contains no words of gift, but only a mistaken reference to the will with regard to Ganning. Now a mistaken reference does not amount to a gift, unless there are either words of gift, or something showing an intention to give. The testator's sole object in making that codicil was to postpone the payment of the legacies (which object, indeed, he had before accomplished,) until the end of 12 months after the death of his wife. That codicil is merely negative: it says that the legacies shall not be paid, &c. That does not make a new gift; it must be looked at as an inaccurate reference to the will. Gordon v. Hoffman;(a) Gordon v. Lord Reay;(b) Crosbie v. Macdoual.(c)

(a) Ante, Vol. VII. p. 29.

(c) 4 Ves. 610.

(b) Ante, Vol. V. p. 274.