Mr. Richards, Mr. West, and Mr. Bacon, for other parties.

1840.

The LORD CHANCELLOR.

This case involves the consideration of much of the doctrine upon which I acted in Powys v. Mansfield (a), and in so far as such doctrine shall be found applicable to the facts of this case, it must govern my decision. I have not seen any reason to doubt the accuracy of such doctrine, and shall consider it as the law of this Court, unless otherwise instructed by the authority of the House of Lords.

Edmund Lockyer, the testator, had two children, a son Edmund, the interests of whose children are vested in the Appellants, and Eleanor Margaret, a daughter, who had three children, Eleanor, Frederick, and Edmund, the Respondents.

By his will, in 1823, the testator bequeathed 5000%. to trustees, upon trust, subject to an annuity of 40l. per annum for his daughter Eleanor Margaret, for her life, to pay the interest for his grandson Frederick's maintenance till twenty-one, and then to him for life, and after his death to divide the principal equally amongst his children; that is to say, sons who should attain twenty-one or die under that age, leaving children, and daughters at twenty-one or marriage, with maintenance in the meantime; and if there should be no such children, the 5000l. was to fall into his residuary personal Another legacy of 5000l. was given to trustees, upon similar trusts, for the benefit of his grandson Edmund and his children. Another legacy of 6000%. was given

estate.

(a) 3 Mylne & Craig, 359.

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given to trustees, upon similar trusts, for the benefit of his granddaughter Eleanor and her children,—her life estate to be enjoyed by her for her separate use; and the residue of his estate he gave equally between his six grandchildren, being the children of his son and of his daughter.

In 1831 the grandson Frederick married, and, by his marriage settlement, to which the testator was a party, but to which Frederick's father was not a party, after reciting the marriage agreed upon, and that the testator, as the grandfather of Frederick, had agreed to invest a sufficient sum to purchase 2000l. 3 per cent. Reduced, upon the trusts and provisions after declared, and that such sum had accordingly been purchased in the names of trustees, the trusts were declared to be for Frederick for life, and after his death for the intended wife for life, and then for the children, as the father and mother or the survivor should appoint, or, in default of appointment, equally, and in default of children, for Frederick absolutely.

In the same year, 1831, Edmund married; and, the settlement upon his marriage, to which, as in the former instance, the grandfather was, but the father was not a party, recited that, upon the treaty for the marriage, the testator, the grandfather, had agreed, on the part of his grandson, to convey certain premises for the purposes after mentioned, and to execute a bond for securing 3000l. to trustees, payable six months after his death, which sum was to be held by them upon the trusts of the settlement; and by the settlement the lands and premises were settled to the use of Edmund, the husband, for life, remainder to the wife for life, remainder to the children as they or the survivor should appoint, and in default of appointment to the children

equally,

equally, and upon failure of children to Edmund in fee; and similar trusts were declared of the 3000l., which became due six months after the testator's death.

In the same year, 1831, the daughter, Eleanor, married; and the Master's report states a long correspondence between the testator, the grandfather, and the father of the intended husband, by which he, the testator, bound himself to lay out, in the names of trustees, 40007. in the public funds, the interest of which was to be paid to himself for life, and after his death to the husband and wife and the survivor for life, and then to their issue equally, and if there should be no children, the principal to be subject to the wife's appointment; and he further agreed to pay to them 150l. per annum for the first three years, and 100l. afterwards during his own life. Nothing further was done during the life of the testator, except that he paid the 150l. per annum; and he died in 1836.

In answer to an inquiry as to the manner in which the grandfather had acted towards these grandchildren, the Master found, from the statement of their father, that the three children had been maintained by him, the father; except that, as to Frederick, the grandfather, being desirous that he should go into the church, had agreed to pay his college expenses, and had paid the tailor's bill, and part, but not all, of his personal expenses; and that, from the time of his ordination to that of his marriage, he paid him 2007. per annum, and, after his marriage, 100%. per annum: That as to Edmund, being desirous that he should be of the profession of the law, he paid the stamp on his articles, and the premium to the solicitor to whom he was articled, and some small sums as pocket money; and, after he had served his time, paid the costs of his admission as an attorney, and

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his

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his fee to a conveyancer, and made him an allowance for his lodging and maintenance in London, but which was very inadequate for those purposes: That, as to the LOCKYER. granddaughter Eleanor, the testator did not defray any of the expenses of her maintenance or education up to the time of her marriage: That he was in the habit of constant intercourse with all the grandchildren, making them presents of money and other gratuities, and directing and controlling them with an authority equal to that of their father: that he was referred to on the treaties of the respective marriages of the grandchildren, as a person whose consent was indispensably necessary, and as the principal party to the pecuniary arrangements; but that all such children lived, at the same time, in intimate and affectionate intercourse with their parents, and that the father was never, until, their marriage, wholly exempt from the costs of their maintenance and support; and that, upon the marriage of Eleanor, he agreed to make her an allowance of 50l. per annum for three years, which he paid.

Upon this state of circumstances, which was found by the Master's report, the Vice-Chancellor, upon further directions, declared that the provisions made by the testator upon the marriages of Frederick, Edmund, and Eleanor were not ademptions or satisfactions of their respective legacies of 5000l. and 60007. by the will bequeathed for the benefit of them and their respective children. By the appeal, the propriety of that decision is challenged.

All the decisions upon questions of double portions depend upon the declared or presumed intention of the donor. The presumption of equity is against double portions, because it is not thought probable, when the object appears to be to make a provision,

and

and that object has been effected by one instrument, that the repetition of it in a second should be 'intended as an addition to the first. The second provision, therefore, is presumed to be intended as a substi tution for, and not as an addition to, that first given; but, when the gift is a mere bounty, there is no ground for raising any presumption of intention as to its amount, although such amount be comprised in two or more gifts.

The first question to be asked is, whether the sums given are to be considered as portions, or as mere gifts; and, upon this subject, certain rules have been laid down, all intended to ascertain and to work out the intention of the giver. In the case of a parent, a legacy to a child is presumed to be intended to be a portion; because providing for the child is a duty which the relative situation of the parties imposes upon the parent: but that duty, which is imposed upon a parent, may be assumed by another, who, for any reason, thinks proper to place himself, in that respect, in the place of a parent; and, when that is so, the same presumption arises against his intending a first gift to take effect as well as a second; because both, in such cases, are considered to be portions. Whether the donor had, for this purpose, assumed the office of a parent, so as to invest his gift with the character of a portion, may be proved by extrinsic evidence, such as the general conduct of the donor towards the children, or by intrinsic evidence from the nature and terms of the gift. If the former be alone relied upon, it may prevail, although it should appear that the donor did not assume all the duties of a parent, or effectually perform those which he had undertaken the question being, merely, whether the facts proved fairly lead to the conclusion that he intended to provide a portion for the child, and not merely to bestow

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