Edward John Gregge Hopwood, - Appellant; Frank George Hopwood, - Respondent

JurisdictionEngland & Wales
Judgment Date10 August 1859
Date10 August 1859
CourtHouse of Lords

English Reports Citation: 11 E.R. 290

House of Lords

Edward John Gregge Hopwood
-Appellant
Frank George Hopwood
-Respondent

Mews' Dig. x. 1287, 1320; xv. 276, 450. S.C. 29 L.J. Ch. 747; 5 Jur. N.S. 897; and, below, 5 W.R. 331; 22 Beav. 488. Commented on, as to presumption against double portions, in In re Pollock; Pollock v. Worrall, 1885, 28 Ch. D. 555; In re Lacon; Lacon v. Lacon (1891), 2 Ch. 482. As to republication of will by codicil cf. Sidney v. Sidney, 1873, L.R. 17 Eq. 65.

Wills - Legacy - Settlement - Ademption - "Farther."

728] EDWARD JOHN GREGGE HOPWOOD",-Appellant; FRANK GEORGE HOP-WOOD,-Respondent [July 29, Aug. 1, 10, 1859]. [Mews' Dig. x. 1287, 1320; xv. 276, 450. S.C. 29 L.J. Ch. 747; 5 Jur. N.S. 897; and, below, 5 W.R. 331; 22 Beav. 488. Commented on, as to presumption against double portions, in In re Pollock; Pollock v. Worrall, 1885, 28 Ch. D. 555; In re Lacon; Lacon v. Lacon (1891), 2 Ch. 482. As to republication of will by codicil cf. Sidney v. Sidney, 1873, L.R. 17 Eq. 65.] Wills-Legacy-Settlement-Ademption-"Farther." The presumption of law is against double portions; -where a sum of money is given by the will of a parent to a particular child, and the like sum is afterwards secured by a settlement on the marriage of that child, there is a presumption in favour of the ademption of tie legacy, but this presumption may be rebutted by evidence of intention to the contrary. The burden of proof of intention is on the person claiming the double portion. It is not necessary that the legacy should be paid in order that it may be adeemed. Though a codicil for certain purposes confirms a will, and brings it down to the date of the codicil, it does not necessarily make the will operate as if it had been originally made at the date of the codicil. A father made his will, giving to each of his three younger children 5000. 290 HOPWOOD V. HOPWOOD [1859] VII H.L.C., 729 On the marriage of one of them, a daughter, he paid to the husband 2000. By a codicil he declared that sum to be in part satisfaction of the 5000. One of his younger sons, F., married. On that marriage, the father entered into a covenant that he would cause to be paid to the trustees of the marriage, within twelve months after his death, the sum of 5000, with interest in the meantime, at the rate of five per cent., such interest to be employed in the payment of premiums on life policies. By a codicil made after the date of this settlement, the testator recited what he had given by his will to each of his two younger sons, and directed his trustees to raise " a farther sum of 7000 " for each of them, and to hold such farther sum on the same trusts as those of the 5000. The testator afterwards raised a sum of 5000, with which he purchased a LieutenamVcolonelcy in the Guards: for his other younger son, H., and he then made a codicil, declaring that this sum, so laid out, was to be taken by H. in satisfaction of the legacy given him by the will: Held, that these circumstances did not show an intention on the part of the testator rebutting the presumption that the 5000 given by the will to F. were adeemed by the settlement. Meaning of the word " farther." This was an appeal against an order of The Master of the Kolls, which had been confirmed on appeal. Kobert Gregge Hopwood, Esq., by his will, dated 29th [729] April, 1829, devised his real and personal estates to trustees, on trust (among other things) to raise the sum of 5000 a piece for his two younger sons, Frank and Hervey, and his daughter Mary, " for their portions," on attaining twenty-one, with interest, from the time of his decease to the time of payment; and in case his son Frank should not at the time of his decease have taken a bachelor's degree at the university, and should not then have attained twenty-four, to raise, " in addition to the interest of his portion," 50 per annum till one of those events should happen; and to raise, " in addition to the portion," such a sum for his son Hervey as would purchase a cornet's or ensign's commission; and if before his said son attained twenty-one he should be desirous, and an opportunity should offer of purchasing a lieutenant's commission, they should raise so much of the 5000 as should be necessary for that purpose, the interest on the sum so raised to be no longer payable. On the 7th July, 1834, the testator made a codicil, by which he revoked that part of his will which gave his daughter Mary the sum of 5000, he having, on her marriage with Lord Molyneux, paid into the hands of his lordship the sum of 2000 in part payment of the said portion, and he bequeathed to her the farther sum of 3000 to complete his original intention; and he thereby ratified and confirmed his will. On the 26th May, 1835, in contemplation of the marriage of his son Frank with Lady Elinor Mary Stanley, a settlement was made, by which the testator covenanted that his heirs, executors, etc. should, within twelve months after his decease, pay unto the trustees of the settlement the sum of 5000, and in the meantime he covenanted to pay them 5 per cent, interest on that sum, and it was agreed among the parties to the settlement that [730] the trustees should, with that interest, keep on foot certain policies of assurance therein mentioned, and pay the surplus to the husband and wife for life. On the 19th February, 1850, the testator executed a second codicil, in which, after reciting the provisions in his will as to the 5000 for each of his two sons, he directed his trustees to raise " two farther sums of 7000 each," one of which sums should be held by them in trust for Hervey absolutely as in the will declared of and concerning the legacy of 5000, and the other in the same manner for Frank, as in the will declared " of and concerning his said legacy of 5000 thereby given and bequeathed for his benefit;" and he directed his trustees to raise the legacies therein contained by the same means as directed in the will of and concerning the portions or legacies thereby given and bequeathed; and he thereby ratified and confirmed his will and first codicil, except as thereby altered. On the 16th April, 1851, the testator made a third codicil, by which, reciting that he had, since the date of the second codicil, raised the sum of 5000, with which 291 VII H.L.C., 781 HOPWOOD V. HOPWOOD [1859] he had purchased for his son Hervey a lieutenant-colonelcy in the Guards, and which sum might remain a charge on his property at his death, he declared it to be his intention that the sum of 5000 so invested in such purchase should be accepted by his said son in satisfaction of the legacy of 5000 given in the will, and he thereby revoked and cancelled that legacy. In all other respects, he ratified and confirmed his will and the two codicils. The testator died in July 1854. The executors duly paid to the Respondent the amounts stated in the will and codicil, with interest, but the Respondent claimed, as a debt, the amount secured by the settlement. The Appellant, the testator's eldest son, on whose estate this claim was a [731] charge, filed his bill in Chancery on the 29th December, 1856, praying that the Respondent might be ordered to pay the sum of 5000 and interest to the trustees of the settlement, and for general relief. The Respondent put in his answer, and on the 23rd July, 1856, the cause was heard. The Master of the Rolls made a decree, by which it was declared that the legacy under the will was not adeemed by the covenant in the settlement, but that the Respondent was entitled to the benefit of both (22 Beav. 488). This decree was taken by appeal to the Lords Justices. Their Lordships did not agree in opinion. Lord Justice Knight Bruce sustained the opinion of the Master of the Rolls. Lord Justice Turner intimated a different opinion. The original decree stood affirmed (26 Law Jour. Chan. 292). The present appeal was then brought. The Attorney-General (Sir R. Bethell) and Mr. Karslake for the Appellant.-The first mistake of the Master of the Rolls in this case was that he treated the whole testamentary disposition as if it had been posterior to the covenant (22 Beav. 492, 494) ; whereas, in fact, the codicil thus relied on as showing addition and contradicting ademption, was made the year before the advance to Hervey Hopwood, and therefore could not supply the argument which the Master of the Rolls drew from it. The presumptio juris in a case of this kind is against double portions; no doubt that is capable of being rebutted by evidence, but the evidence to rebut it must be clear and undoubted. The general nature of the disposition of the property must here be looked at, and that shows no intention of the testator to create this added charge on...

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