Ex parte Pye 18 Vesey Junior 141, 34 ER 271

Report Date: 1811

PYE, Ex parte. DUBOST, Ex parte. April 26th, 29th, May 27th, June 13th, 28th, 1811. [SC 2 Wh. & T. L. C. (7th ed.) 366. See Platt v Platt, 1830, 3 Sim. 512 Edwards v Jones, 18 3 6, 1 My. & Cr. 237 Powys v Mansfield, 1836-37, 6 Sim. 561; 3 My. & Cr. 367; Walker v Jeffreys, 1842, 1 Hare, 354; Meek v Kettlewell, 1842, 1 Hare, 470; Kirk v Eddowes, 1844, 3 Hare, 519; Kekewich v Manning, 1851, 1 De G. M. & G. 190; Richardson v Richardson, 1867, LR 3 Eq. 692; Penfold v Mould, 1867, LR 4 Eq. 565; Lord Chichester v Coventry, 1867, LR 2 H. L 83; Warriner v Rogers, 1873, LR 16 Eq. 350; Smith v Conder, 1878, 9 Ch. D. 172; Bennet v Bennet, 1879, 10 Ch. D. 477; Montagu v Earl of Sandwich, 1886, 32 Ch. D. 537; Harding v Harding, 1886, 17 Q. B. D. 446; In re Hamlet, 1888, 38 Ch. D. 190; In re Lacon, [1891] 2 Ch. 492; In re Ashton, [1897] 2 Ch. 577.]

The presumption of intention to satisfy a legacy by a portion to a child, from a , or a person placing himself , not raised upon a legacy, not described as a portion; the legatee, reported to be the testator's natural daughter, described, not so, but as the daughter of another man. Direction for sale or transfer of stock without attention to the rise or fall: the party must take it, as it happens at the time of appropriation. William Mowbray by his Will, dated the 10th of April 1806, giving his wife the residue of his property after payment of his debts, except the sums after mentioned, among other legacies gave as follows I give and bequeath the sum of £4000 sterling to Louisa Hortensia Garos daughter of John Louis Garos formerly of Berwick Street Westminster: the like sum of £1000 to Emily Garos her sister and £4000 to Julia Garos her other sister; and in case of the death of one of the three I desire that the legacy may be divided equally betwixt the two surviving sisters; and in case of the death of two of them I desire the whole £12,000 may be paid to the surviving sister." The testator also gave to John Louis Garos £600; and to Marie Genevieve Garos his wife, the sum of [18-Vesey Junior-141] £2500 sterling for her own use, and over which her husband is not to have any power: he having lived abroad for many years; and she in this country; and no correspondence having passed between them during that time. Her own receipt shall be a sufficient authority to my executors for paying her the above legacy." The testator died on the 8th of June 1809. His became a lunatic: the petitioner Pye was the - Committee under the Commission; and upon her death took out administration to her, and administration de bonis non to the testator. The Master's Report stated from the examination of the petitioner Pye, that Louisa Hortensia, Emily, and Julia, Garos were the three natural daughters of the testator by Marie Genevieve Garos the wife of John Louis Garos; and that since the date of the Will Louisa Hortensia Garos married Christopher Dubost; and the testator advanced as a portion for her, which by the settlement appeared to have been received by Christopher Dubost, the sum of £3000; and it being contended, that the said sum of £3000 ought to be considered as an advancement, and in part satisfaction of the legacy of £4000, and the whole, legacy being claimed on the part of Christopher Dubost and his wife (who were both represented to be residing abroad), the Master did not allow the claim. As to the legacy of 2500 to Marie Genevieve Garos the Report stated from the same examination, that since the date and execution of the Will the testator caused an annuity to be purchased in France, to which country she had retired for her life, and laid out in such purchase £1500; and, it being contended by the petitioner Pye, [18-Vesey Junior-142] that the said sum of £1500 ought to be deducted from the legacy of £2500, as being an advancement, and in part satisfaction, and the whole legacy being claimed by the legatee, then resident abroad, the Master had not allowed such claim; but left it open to the party to prosecute, when in a situation to do so. By a farther Report the Master found as to the French annuity, that by a letter, written by the testator to Christopher Dubost in Paris, on the 25th of November 1807, the testator authorized him to purchase in France an annuity of £100 for the benefit of the said Marie Genevieve Garos for her life, and to draw on him for

18 Vesey Junior 143, 34 ER p272 £1500 on account of such purchase; and under that authority Dubost purchased an annuity of that value; but that, as she was married at the time, and also deranged, the annuity was purchased in the name of the testator; and the testator sent to Dubost by his desire a power of attorney authorizing him to transfer to Marie Genevieve Garos the said annuity, dated the 10th of June 1808. The Report farther found upon the affidavit of Dubost and the copy of the deed, that the first intimation he received of the death of the testator, who died in June 1809, was in November 1809; and that, in ignorance of such death Dubost on the 21st of October 1809, exercised the power, vested in him" by executing to Marie Genevieve Garos, her late husband being then dead, and she of sound mind, a deed of gift of the said annuity; and the Master found, that by the Law of France, if an attorney be ignorant of the death of the party, who has given the power of attorney, whatever he has done, while ignorant of such death, is valid. The Master therefore stated his opinion, that the annuity was no part of the personal estate of William Mowbray. [18-Vesey Junior-143] The first petition, prayed, that so much of the Report as certifies the French annuity to be no part of the testator's personal estate may be set aside; and that it may be declared, that the said annuity is part of his personal estate. The other petition, by Dubost and his wife, prayed a transfer of £3 per cent. Dank Annuities in satisfaction of £1000 of the legacy; and that so much of the Bank. Annuities as will be sufficient to raise £3177, 3s. 6d. the residue of the said legacy and interest may be sold, & c. An affidavit was offered by Dubost, that upon the treaty of marriage the testator assured him, that, independent of the £3000 he had already bequeathed her £4000 and Dubost might depend Upon his not altering it. A letter was also produced to the testator from Dubost, previous to the marriage, stating, that he would not believe the information he had received, that the testator, being asked, whether he would remember the young ladies in his Will, answered" You cannot expect that"; that he had said to Mrs. Dubost, that he did not see, why there should be a difference between the sisters; and asking, if according to the custom in France, he would give besides the portion £100 to be laid out in jewels, & c. This letter was found after the testator's death among his papers. Sir Arthur Piggott, Mr. Richards, Mr. Wingfield, Mr. Horne, and Mr. Wear, for different parties, in support of the first Petition. The French annuity being purchased in the testator's name, and no third person interposed as a trustee, the interest could not be transferred from him without certain acts, which were not done at the time of his death. It was therefore competent to him during his life to change [18-Vesey Junior-144] his purpose, and to make some other provision for this lady by funds in this country; conceiving perhaps, that she might return here. The authority, given to purchase this annuity, could not have been enforced against him during his life by a person, claiming as a volunteer: nor can it be established against his estate after his death: the act, which would have given the benefit of it against the personal representative, not having been completed. (Cotteen v Missing, 1 Madd. 176.) Where a question is to be decided by a foreign Law, the first step is an inquiry by the Master, to ascertain, what is the Law of that Country. With regard to the other petition, and the objection to the letter, offered as evidence, the circumstances resemble those of Shudal v Jekyll (2 Atk. 516) before, Lord Hardwicke, Powel v Cleaver (2 Bro. C. C. 499), before Lord Thurlow, and Trimner v Bayne, (1) before your Lordship; and the conclusion is, that the evidence is admissible. Lord Hardwicke's opinion was, that this rule as to satisfaction is not confined to the case of a parent. It is true, it does not apply to a more stranger, standing in no relation, natural or civil, either as a legitimate, adopted, or natural child: but it applies to any person, standing in loco Parentis, equally as to the parent. The presumption was repelled in Shudal v Jekyll by the evidence; which was held to be admissible; and proved, that the testator had no intention of limiting his bounty to the portion he had given on the Plaintiff's marriage; declaring, that he would leave her something by his Will; but would not be put under any obligation to do it: the evidence [18-Vesey Junior-145] therefore contradicting the supposed intention to substitute the portion for the legacy. The case of Powel v Cleaver certainly had strong circumstances, admitting argument and Lord Thurlow, finding the legatee a mere stranger to the testator,

18 Vesey Junior 146, 34 ER p273 who, though undoubtedly he provided a portion for her on marriage, stood in no relation to her, and could not be considered as having taken upon him the character, of parent, determined against her claim of a double provision. Trimner v Bayne was the case of a provision for a natural daughter; which has been considered as a solid distinction; and your Lordship decided that case with great attention, and upon a full review of the authorities. Upon the evidence it is impossible to deny the intention to make a provision at least for an adopted child, whom the testator had educated; and that there was an ulterior purpose in his mind. This is the same species of case as Shudal v Jekyll; in which the provision by the Will, accompanied with the declared intention of the testator to do something more for his niece, justified Lord Hardwicke's decision; and the Same principle, that governed that case and Trimner v Bayne, though with a different effect, must be applied to this: the case of a person, treated by the testator as a child, adopted and educated by him, standing upon the evidence of this letter in loco Parentis and Filiœ; having from the infancy of these children acted as their parent; and therefore as much within the rule as the actual relation of parent and child; and the circumstance, that the legacy is given over upon the contingency from one child to another, cannot prevent its application. The letter of Dubost, which is clearly evidence, is decisive. It is the letter of a person, treating upon the subject of his proposed [18-Vesey Junior-146]marriage with the testator, as her parent, and also as having made a provision for her by his Will. The circumstance, that this letter, which came out of the testator's papers after his death, had been kept by him, the settlement following immediately upon it, is remarkable. The Master's Report therefore is right; and the second petition must be dismissed. Sir Samuel Romilly and Mr. Bell, in support of the second petition (referring, in opposition to the other petition, to the present Law of France, declaring, that, if the mandatory is unacquainted with the death of the mandant, or any other cause, which put an end to the mandate, whatever he has done, while he was so unacquainted, is valid). It cannot be disputed, that the advance of a portion by a parent on the marriage of his child is a satisfaction of a legacy, either the whole, or part; and that, if the testator, though not the natural or legitimate father, has placed himself in loco Parentis, the same consequence will follow. The difference consists in the application of that principle; and the question is, whether the testator gave this legacy as to his child; which must be made out: otherwise the presumption of satisfaction cannot arise. In no case has the Court proceeded on any other supposition than that the legacy was given to the legatee as a child. If a legacy was bequeathed to a child, with whom the testator had then no connection, but afterwards married the mother, took that child as his adopted child, and gave it a portion as such, the legacy not being given in the same character, the portion would not be a satisfaction: the clear conclusion, from all the authorities being, that they must, be given in the same character. [18-Vesey Junior-147] In this case the legacy clearly is not given to the legatee as the child of the testator; and no evidence can be received to shew, that it was given to her in that character; the Will containing an express statement by way of description certainly, that she is the child of another man. The objection to the letter, as evidence, is, that it is produced directly to contradict the Will'; which declares her to be the daughter of another. If however it can be received, the fair inference is, that she was to have both the legacy and the portion. It is a letter from the proposed husband; suggesting to the testator, that he ought besides the portion to give this lady a legacy; and representing, that he could not believe, as it was said, that he intended the contrary. The testator leaves the legacy standing; keeping the letter; which must have drawn to his attention, that besides the portion he had given her a legacy. The fair inference is, that the letter had its effect; inducing him to make no alteration in the Will, but to leave the legacy standing. How is that to be otherwise accounted for? Can it be conceived, that this testator was acquainted with these decisions; and thence collected, that upon this doctrine of satisfaction it was unnecessary for him to make the alteration? The case of Grave v Lord Salisbury (1 Bro. C. C. 425), the decision certainly turning upon particular circumstances, is material, as shewing Lord Thurlow's reluctance to extend this rule; of which he evidently disapproved.

18 Vesey Junior 148, 34 ER p274 The, Lord Chancellor [Eldon]. I recollect, that Lord Thurlow in that case, though the decision did not turn upon it, remarked, that, as the law [18-Vesey Junior-148] will not acknowledge the relation of a natural child (see the notes 3 Ves. 12; 5 Ves. 534), the doctrine of this Court, on whatever principle founded, is, that if a portion is given to a child by Will, or a gift, so constituted as to acknowledge the legal relation, and afterwards an advancement is made on marriage, that is prima facie an ademption of the whole, or pro tanto: but if the legacy is given to a person, standing in the relation of a natural child to the testator, and he afterwards gave that child a sum of money on marriage, the law does not admit the conclusion prima facie, that the testator at the time of making the Will recognized that relation: the natural child therefore is in so much better a situation, that in his case the advancement is not prima facie an ademption; as it is in the case of a legitimate child: the effect of which is, that the presumption is to be formed consistently with the notion, that the testator has less affection for his legitimate child than even for a stranger; as Lord Thurlow used to express it. His Lordship also made another observation, of great weight, that ought to check any disposition to carry this farther; that, having raised the presumption from the fact, you beat it down by declarations, which from the very nature of mankind deserves little credit; viz. what a man has done, or will do, by his Will: how much shall stand; and how much shall not: declarations generally intended to mislead (1 Ves. jun. 359): but the prima facie presumption is established beyond controversy. The question is certainly of great consequence, whether this class of cases does, or does or not, require evidence, that at the time the legacy was constituted the legatee not standing in the relation of child to the testator, was regarded by him quasi in that relation; conceiving the purpose of placing himself in loco Parentis and, if it is necessary, that such a relation must then exist, it is very difficult to conclude, that this particular [18-Vesey Junior-149] case falls under that description. His purpose, whatever was his opinion with regard to these children, seems to have been, that no one should consider him as standing in the place of father. His expressions seem particularly selected with the view to avoid the description of a portion; and to denote, that, not he, but some other person, stood in the situation of parent. In Shudal v Jekyll, and the subsequent case before Lord Thurlow, upon the same principle holding, that by such a declaration, that he might leave something, but would not specify what, or be bound, the legacy could not be partly cut down a natural interpretation was, that taking £500 from the legacy, and leaving £500 he did leave something more beyond what he had advanced: but Lord Hardwicke correctly said, he had no means of collecting what was that something more; and the Will, giving £1000, was better evidence than any conjecture he, could form. If this letter can be considered as fair evidence, that he did not mean to disturb the Will, and that this fortune, as it is called in the letter, should be an ademption of that fortune, the doctrine of Shudal v Jekyll must be applied to this case. This is a very important question; and I wish to read the cases, particularly Trimner v Bayne; upon which occasion I gave the subject considerable attention. The other question involves, not only the construction of the French law, and the point, whether that has been sufficiently investigated, but farther, whether the power of attorney amounts here to a declaration of trust? It is clear that this Court will not assist a volunteer: yet, if the act is completed, though voluntary, the Court will act upon it. It has been decided, that upon an agreement [18-Vesey Junior-150] to transfer stock this Court will not interpose: but if the party had declared himself to be the trustee of that stock, it becomes the property of the cestui que trust without more; and the Court will act upon it. (18 Ves. 99.) The Lord Chancellor [Eldon]. These petitions call for the decision of points of more importance and difficulty than I should wish to decide in this way, if the case was not pressed upon the Court. With regard to the French annuity, the Master has stated his opinion as to the French law perhaps without sufficient authority, or sufficient inquiry into the effect of it, as applicable to the precise circumstances of this case: but it is not necessary to pursue that; as upon the documents before me it does appear, that, though in one sense this may be represented as the testator's personal estate, yet he has committed to writing what seems to me a sufficient declaration, that he held this part of the estate in trust for the annuitant.

18 Vesey Junior 151, 34 ER p275 The other question is one of great difficulty; whether a sum of money, advanced upon the marriage of one of these young ladies, when a settlement was executed, is to be taken to be a satisfaction of a legacy, not given upon the face of the Will as a portion, not given to a person stated upon the Will to be an adopted child of the testator, or described merely by name, but given to an individual, a stranger, described in the Will as the child of another person; who is designated as the father of that child. It not only does not appear, that the testator represented himself as in loco Parentis, but he has designated another individual as being the parent,; and therefore according to Lord Thurlow's opinion in Grave v Lord Salisbury (1 Bro. C. C. 425) the testator has expressed himself [18-Vesey Junior-151], in terms, anxiously calculated to conceal the fact, that he was the reputed father of that child; if he was so. Without going through all the cases, that were cited, and those referred to in them, having compared the case in Atkyns with manuscript notes of that case, and looked into some other cases, one in Ambler (Watson v The Earl of Lincoln, Amb. 325), and some earlier, I may state as the unquestionable doctrine of the Court, that, where a parent gives a legacy to a child, not stating the purpose, with reference to which he gives it, the Court understands him as giving a-portion and by a sort of artificial rule, in the application of which legitimate children have been very harshly treated, upon an artificial notion, that the father is paying a debt of nature, and a sort of feeling upon what is called a leaning against double portions, if the father afterwards advances a portion on the marriage of that child, though of less amount, it is a satisfaction of the whole, or in part; and in some cases it has gone a length, consistent with the principle, but shewing the fallacy of much of the reasoning, that the portion, though much less than the legacy, has been held a satisfaction in some instances upon this ground, that the father, owing what is called a debt of nature, is the judge of that provision, by which he means to satisfy it; and though at the time of making the Will he thought he could not discharge that debt with less than £10,000 yet by a change of his circumstances, and of his sentiments upon that moral obligation, it may be satisfied by the advance of a portion of £5000. The Court seems in the older cases to have met with some difficulty in determining, whether this rule should be confined to those, who stood in the actual relation of [18-Vesey Junior-152] parent and child; and it has accordingly been urged in argument, but not supported by decision, except where accounted for by evidence of declarations, that the Court have said, they did not mean to confine this doctrine to persons standing in that actual relation; but perhaps it might apply to a person, placing himself in loco Parentis, undertaking the care of an orphan: but what is to be the evidence of that, whether written evidence in the Will and Settlement, or the conduct observed at the marriage, or to be derived from mere declarations, is left so much afloat, that there is considerable difficulty in making a judicial decision upon, it. In Grave v Lord Salisbury (1 Bro. C. C. 425. Wetherby v Dixon, 19 Ves. 407, Coop. 279), the first case before Lord Thurlow, Lord Salisbury had several natural children; to whom he had given legacies by his Will; making afterwards a provision for them during his life, not ejusdem generis; giving the Living of Hatfield to one; a farm and stock to another; upon which the question arose. It was contended, that this was a satisfaction; that he intended by the legacy to make, a provision, or in other words to discharge the obligation, he owed to that child: and he had the same intention, advancing the portion, and the farm and stock. Lord Thurlow felt the extreme hardship, as it is evidently, that in the case of children, whose relation, as such, the law recognizes, the doctrine of presumption is, that a subsequent advancement is a satisfaction of a legacy to such a child but, as the law does not recognize the relation between the putative father and illegitimate child, as imposing this debt of nature, the father in that case stands as a stranger; and no such presumption arises in that case, where the subsequent advance is not proved to have been for the very purpose of satisfying the legacy; and [18-Vesey Junior-153] therefore the legatee is entitled to both. Lord Thurlow directed a reference to the Master to inquire into the circumstances, who did not report the relation, which the testator had to those children; and his Lordship, being pressed to send it back on that account, refused to do so; observing, that the object might have

18 Vesey Junior 154, 34 ER p276 been to conceal the circumstance of that relation; and therefore the Court would not make the inquiry: but without deciding, what would have been the case, if that relation appeared, it was enough, that it stood as the case of a stranger; and therefore the other provision was not a satisfaction. In the subsequent case of Powel v Cleaver (2 Bro. C. C. 499), where the provision made was described as a portion, Lord Thurlow stated expressly, that, if the legacy is given, not as a portion, by a stranger, who advances money on the marriage of the legatee, denominating that advance a portion, that denomination will not have the same effect in the case of a stranger, as it would in the case of parent and child; and Lord Thurlow asserts, that there is no authority contradicting that. If that is right, it comes to this; that, where a father gives a legacy to a child, the legacy, coining from a father to his child, must be understood as a portion, though it is not so described in the Will; and afterwards advancing a portion for that child, though there may be slight circumstances of difference between that advance and the portion, and a difference in amount, yet the father will be intended to have the same purpose in each instance; and the advance is therefore, an ademption of the legacy; but a stranger, giving a legacy, is understood as giving a bounty, not as paying a debt: he must therefore be proved to mean it as a portion, or provision, [18-Vesey Junior- 154] either upon the face of the Will, or, if it may be, and it seems that it may, by evidence, applying directly to the gift, proposed by that Will; and recollecting, how artificial the rules are, where, a person has educated a child through life, considering himself as standing in the relation of putative father to that child, having a father acknowledged, describing that child as the child of a mother named, and a father named, and also making a provision for that father and mother, it would be too much upon such a Will to say, this is the case of a person, meaning to pay, not what the Court calls a debt of nature, but a debt he meant to contract: in other words meaning to put himself in loco Parentis, in the situation of a person, described as the lawful father of that child. That brings the question to this; whether this advance of a portion of £3000 is an ademption of the legacy, between strangers, on the ground, that this subsequent advance is treated as a portion, or fortune; and whether, the testator having given that legacy of £4000, and afterwards giving to that legatee a portion on marriage, the mere circumstance of giving that as a portion or fortune is to be taken as evidence, that, when the Will was made, it was meant as paying a debt of nature; or whether it was not to be understood as in the first instance giving a bounty, and in the other making an addition to that bounty. In this case, as in Shudal v Jekyll, more was intended to be given: but in the case of a stranger no authority says, the advance of a less sum shall be an ademption of the whole. This letter, if it is to be admitted in evidence, shews, how little such evidence can be trusted; as no one would have supposed, upon the correspondence, that the testator had such a Will in his desk. Upon the authority of Powel v Cleaver, unless you can shew, that at the time of making the Will [18-Vesey Junior-155] the testator meant to give a portion as parent, or as standing in loco parentis, and meant to satisfy that in the whole or in part by the subsequent advance, the Court is not authorised by the artificial rules of Equity to hold it a satisfaction. I am not much impressed by the objection, that he had not altered his Will. The answer is, that the subsequent advance operates a revocation; and therefore actual revocation was unnecessary: but it is too much to say upon such circumstances as are before me, that this advance of £3000 is an ademption of the legacy of £4000 and the contingent interest; and, though I believe I am disappointing the actual intention, and that this lady will get more than was intended, I am bound by the rule of the Court to say, that this is not a satisfaction. June 28th. Under this Judgment the Order was pronounced, dismissing the first petition, and directing a transfer and sale of the Bank Annuities, according to the prayer of the other; upon which it was contended, that this should be considered as an appropriation of the Stock to this legacy at the date of the Master's Report; and, the funds having since fallen, the legatee was entitled only to so much Stock as would at that time have produced what remained due on account of the legacy. The Lord Chancellor said, the broad principle of the Court is, that no attention whatever is paid to the rise or fall of the stock; and upon that ground it is considered

18 Vesey Junior 156, 34 ER p277 equal, whether the appropriation is on one day or another: the party takes the rise or fall, as it happens: and' therefore the petitioners are entitled to have the sum, reported due to them, now raised.