will is adeemed, pro tanto, by the gift of Warner's note. For the sake of brevity, I will call the will the first, and the gift of Warner's note the second, transaction; although, in fact, the gift of Warner's note was perfected before the will came into operation. The way in which I have stated the question presents it for judgment in its most convenient form. No question is made as to the legal effect of the will, separately taken; nor is any question made that the second transaction, whatever it was, at all events is to stand. The questions I have to consider are two,-first, as to what the second transaction really was,-and secondly, as to the effect, if any, of the second transaction upon the first. Where similar questions have arisen upon gifts given by two distinct instruments, the law as to the admissibility of parol evidence has, I believe, been long since settled. In such cases the rule of law applies, that written instruments cannot be added to, or explained by, parol evidence; and, therefore, unless the second instrument, in express terms, or by presumption of law, adeems the gift made by the instrument of earlier date, no question can arise. Both instruments will take effect. Again, if the second instrument in terms adeems the gift by the first, it could not, I apprehend, be contended *that it would not produce its intended effect; a party claiming under, and having taken the benefit of it, could not claim that benefit, and at the same time refuse to give full effect to it. If, however, the second instrument do not, in terms, adeem the first, but the case is of that class in which, from the relation between the author of the instrument, and the party claiming under it, (as in the actual or assumed relation of parent and child), or on other grounds, the law raises a presumption, that the second instrument was an ademption of the gift by the instrument of earlier date, evidence may be gone into to show that such presumption is not in accordance with the intention of the author of the gift; and, where evidence is admissible for that purpose, counter-evidence is also admissible. In such cases, the evidence is not admitted, on either side, for the purpose of proving, in the first instance, with what intent either writing was made; but for the purpose only of ascertaining whether the presumption which the law has raised be well or ill founded. For this it will be sufficient to refer to the case of Hurst v. Beach (1), and the cases cited in the elaborate judgment of the LORD CHANCELLOR OF IRELAND, in the late case of Hall v. Hill (2), in which he fully considers the effect (1) 21 R. R. 304 (5 Madd. 351). (2) 58 R. R. 223 (1 Dr. & War. 94), KIRK v. EDDOWES. [517] KIRK v. EDDOWES. [ *518 ] [ *519] of acts inter vivos in adeeming legacies, Hartopp v. Hartopp (1), * The defendant's evidence was not objected to, nor could it have been successfully objected to, so far as it went to show the gift of Warner's note, its amount, and other circumstances attending it, with the exception of the testator's declarations accompanying the gift. For the Court which has to decide whether the transaction has effected a partial ademption of the legacy must know what the transaction was; but the declarations of the testator, accompanying the transaction, were objected to. Why should those accompanying declarations not be admissible? They are of the essence of the transaction, and the truth of the transaction itself cannot be known. to the Court without them. The rule which would exclude the evidence, if the intention of the parties had been expressed in writing, does not apply. I assume, that, if the intention of the parties, as proved by the evidence, had been in writing, it could not be contended, on the part of Mrs. Kirk, to whom the legacy was given for her separate use absolutely, that a payment to her husband of the amount of her legacy, at her instance and at her request, would not have precluded her from claiming it under her father's will; or, in other words, that the advance made under such circumstances would not have adeemed the legacy. If that be not so, the argument must be, that an advance made by a testator to one of his legatees, under an agreement in writing, that the legatee shall accept the advance in full satisfaction of his legacy, would leave the legatee at liberty to claim the legacy, notwithstanding the agreement; and, if such an argument be not admissible, the declarations of the testator must be admissible in the *case I am now supposing, unless there be some rule of law which hinders a transaction, like that which the defendant relies upon, from being valid unless it be evidenced by writing. This, however, cannot be (1) 11 R. R. 48 (17 Ves. 192). (2) 45 R. R. 277 (3 My. & Cr. 359). successfully contended for. The evidence does not touch the will; it proves only that a given transaction took place after the will was made, and proves what that transaction was, and calls upon the Court to decide whether the legacy given by the will is not thereby adeemed. Ademption of the legacy, and not revocation of the will, is the consequence for which the defendant contends; a distinction which is marked by Lord HARDWICKE in the case of Rosewell v. Bennett (1). The defendant does not say the will is revoked; he says the legatee has received his legacy by anticipation. In principle, therefore, I cannot see my way to reject the evidence in question. How, then, does the case stand upon authority? The cases of Monck v. Lord Monck (2), Rosewell v. Bennett (1), Thellusson v. Woodford (3), Bell v. Coleman (4), Biggleston v. Grubb (5), Hoskins v. Hoskins (6), Chapman v. Salt (7), Powel v. Cleaver (8), Grave v. Lord Salisbury (9), Ex parte Dubost (10), and Shudal v. Jekyll (11), are all authorities in favour of admitting the evidence. In Hall v. Hill, the LORD CHANCELLOR of Ireland refers (12), with marked approbation, to the cases of Rosewell v. Bennett, Biggleston v. Grubb, and Monck v. Lord Monck, upon this point. I am aware that an argument may be raised, as to how far the admission of the evidence, in the cases I have cited, or the greater part of them, may be referred to the principle to which I have before adverted-that of applying it to a presumption first raised by the Court. Such an argument, however, will be found, upon examination, not to be sustainable; for, if the law would, in those cases, have raised the presumption, the evidence which was objected to was unnecessary, there being no evidence to countervail the presumption. But the evidence, though objected to in some of the cases, was received, and, therefore, must have been read to prove what the transaction was. And it is remarkable that, in Thellusson v. Woodford, although the exception to the Master's report raised the question, whether the evidence was admissible, the eminent counsel who argued against the ademption barely threw out a question, whether the evidence was admissible, without arguing against its admissibility; KIRK t. EDDOW ES. [ *520 ] KIRK ". EDDOWES. [521] and Sir JOHN LEACH said, “This is not a case of implication, but of express declaration." Admitting, therefore, in the fullest manner, that parol evidence is inadmissible to prove that a will or other written instrument was intended to have an effect not expressed in it, still, with the opinion of the LORD CHANCELLOR OF IRELAND, so recently expressed upon the point, and the other authorities I have referred to, supporting the opinion which I individually entertain, that the evidence is admissible, I shall receive it. The subject has been very elaborately considered by Mr. Roper. I cannot but think the learned writer has not sufficiently kept in mind the distinction between ademption and revocation, nor between the cases in *which the intention of the parties has been reduced into writing, and those in which the Court has had to ascertain, by parol evidence only, what the parties had done. It was said, that there was a distinction in this case, inasmuch as the advance was made, not, as in the cases cited, to the legatee herself, but to the husband of the legatee. That circumstance might be material upon the question of implied ademption, but it cannot affect the question of admitting or rejecting the evidence to prove what the transaction was. In more than one of the cases cited the same circumstance occurred. In the preceding observations I have supposed the 3,000l. to have been given to Mrs. Kirk absolutely: it was, in fact, given to her for life, for her separate use, with remainder to her children, as a class; and it remains to be seen whether that circumstance alters the case. My opinion is, that it makes no difference. I do not mean to decide that a legacy to A. can be adeemed by a mere advance to another person than A. That might be simple revocation, and not ademption. Nor do I mean to decide, that, if in this case the bequest had been to Mrs. Kirk for life, with remainder to children living at the time, and named in the will, the bequest to the children could have been affected by the advance in question. I give no opinion upon that case. But here I find a legacy to Mrs. Kirk, for her separate use, with remainder to her children as a class that I think is in the nature of a portion to the daughter herself. It is, in fact, a common way of dealing with a lady's portion, upon the occasion of her marriage. A provision for herself, and her children after her, is the use of her portion. I find her, in effect, requesting her father to advance part of her fortune to her husband, and he does so, declaring at the time what his : testamentary dispositions are, as between his son and daughter, and what his intentions are in making the advance; and the 500l. is accepted upon that basis. Carver v. Bowles (1) is an authority in favour of this view of the case, as are many of Lord ELDON'S observations in Trimmer v. Bayne (2), which is rather the converse of the present case. Upon the whole, not holding that extrinsic evidence can, in any case, be admitted to alter, add to, or vary a written instrument, or to prove with what intention an instrument was executed,-nor that declarations of the testator, made at any other time than contemporaneously with the advance, and as part of the transaction the truth of which I am bound to ascertain, would, in this case, be admissible, and distinguishing between revocation and ademption, I am of opinion that this evidence must be received. Declare that the legacy of 3,000l. was adeemed, to the extent of 500l., by the gift of the promissory note to Elizabeth Kirk (3). Let a new trustee be appointed in the place of Storer Eddowes. Refer it to the Master to inquire on what securities the legacy of 2,500l. is now invested. Liberty to state special circumstances. Reserve further directions and costs. KIRK v. EDDOWES. [ *522 ] HALL v. PALMER. (3 Hare, 532–538; S. C. 13 L. J. Ch. 332; 8 Jur. 459.) A testator sealed and delivered a bond, conditioned for the payment of an annuity, after his death, to a woman with whom he had cohabited. At the time he gave instructions to prepare the bond, he stated, that it was not his intention to break off his connexion with the obligee; and he deposited the bond with his solicitors, with whom it remained until after the death of the obligor. On a reference to the Master, he found that the consideration of the bond was past cohabitation: Held, that the bond was valid; that, being proved to have been sealed and delivered, the retention of it in the hands of the obligor's solicitor did not affect its operation (4); and that, after the facts had been referred to the Master, and the Court was satisfied with his finding, payment of the sum secured by the bond would be decreed, without a trial at law. JOHN VIDLER executed his bond, dated the 29th of June, 1824, whereby he became bound to the plaintiff Mary Hall, in the penal sum of 3,000l., conditioned for the payment to her of an annuity (1) 34 R. R. 102 (2 Russ. & My. 301). the note having been realized. See (2) 6 R. R. 173 (7 Ves. 508). p. 394. (3) The plaintiffs raised no question as to the fact of the 5007. secured by (4) See Preface to 29 R. R., discussing Doe d. Gurnous v. Knight. 1844. May 7, 8. WIGRAM, [532] |