amount as would, with the value of the other bequests thereinbefore made to him, make up the sum of 25,000l., free of legacy duty; and the testator gave to Mrs. Henry Passy 1,000l., and to each of her four sons, and to Charles Reynolds Williams, 500l., which said six legacies he directed should be paid free of legacy duty; and all his residuary estate and effects, of whatsoever kind, he gave to his nephews, John O'Leary and Henry O'Leary, in equal shares, or in case of the death of either of them in the lifetime of the testator or his wife, without leaving lawful issue living at the death of the testator or his wife, then to the survivor of his said two nephews; and the testator appointed his wife, if she should survive him, and the plaintiff, Townsend Wilson, and A. T. Stephens, executrix and executors of his will, and gave each of his executors 2001. for the trouble he might have in such executorship. The testator's wife died in his lifetime, before the month of June, 1867. The testator made a codicil to his will, which codicil was dated the 17th of June, 1867, and (omitting only the formal parts) was as follows: "This is a codicil to the will of General Sir De Lacy Evans, G.C.B. I will and bequeath 4,000l. to my dear friend, Colonel Townsend Wilson, late of the Coldstream Guards. I will and bequeath 2,000l. to General Sir Richard Dacres, of the Royal Artillery. I will and bequeath 2,000l. to Admiral Sir Sydney Dacres. I will and bequeath 2,000l. to John O'Leary, of Fort Shannon Glin. I will and bequeath 3,000l. to Henry O'Leary, of New Zealand. I will and bequeath 500l. to Alexander Greig, esquire, of Lowndes Street. I will and bequeath 1,500l. to Mrs. Mary Anne Sleeman, natural daughter of my late uncle, Major Henry Evans, long since deceased. I will and bequeath 1,500l. to my excellent servant and friend, Samuel Smart, or Smouth, and an additional 5007. if he should be with me at death. my I will and bequeath a year's wages to every one of my servants. I will and bequeath 2,000l. to Deborah Warr, my housekeeper, and the attached friend of my late dear wife." The testator made a second codicil to his said will, which was undated, but was, in fact, executed in the month of January, 1868, and (omitting only the formal parts thereof) was as follows: "This is a codicil to the will of me, General Sir De Lacy Evans, G.C.B., which was dated September, 1860. will and bequeath 2,000l. to my dear friend, Colonel Townsend Wilson, late of the Coldstream Guards. I will and bequeath 1,000l. to General Sir R. Dacres, of the Royal Artillery; 1,000l. to Admiral Sir Sydney Dacres. I will and bequeath 500l. to Alexander Greig, esquire, of Lowndes Street Square. I will and bequeath 2,000l. to John O'Leary, esquire, of Fort Shannon. I will and bequeath 3,000l. to Henry O'Leary, at present of New Zealand. I will and bequeath 1,5001. to my excellent head servant, Samuel Smart, or Smouth, and 500l. extra if he shall be with me at my death. I will 1,500l. to Mrs. Sleeman, natural daughter of my late uncle, Major Evans, of Gangam, India. I bequeath a year's wages, liberally interpreted, to all my servants. I bequeath 2,000l. to my dear and valued friend, Captain W. Eastwick, of the Council of India. These shall be free of legacy duty." The testator died on the 9th of January, 1870, possessed of the leasehold houses mentioned in his will and of other personal estate to a very considerable amount. His will was shortly afterwards proved by the plaintiffs. Various questions having arisen as to the effect and construction of the said testator's will and codicils, the plaintiffs filed this bill to have the same determined. The principal question now question now to be determined was whether any and which of the legacies bequeathed by the two above-stated codicils, either of similar or different amounts, to the same persons respectively, were cumulative or substitutional, and what legacies were in fact validly bequeathed by the said codicils. The subjoined tabular statement, containing the names of the several legatees named in the will and the said two codicils, will shew at a glance the several bequests made by each of those instruments, so far as they have any materiality to this case Mr. Amphlett and Mr. Renshaw appeared for the plaintiffs, the testator's executors. Sir R. Palmer and Mr. Everitt, for General and Admiral Dacres, argued that the legacies given by the second codicil were cumulative. The mere fact that legacies were given by a second testamentary instrument to the same persons who took legacies under a prior testamentary instrument of the same testator, even where the legacies given by the second of the two instruments corresponded in amount with those given by the first instrument, created no presumption that the testator intended merely to repeat the enumeration of the bequests given by the first instrument. But the inference was that he meant to make two gifts Mackenzie v. Mackenzie, 2 Russ. 262; When there was no expression of motive leading to the conclusion that the second gift was intended to be substituted for the first the Court would assume that two gifts were intended Lee v. Pain, 4 Hare 201, 216; s. c. 14 Law J. Rep. (N.S.) Chanc. 346; Suisse v. Lord Lowther, 2 Hare 424; s. c. 12 Law J. Rep. (N.S.) Chanc. 315; Roch v. Cullen, 6 Hare 531; s. c. 17 Law J. Rep. (N.S.) Chanc. 144; 3rd ed. vol. ii. p. 313; Mr. Eddis and Mr. C. Hall, for all the legatees except the Dacres, O'Learys, Sleeman, and Greig. Prima facie the legacies were cumulative, and there was no expression to rebut that inference. Of the legacies given by the second codicil three were of smaller amount than those given by the first codicil, five were identical in amount. In no case except in that of the gift of a year's wages to the testator's servants, were the legacies in the second codicil of greater amount than those in the first, in many instances they were considerably less. They referred to Tuckey v. Henderson, 33 Beav. 174; Cresswell v. Cresswell, 37 Law J. Rep. (N.S.) Chanc. 521; s. c. Law Rep. 6 Eq. 69; Johnstone v. Lord Harrowby, Johns. 425; 1 De Gex, F. & J. 183; s. c. 29 Law J. Rep. (N.S.) Chanc. 245; Roper on Legacies, 4th Ed. 999. Mr. Milman, for Sleeman, cited Martin v. Drinkwater, 2 Beav. 215. Mr. Montague Cookson, for P. Hughes. A. Mr. Kay and Mr. Phear, for the O'Learys on the authority of Martin v. Drinkwater, and Guy v. proposed to read an affidavit made by the testator's solicitor which had been entered in the chief clerk's certificate, and shewed the circumstances under which the second codicil had been made. Mr. Eddis objected to the affidavit being read; the question was one of construction only, and no extrinsic evidence was admissible. [BACON, V.C., said Mr. Kay was at liberty to read the affidavit as part of the chief clerk's certificate.] The affidavit stated that the testator shortly before the execution of his second codicil, wrote to his solicitor for a copy of his will and first codicil, and that his solicitor sent him a copy of the will, but not having a copy of the codicil, and having in his possession the original codicil enclosed in a sealed packet, he sent the testator this original codicil, together with a letter advising him to recopy it, so that the testator had the first codicil in his hands when he drew up his second codicil, which he did himself. [After hearing the affidavit read, the Vice Chancellor said: It had no bearing on the case, and he could pay no attention to it.] The Court might pay regard to the fact that the testator had the first codicil in his possession when he made the second, and the identity of the language shewed the second to have been merely a copy of the first. No doubt in a case where a single legacy was given by a codicil to a legatee who took under the will of the same testator, there was a leaning in favour of the second legacy being cumulative, but that was on the ground that the codicil by the very nature of the instrument was intended to add to the will— Russell v. Dickson, 4 H. L. Cas. 293, 304; no such inference arose in the case of a repetition of gifts in two codicilsKidd v. North, 14 Sim. 463; s. c. 2 Ph. 91; 16 Law J. Rep. (N.S.) Chanc. 116; Campbell v. Lord Radnor, 1 Bro. Coote v. Boyd, 2 Bro. C.C. 521; Attorney General v. Harley, 4 Madd. 263; Fraser v. Byng, 1 Russ. & M. 90; Gillespie v. Alexander, 2 Sim. & S. 145; Hemming v. Gurry, 2 Sim. & S. 311. It had been stated on the other side that where the legacy given by a second instrument was of less amount than that given to the same legatee by a former instrument, the doctrine of accumulation would invariably apply. But that was not so The Duke of St. Albans v. Beauclerc, 2 Tuckey v. Henderson (ubi supra); Martin v. Drinkwater (ubi supra). In this case the gift by the second codicil of a year's wages to the testator's servants was undoubtedly substitutional, and where you had the fact, as here, that some of the legacies given by the second instrument were not cumulative, the amounts of some of the legacies given to legatees under the first codicil were smaller, and some legacies given by the first codicil were omitted altogether in the second, the inference was irresistible that all the gifts in the second instrument were substitutional— Heming v. Clutterbuck, 1 Bligh, N.S. 479; Tatham v. Drummond, 33 Law J. Rep. (N.S.) Chanc. 438; Jackson v. Jackson, 2 Cox, 35. In any event Smouth, to whom a legacy was given as the testator's "friend and servant," was not entitled to his year's wages in addition to the other legacy. Sir R. Palmer in reply cited Doe d. Hearle v. Hicks, 8 Bing. 475; 8. c. 1 Cl. & F. 20, and 6 Bligh, N.S. 37; Stokes v. Heron, 12 Cl. & F. 167. Mr. Eddis replied with regard to Smouth's claim and cited Suisse v. Lord Lowther (ubi supra). BACON, V.C.-The questions lately argued in this case arise upon the will and two codicils of the late General Sir De Lacy Evans, and are substantially whether some of the legacies given by the second of the codicils, and which are thereby given to the same persons to whom legacies had been given by the testamentary documents of earlier date, are repetitions of or are to be taken as substitutionary for the legacies previously given either wholly or partially, or whether on the other hand the legacies given by the second codicil were distinct and separate gifts, and therefore in addition to the previous gifts contained in the will and the first codicil. The counsel for the legatees have insisted upon the latter proposition; on the part of the residuary legatees the former proposition has been contended for. The will and both of the codicils have been admitted to probate, and the question being therefore purely of construction, it is necessary to consider the three testamentary instruments. By the will, which was dated in September, 1860, after making provision for his wife, and for amounts payable during her life (which as she died in his lifetime it is unnecessary to refer to more particularly), the testator gave Mrs. Anne Slee man an annuity of 801. for her life, legacies to the defendaut, Philip Alexander Hughes, his stepson, to his nephews, John O'Leary and Henry O'Leary, to Mrs. Ellen Passy, and to each of her four sons, and to Charles Reynolds Williams, free of legacy duty; and he gave all the residue of his property, estate, and effects to his two nephews the O'Learys in equal shares. The testator's wife died in his lifetime and before the date of the first codicil. [His Honour read the codicil.] Of the legatees named in this codicil, none are named in the will except the two O'Learys and Mrs. Sleeman. In January, NEW SERIES, 40.-CHANC 1868, the testator made another codicil. [His Honour read the second codicil.] Of the legatees named in this second codicil, Captain Eastwick is the only one not mentioned in one or other of the testamentary documents of previous date. Both the codicils are in the handwriting of the testator, and both have been admitted to probate. To say that some degree of doubt and difficulty must attend all cases like the present, is only to repeat what has been often said and always felt by the Judges to whose decisions such questions have been submitted. But whatever doubt there may be in any cases, the difficulty attending them is greatly diminished by decisions which remain wholly unquestioned, for in several of such unquestioned cases, rules have been laid down which guide and bind the Court, and the application of which to whatever case may arise, is altogether imperative. Of the cases to which I refer Hooley v. Hatton (supra) is one of the most important, and from the clearness of the terms in which it is expressed one of the most satisfactory. By the will in that case the testatrix gave to Lydia Hooley, her woman, a legacy of 5001. By a codicil dated somewhat more than a year later the testatrix said, “I add this codicil to my will, I give Lydia Hooley 1,000l." The question was, whether Lydia Hooley took the two legacies or only the last. The case having been decided by the Master of the Rolls in favour of the legatee was reargued as it is said " very much at large before Lord Bathurst, Lord Chancellor, assisted by the Chief Baron Smythe and Mr. Justice Aston. The rules laid down in the judgment there pronounced I take to be these, for although they are stated only in the judgment of Mr. Justice Aston, the Lord Chancellor and the Lord Chief Baron concurred in that judgment. "First, that where there is no internal evidence furnished by the instruments themselves the general rules of law must be referred to; secondly, where the same specific thing is given twice, the gift can take place but once; thirdly, where the like quantity is given twice, but by different instruments, the legatee is entitled to both; fourthly, as to a less sum in the later instru 4 Y The decision of Sir John Leach in Hurst v. Beach (supra) is in perfect accordance with the rules I have stated, although expressed with some amplifications. After referring to Lord Hardwicke's decision in the Duke of St. Albans v. Beauclerk (supra), Sir John Leach says, "I think the true result of the decisions as they apply to the present point is to be stated thus, where a testator leaves two testamentary instruments and in both has given a legacy simpliciter to the same person, the Court, considering that he who has twice given must prima facie be intended to mean two gifts, awards to the legatee both legacies, and it is indifferent whether the second legacy is of the same amount, or less or larger than the first. But if in such two instruments the legacies are not given simpliciter, but the motive of the gift is expressed, and in both instruments the same motive is expressed and the same sum is given, the Court considers these two coincidences as raising a presumption, that the testator did not by the second instrument mean a second gift, but meant only a repetition of the former gift. The Court raises this presumption only where the double coincidence occurs of the same motive and the same sum in both instruments. will not raise it, if in either instrument there be no motive or a different motive expressed, although the sums be the same; nor will it raise it if the same motive be expressed in both instruments, and the sums be different. The presumption cannot therefore be raised in this case, although it be admitted that the motives are the same, inasmuch as the sums are different, and upon the face of these instruments the defendant is entitled to both sums." It In Mackenzie v. Mackenzie (supra), which came to be decided several years later by Lord Eldon, and where both the cases I have mentioned were referred to in the judgment, I find him saying, "I am not at liberty, according to the rules of this Court, to declare the one legacy to be a substitution for the other." In the later case of Lee v. Pain (supra), the Vice Chancellor, Sir James Wigram, not only examined and considered with that scrupulous patience and care which characterized his judgments, the several authorities, all of which have been referred to in the argument before me, but went fully and profoundly into the principles upon which the rules in Hooley v. Hatton (supra), and in Hurst v. Beach (supra), were established. The case was one of excessive complication, and its details depended upon the construction of a will dated in 1829, and five codicils made at various subsequent periods down to 1841. The Vice Chancellor decided each and every of the various and numerous points arising from each of the legacies, and was enabled to do so with satisfaction to himself, and to the great benefit of the community, by adhering to the rules which previous decisions had established, and to this principle, which his judgment may be said to have established, viz. : "that legacies given simpliciter to the same legatees by different instruments are cumulative, unless the plain effect of the separate gifts is overruled or impaired by the true construction of the instru ments or presumption of law." Upon the authority of these cases, the several counsel who appear for the legatees have insisted that the legacies given by each of the codicils are cumulative, and that the codicils having been established in the Probate Court, the legal right of the several legatees is established, that there being no ground for raising any presumption against the legal effect of the words in which the testator's intentions are expressed, and no words to be found in the several instruments expressly, or indicating an intention to revoke, the will and codicils must be construed liberally and exactly as the testator has left them. Upon the part of the residuary legatees it was argued at considerable length, and |