ty, in which case the intermediate income of both the residuary real and personal estate pass by the same residuary clause.1 if, after an executory devise of a particular estate, there is a general residuary clause, it will carry the intermediate rents and profits of the lands first devised. The question here is as to the interim enjoyment when the residue is the subject of the executory devise. If you look at the nature of a residuary devise of real estate, the answer is obvious, that the mere fact of its being a residuary devise of real estate could not operate in the manner suggested-i. e., carry the intermediate income because, up to the Wills act (see WILLS), the residuary devise of real estate was not less specific than a devise of Blackacre, since a person could only devise all the estates he had; that is, the actual property he possessed at the date of his will. There would seem, therefore, to be no reason why a simple residuary devise should have the operation contended for. Then the Wills act could not, on this point of construction, make any difference, because all that that act does is simply to sweep in everything he might have at the time of his decease, but not to alter the rule of construction, which has been adopted in favor of the heir at law, namely, that you must find, for that is the rule, express words, or, I should rather say, manifest intention (necessary implication it has been sometimes called) on the face of the whole will to exclude him from that benefit which the rule of law has conferred on him. The simple fact of a devise of residuary real estate seems to me clearly not to alter the rule as to the intermediate rents which is established in the case of a specific devise, nor do I find any authority which would authorize me to say so." PAPWOOD, C. C., in Hodgson v. Bective, H. & M. (Eng.) 376, 395, 396. "It is impossible, in the absence of any words clearly leading to what the court considers judicially to imply a gift of the intermediate rents, that any such gift can be introduced into the testator's will. Neither the persons waiting until the executor's devise shall take effect nor the person who shall first come into esse when the executory devise has taken effect, nor all the persons who may be interested under the series of devises following that executory devise, by way of accumulation of the rents, can establish their claim." 1 Jarm. (5th Am. ed.) *653. See WOOD, V. C., in Hodgson v. Bective, 1 H. & M. (Eng.) 376, 392; SIR E. SUGDEN, in Wills v. Wills, 1 Dr. & War. (Eng.) 451, 452, upon Duffield v. Elwes, 2 S. & St. (Eng.) 544. As to what words will amount to a gift of the intermediate rents, see Turton v. Lambarde, 1 D. F. & J. (Eng.) 495; D'Eyncourt υ. Gregory, 34 Beav. (Eng.) 36. By the word future is meant deferred in enjoyment; not necessarily contingent. 1 Jarm. Wills (5th Am. ed.) *652. The rule is the same with regard to trusts. LORD TALBOT, in Hopkins v. Hopkins, Cas. t. Talb. (Eng.) 44; SIR E. SUGDEN, in Wills v. Wills, i Dr. & War. (Eng.) __455; Wade Gery v. Handley, L. R., 1 Ch. D. (Eng.) 653; s. c., L. R., 3 Ch. D. (Eng.) 374; In re Eddel's Trusts, L. R., 11 Eq. (Eng.) 559. Nevertheless an opinion was formerly entertained by ancient judges that a general residuary devise, although contingent in terms and uncombined with a gift of residuary personalty, would of itself carry the intermediate rents and profits before the period of vesting LORD HARDWICKE in Gibson v. Montfort, 1 Ves. Sr. (Eng.) 485; LORD BROUGHAM in Ackers v. Phipps, 3 Cl. & F. (Eng.) 691. So held in Rogers v. Ross, 4 Johns. Ch. (N. Y.) 397. 1. Stephens v. Stephens, Forest. (Eng.) 228; Genery v. Fitzgerald, Jac. (Eng.) 468; Ackers v. Phipps, 3 Cl. & F. (Eng.) 691; 5 Sim. (Eng.) 44; 9 Bli. (Eng.) N. S. 431. See also Glanville v. Glanville, 2 Mer. (Eng.) 38; Lachlan v. Reynolds, 9 Hare (Eng.) 796; Rogers v. Ross, 4 Johns. Ch. (N. Y.) 397; Brailsford v. Heyward, 2 Dessaus. (S. Car.) 31; Dougherty v. Dougherty, 2 Strobh. Eq. (S. Car.) 63; Hurford v. Haines, 67 Ind. 240. "The general principles are these: When personal estate is given to A at twenty-one that will carry the intermediate interest. If a testator gives his estate Blackacre at a future period, that will not carry the intermediate rents and profits; but where he mixes up real and personal estate in one clause, the question must be whether he does not show an in 4. Cumulative and Substitutional Bequests-Repeated Legacies.—If two legacies are given to the same person, and the intent is that the legatee shall have both, the legacies are said to be cumulative; if the latter is only a repetition of the former, or is given instead, or in substitution of the former, it is said to be substitutional. In ascertaining the intent, the following rules of construction have been adopted: 1 I. If the same specific thing is bequeathed twice to the same legatee in the same will or in the will and again in the codicil, the legatee can claim the benefit of only one legacy, because the same identical thing can only be given once.2 2. Legacies of quantity bequeathed by one and the same in tention that the same rule must operate on both." LORD ELDON in Genery v. Fitzgerald, Jac. (Eng.) 468; Hodgson v. Bective, 1 H. & M. (Eng.) 376, 394. In applying these principles great care is required to distinguish a real blending of the realty and personalty from a mere gift of the one by reference to some of the trusts of the other. Hodgson v. Bective, 1 H. & M. (Eng.) 397. It is also essential to distinguish between a postponed or contingent gift of the residue, and a particular interest to commence in futuro in a fund already constituted, which latter does carry intermediate income even of personalty. Talbot v. Jevers, L. R., 20 Eq. (Eng.) 255; Weatherall v. Thornburgh, L. R., 8 Ch. D. (Eng.) 261. See also In re Drakeley's Estate, 19 Beav. (Eng.) 395; Marriott v. Turner, 20 Beav. (Eng.) 557; In re Sanderson's Trust, 3 K. & J. (Eng.) 510. Compare § VI. A devise of "all the residue" of the testator's property or of his estate is presumed to pass real as well as personal property, meaning thereby the surplus left after all liabilities have been discharged and the other specific purposes of the will carried into effect. Faust v. Birner, 30 Mo. 414; Fraser v. Hamilton, 2 Dessaus. (S. Car.) 573; Chapman v. Chick, 1 Wash. (C. C.) 45. See also 81 Me. 109; Parker v. Parker, 5 Metc. (Mass.) 134; Commonwealth v. Hackett, 102 Pa. St. 505; Smith v. Smith, 17 Gratt. (Va.) 268; Atkins 7. Akron, 2 Ired. Eq. (N. Car.) 58; Cruger v. Heyward, 2 Dessaus. (S. Car.) 422; Wynne v. Wynne, 23 Miss. 251; Robertson v. Johnston, 24 Ga. 102; Farish v. Cook, 78 Mo. 212; Pierce's Estate, 56 Wis. 560; Hale v. Hale (Ill.), 17 N. E. Rep. 470; Grimes v. Smith, 70 Tex. 217. See WILLS. The principles governing the devolution of the income of residuary realty are not affected by Stat. 1 Vict., ch. 26, § 24, and analogous acts which make the will with reference to the real and personal estate comprised in it speak from the death. 1 Jarm. (5th Am. ed.). *651, *654; citing Hodgson v. Bective, 1 H. & M. (Eng.) 396. 1. The intention of the testator is the rule of construction, and the intention is to be sought for and collected from the language of the instrument, the form and character of the bequests, the objects of his bounty, circumstances of the testator, and the whole scope, arrangement and structure of the will. HORNBLOWER, C. J., in Jones v. Creveling, 4 Harr. (N. J.) 127; S. C., I Zab. (N. J.) 573. KENT, C. J., in De Witt v. Yates, 10 Johns. (N. Y.) 156, 159. These are the two leading cases in the United States. See also Ridges v. Morrison, 1 Bro. C. C. (Eng.) 389; Corte v. Boyd, 2 Bro. C. C. (Eng.) 527; Lolly v. Stocks, 19 Beav. (Eng.) 393; Hubbard v. Alexander, L. R., 3 Ch. D. (Eng.) 738; Rice v. Boston etc. Aid Society, 56 N. H. 191, 198. Criticizing English cases. Boehm, 49 Md. 72, 100. Orrick v. These rules have no application to the case of a residue given to a person to whom previously a specific or pecuniary gift has been made. In such case the legatee is entitled to both. Kirkpatrick v Bedford, L. R., 4 App. Cas. (Eng.) 96, 103; Cushing v. Burrell, 137 Mass. 21. 2. Wms. Exrs. Toller Ex. 335; Hare (Eng.) 432. Cal. 125. (7th Eng. ed.) 1289; Suisse v. Lowther, 2 See In re Zeile, 74 strument, if of unequal amounts, are cumulative; 1 if equal, the second is considered a repetition or substitution of the first, and the legatee is entitled to one only.2 3. Legacies of quantity, given by different testamentary instruments, as by will and codicil, to the same person, are prima facie cumulative, whether of equal or unequal amounts,3 unless 1. Rop. Leg. (2nd Am. ed.) *998; Yockney v. Hansard, 3 Hare (Eng.) 622; Curry v. Pile, 2 B. C. C. (Eng.) 225; Bayley v. Quin, 2 Dr. & War. (Eng.) 116; Adnam v. Cole, 6 Beav. (Eng.) 353; Windham v. Windham, Finch (Eng.)_267. 2. 1 Rop. Leg. (3rd Am. ed.) *996; Holford v. Wood, 4 Ves. (Eng.) 75; Greenwood v. Greenwood, 1 Bro. C. C. (Eng.) 30 n.; Garth v. Meyrick, 1 Bro. C. C. (Eng.) 30; Holford v. Wood, 4 Ves. (Eng.) 79, 91; Brine v. Ferrier, 7 Sim. (Eng.) 549; Early v. Benbow, 2 Col. (Eng.) 354; Manning v. Thesiger, 3 M. & K. (Eng.) 29. This, nevertheless, will depend upon the intention to be gathered from the "internal evidence and the circumstances of the case." KENT, C. J., in De Witt v. Yates, 10 Johns. (N. Y.) 156; HORNBLOWER, C. J., in Jones v. Creveling, 4 Harr. (N. J.) 127, 128; Barkenshaw v. Hodge, 22 W. R. (Eng.) 484. To overcome the presumption in favor of substitution where the sums are equal, some new or additional cause for enlarging the bounty must be assigned, unless the intent to confer cumulative legacies clearly appears from the words of the will. The fact that in one part of the will testator bequeathed a legacy of a certain amount to children to be paid as they arrived at twenty-one, and in a subsequent part of the instrument charged a legacy of same sum on land devised, and that the first bequest being charged on personalty was vested, and the second subject to lapse, through the rule in Paulet v. Paulet, 1 Vern. (Eng.) 204, does not make the bequests cumulative. De Witt v. De Witt, 10 Johns. Ch. (N. Y.) 156, 159. But in Jones v. Creveling, 4 Harr. (N. J.) 127, 134, it was said that where the bequests, though of similar sums, are charged on different funds, payable on different events, times and contingencies, the one carrying interest, the other not, the legacies, though in amount nominally the same, are of different values, and the legal presumption against accumulation, founded upon the fact that both are contained in the same instrument, rebutted. Hence where the words were, "I do give and bequeath unto my two daughters, Christina Jones and Deborah Jones, each four hundred dollars, to be paid them by my executors. If they are not of age at my decease, I order my executors to pay each of them, yearly and every year, the interest of four hundred dollars until they arrive of age. I further order my executors to pay out of my estate to Christina Jones four hundred dollars one year after my decease; and to pay Deborah Jones four hundred dollars two years after my decease, in full of their legacies bequeathed to them." Held, that each legatee was entitled to eight hundred dollars. "In Addition" "And Further""Moreover."-These and similar expressions have been held sufficient to overcome the rule in favor of substitution and show that accumulation was intended. Rop. Leg. (2nd Am. ed.) *998; Jones v. Creveling, 4 Harr. (N. J.) 127, 134; Barkenshaw v. Hodge, 22 W. R. (Eng.) 484. See also WIGRAM, V. C., in Lee v. Pain, 4 Hare (Eng.) 196, 220. Where One of the Bequests Is to a Class.-Where the will read to "M N $8,000 on interest during her life, and then to her heirs and assigns; to the children of JN $8,000 in like manner," and M N is one of the children of J N, the rule has no application. "M N is taken out of the class by the first sentence and made the special object of bounty; in the second, M N is referred to as an example of the mode of investing the legacy bequeathed to the class. The words directing the mode of disposing of the latter legacy clearly exclude M N from all participation in it." Orrick v. Boehm, 49 Md. 72, 100. 3. Hooley v. Hatton, í Bro. C. C. (Eng.) 390 ̊n.; LEACH, V. C., in Hurst v. Beach, 5 Madd. (Eng.) 358; Lee v. Pain, 4 Hare (Eng.) 201, 216; Roach v. Cullen, 6 Hare (Eng.) 531; Cresswell v. Cresswell, L. R., 6 Eq. (Eng.) 69; Wilson v. O'Leary, L. R., 12 Eq. (Eng.) 525; L. R., 7 Ch. D. Eng. 448; Russell v. Dickson, 4 H. L. Cas. (Eng.) 293; Ir. Rep., 4 Eq. 316; In re Zeile, 74 Cal. 125, 131; Rice v. Boston etc. Aid Society, 56 N. H. 191, 198, et seq.; Utley v. Titcomb, 63 N. H. 129. For illustrations of the rule where the amounts are equal, see Wallop v. Hew ett, L. R., 2 Ch. Rep. 70; Newport v. Kynaston, Finch (Eng.) 294; Forbes v. Lawrence, Coll. (Eng.) 495; Baillie v. Butterfield, 1 Cox (Eng.) 392; James v. Semmens, 2 H. Bl. (Eng.) 219; Benyon v. Benyon, 17 Ves. (Eng.) 34; Lee v. Pain, 4 Hare (Eng) 216. Where the amounts are unequal. Mann v. Fuller, Kay (Eng.) 624; Pit v. Pidgeon, I Ch. Cas. (Eng.) 301; Hooley v. Hatton, 2 Dick. (Eng.) 461; s. c., I Bro. C. C. (Eng.) 389 n.; Masters v. Masters, 1 P. Wms. (Eng.) 423; Mackenzie v. Mackenzie, 2 Russ. (Eng.) 272, 273; Wray v. Field, 6 Madd. (Eng.) 300; s. c., 2 Russ. (Eng.) 257; Lyon v. Cahill, 1 Coll. (Eng.) 449; Gay v. Sharp, 1 Myl. & K. (Eng.) 589; Hodges v. Peacock, 3 Ves. (Eng.) 735; Johnstone v. Lord Harrowby, Johns. (Eng.) 425; I De G. F. & J. (Eng.) 183; Watson v. Reed, 5 Sim. (Eng.) 431; Gordon v. Hoffman, 7 Sim. (Eng.) 29; Atty. Gen. v. George, 8 Sim. (Eng.) 138; Tweedale v. Tweedale, 10 Sim. (Eng.) 453; Spire v. Smith, 1 Beav. (Eng.) 419; Robley v. Robley, 2 Beav. (Eng.) 95; Hertford v. Lowther, 7 Beav. (Eng.) 107. The fact that the codicil recites the gift by will does not affect the construction. Guy v. Sharp, 1 M. & K. (Eng.) 589. Bequests of a share of residue by will and of a pecuniary legacy by codicil are of course cumulative. Gordon v. Anderson, 4 Jur., N. S. (Eng.) 1097; Legder v. Hooker, 18 Jur. (Eng.) 481. Exceptions-Second Instrument Incorporated with First.-Where the additional instrument is treated as explanatory of and to be incorporated with the original will, the case may be brought within the rule as to additional gifts by the same instrument. Duke of St. Albans v. Beauclerk, 2 Atk. (Eng.) 636; Fraser v. Byng, R. & M. (Eng.) 90. See SIR JOHN NICHOLL in Ingram v. Strong, 2 Phil. (Eng.) 312. there is a gift to a person with a different gift written in the margin of the will. Martin v. Drinkwater, 20 Beav. (Eng.) 215. Circumstances Strengthening the Presumption in Favor of Accumulation.— The presumption that legacies are cumulative from their being given by different instruments is strengthened where they are not ejusdem generis, as where an annuity and a sum of money are given. Masters v. Masters, 1 P. Wms. (Eng.) 423, 424. See also Atty. Gen. v. George, 8 Sim. (Eng.) 138. Or two annuities, the one payable quarterly, the other half-yearly. Currie v. Pye, 17 Ves. (Eng.) 462. Or where one legacy is vested and the other contingent. Hodges v. Peacock, 3 Ves. (Eng.) 735 Or where one is payable immediately on the testator's death and the other at a future period. Wray v. Field, 2 Russ. C. C. (Eng.) 261, 262. See also Suisse v. Lord Lowther, 2 Hare (Eng.) 424; Lee v. Pain, 4 Hare (Eng.) 223; Spire v. Smith, 1 Beav. (Eng.) 419; Robley v. Robley, 2 Beav. (Eng.) 95; Guy v. Sharp, 1 Myl. & K. (Eng.) 589; Strong v. Ingram, 6 Sim. (Eng.) 197, Atty. Gen. v. George, 8 Sim. (Eng.) 138 Wright v. Cadogan, 2 Eden (Eng.) 239. So where a different or additional motive is assigned for making the second bequest. Ridges v. Morrison, I Bro. C. C. (Eng.) 388. Circumstances Showing a Contrary Intent.-Rule III, like Rule II, is only valuable as a means of discovering the intention, and where circumstances show a contrary intent to that prescribed by the rule it does not apply. Guy v. Sharp, 1 Myl. & K. (Eng.) 589. See Martin v. Drinkwater, 2 Beav. (Eng.) 215; Yockney v. Hansard, 3 Hare (Eng.) 620; Russell v. Dickson, 2 Dr. & W. (Eng.) 133; 4 H. L. Cas. (Eng.) 293. Hence, if the second bequest is explanatory of the first, or adapts it to altered circumstances, as the death of legatees, the second gift is substitutional. Theobald on Wills (2nd ed.) 117. See Moggridge v. Thackwell, Ves. Jun. (Eng.) 473; Barclay v. Wainright, 3 Ves. 462; Allen v. Čallow, 3 Ves. 289; Osborne v. Duke of Leeds, 5 Ves. 369. See further Tuckey v. Henderson, 33 Beav. (Eng.) 174; Lord Hertford v. Lord Lowther, 7 Beav. (Eng.) 107; Lee v. Pain, 4 Hare (Eng.) 240; Saurey v. Rumney, 5 De G. & Sm. (Eng.) 698; The same principle applies where Watson v. Řeed, 5 Sim. (Eng.) 431; In the same way several testamentary papers may be so connected together as to be in fact one instrument. Brine v. Ferrier, 7 Sim. (Eng.) 549. the amounts are the same and expressed to be given with the same motive,1 or it appears from intrinsic evidence that the second instrument was intended as a mere substitution for the first.2 If either of these latter circumstances occurs, the second legacy Strong v. Ingram, 6 Sim. (Eng.) 197; Gillespie v. Alexander, 2 Sim. & Stu. (Eng.) 145; Hemming v. Gurrey, 2 Sim. & Stu. (Eng.) 311; s. c., 1 Bligh, N. S. (Eng.) 479; 1 Dow (Eng.), N. S. 35; Fraser v. Bing, 1 Russ. & Myl. (Eng.) 90; Wray v. Field, 6 Madd. (Eng.) 300; S. C., 2 Russ. (Eng.) 257; Atty. Gen. v. Harley, 4 Madd. (Eng.) 263; Allen v. Callow, 3 Ves. (Eng.) 289; Barclay v. Wainwright, 3 Ves. (Eng.) 462; Osborne v. Leeds, 5 Ves. (Eng.) 369; Currie v. Pye, 17 Ves. (Eng.) 462; James v. Semmens, 2 H. Bl. (Eng.) 213; Jackson v. Jackson, 2 Cox (Eng.) 35; Campbell v. Radnor, 1 Bro. C. (Eng.) 271; St. Albans v. Beauclerk, 2 Atk. (Eng.) 636; Mayor of London v. Russell, Finch (Eng.) 290. So if the second gift is coupled with a gift of some specific thing already given. Currie v. Pye, 17 Ves. 462; Lord Mayor of London v. Russell, Finch (Eng.) 290; explained in Brennan v. Moran, 6 Ir. Ch. 131. Or if the testator revokes by a codicil a portion of a prior gift, and then repeats the rest, so that the repetition may be explained as ex abundanti cautela. Benyon v. Benyon, 17 Ves. (Eng.) 34; Hinchcliffe v. Hinchcliffe, 2 Dr. & S. (Eng.) 96. Or where the testator shows by referring to the preceding gift as a "sufficient" provision that that gift was all the legatee was intended to have. Robley v. Robley, 2 Beav. (Eng.) 95. A difference in the way in which the two gifts are given favors the cumulative construction. Hodges v. Peacock, 3 Ves. (Eng.) 735; Lee v. Pain, 4 Hare (Eng.) 201. Though if the two gifts are of the same amount, but given to different trustees, the argument is the other way. Benyon v. Benyon, 17 Ves. (Eng.) 34. In Addition. The words "in addition to," or "I further order," or any similar words by which it appears that the testator intended to add the second bequest to that already made, strengthen the inference in favor of the cumulative construction. Sponsler's Appeal, 107 Pa. St. 95, 101; Cushing v. Burrell, 137 Mass. 21, 24; Utley v. Titcomb, 63 N. H. 129; Barnes v. Hanks, 55 Vt. 317. A legacy to the "R T Seminary and the HT Seminary $10,000" is a legacy of that amount to each. Taylor v. Tolen, 38 N. J. Eq. 91, 97. If a testator expressly declares one gift to be in addition to another, and in another instance makes a gift without any such declaration, the omission affords ground for an argument that the latter gift was intended to be substitutional, but is not conclusive. WIGRAM, V. C., in Lee v. Pain, 4 Hare (Eng.) 219, 221, 233; SUGDEN, C., in Russell v. Dickson, 2 Dr. & W. (Eng.)_139. See also Hooley v. Hatton, 1 Bro.C.C.(Eng.) 390, n.; Allen v. Callow, 3 Ves. (Eng.) 289; Mackenzie v. Mackenzie, 2 Russ. (Eng.) 272; Wray v. Field, 2 Russ. (Eng.) 257; s. c., 6 Madd. (Eng.) 300; Barclay v. Wainwright, 3 Ves. (Eng.) 462; Wms. Exrs. (7th Eng. ed.) 1290; Manifold's Appeal, 126 Pa. St. 508. 1. Wms. Exrs. (7th Eng. ed.) 1292; Rop. Leg. (2nd Am. ed.) *1007, *1012; Benvon v. Benyon, 17 Ves. (Eng.) 34; Hurst v. Beach, 5 Madd. (Eng.) 351, 358. See In re Zeile, 74 Cal. 125, 131. "The court raises this presumption only where the double coincidence occurs of the same motive and the same sum in both instruments. It 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." LEACH, V. C., in Hurst v. Beach, 5 Madd. (Eng.) 351, 359- See MacKinnon v. Peach, 2 Keen (Eng.) 555; Lord v. Sutcliffe, 2 Sim. (Eng.) 273. It must, however, be clear that the testator is expressing a motive and not merely giving a description. Thus where the same annuities were given by will and codicil to "my servant E H," the words were held descriptive only. Roch v. Cullen, 6 Hare (Eng.) 531. See also Suisse v. Lowther, 2 Hare (Eng.) 424; Wilson v. O'Leary, L. R., 12 Eq. (Eng.) 522; L. R., 7 Ch. D. (Eng.) 448. 2. LEACH, V. C., in Hurst v. Beach, 5 Madd. (Eng.) 351, 359. See St. Albans v. Beauclerk, 2 Atk. (Eng.) 636; Coote v. Boyd, 2 Bro. C. C. (Eng.) 521; |