
    Dewitt and Wife against Yates, Executor of Yates.
    NEW YORK,
    May, 1813.
    Where, in a will, the same sum of money totTe“ameletokeoniyone of the sums The!atter stim is held a substitution, and is not taken cumulatively, unless there be some evident intention of the testator that they should be so considered, and it lies with the legatee to show that intention, and rebut the contrary presumption. But where the two bequests are in different instruments, as by a will in one case, and a codicil in another, the presumption is in favour of the legatee, and the burden of rebutting that presumption is cast on the executor. And the presumption in either case is liable to he controlled and repelled by internal evidence and the circumstances of the case.
    THIS was an action of debt for a legacy. The cause was . _. t _ tried, at the Saratoga circuit, m September, 1812. Peter Yates, by hfe last will, dated the 15th of August, 1807, bequeathed as fo “Item, I give to my daughter Maria’s children, of,her body, two hundred and fifty pounds; if any of the five children should decease before my decease, or after, the parts of the deceased shall come to the then living; each of them is to have fifty pounds when they come of age, or when they or either of them should marry."
    In a subsequent part of the will the testator having devised the half of a farm, &c. to his son-in-law, Philip Vanderbergh and his wife, and the other half to his wife, &c. directs as follows: "In consideration of which, it is my will, and I do hereby order, that the said Philip Vanderbergh, his heirs, &c. shall pay to the chil~ dren of my said daughter Maria, to wit, Sarah, (the wife of the plaintifi) John, Maria, Gatalina and Catharine, the sum of two hundred and fifty pounds, equal to 825 dollars, to be paid unto them and each of them, in sinus of fifty pounds, as they respectively shall arrive at the age of 21 years, or on the day that they or either of them shall marry ;" and appointed the defendant and three others his executors.
    It was proved that Philip Vanderbergh, the devisee, in October, 1807, paid to the plaintiffs the 50 pounds given to Sarah, the wife of the plaintiff, and named in the second clause of the will.
    It was admitted that a year had elapsed since the death of the testator; that the plaintiffs had duly demanded payment of the legacy, mentioned in the first clause, of the defendant, previous to the commencement of the suit; and had tendered and filed a bond according to the directions of the statute, and that the defendant had assets in his hands, after payment of all debts and -other legacies, sufficient to pay the legacy in question.
    The defendant offered a witness to prove that before and at the time the testator made his will, he expressed his intention to give one legacy to the children of his daughter Maria, and that was the legacy directed to be paid by Philip Vanderbergh ; but the evidence was objected to, and overruled by the judge.
    A verdict was taken for the plaintiffs, subject to the opinion of the court, on a case made.
    
      Huntington, for the plaintiffs,
    contended that the legacies were cumulative. They are distinct and separate legacies. The one in question was a vested legacy, payable by the executors out of the personal estate; no particular fund, or person, being named by the testator as charged with the payment. The second legacy was contingent, and might have lapsed. It was made a charge on Philip Vanderbergh, in consideration of the land devised to him and his wife.
    
    There is, then, a constructive difference between the two bequests, which will render them cumulative. The doctrine of a repetition of the same legacy, can only be objected, in an action for the second legacy. It does not apply to the first.
    The parol evidence was properly rejected.
    
    Skinner, contra,
    insisted that, if this was one and the same legacy, it could make no difference for which the suit was brought.. The internal evidence of the will was strong and satisfactory to show that the testator meant to give but one legacy to the children of his daughter Maria. If the second bequest is construed to be a cumulative legacy, it defeats the manifest intention of the testator to divide the property equally between his two daughters. The object ivas not to divide the farm among all the grandchildren ; but to give the whole to the wife of Vanderbergh, and that he should pay to the children of the other daughter 250 pounds. In both clauses of the will, the same sum is given, payable at the same time, and for the same cause. This clearly shows that it was a repetition of the same bequest, and not a different, or cumulative legacy.
    
    Again, the defendant offered extrinsic evidence to show the intention of the testator, which was rejected by the judge. Whether the testator by giving two legacies did intend that the legatee should take both, is a question of presumption which lets in every species of proof.
    
    
      
       3 Johns. Rep. 189.
    
    
      
      
        Toll. Ex. 336. Rob. on Wills, 439, 440. 9 East, 273. H. Bl 213. 1 Bro. C. C. 389
    
    
      
       2 Johns Rep 31. 2 11. Bl. 521.
      
    
    
      
      
         Toll. Ex. 334-336.
    
    
      
      
        Toll. Ex. 336. 2 Bro. C. C. 527, 528.
    
   Kent, Ch. J.

delivered the opinion of the court. This is the case of a sum of money given twice in the same instrument to the same legatee. The general rule, on this subject, from a review of the numerous cases, appears evidently to be, that where the sum is repeated, in the same writing, the legatee can take only one of the sums bequeathed. The latter sum is held to' be a substitution, and they are not taken cumulatively, unless there be some evident intention that they should be so considered, and it lays with the legatee to show that intention and rebut the contrary presumption. But where the two bequests are in different instruments, as by will in the one case, and by a codicil in the other, the presumption is in favour of the legatee, and the burden of contesting that presumption is cast upon the executor. The presumption either way, whether against the cumulation, because the legacy is repeated in the same instrument, or whether in favour of it, because the legacy is by different instruments, is liable to be controlled and repelled by internal evidence, and the circumstances of the case. (Godolphin’s Orphan Legacy, part 3. c. 26. s. 46. Swinb. part 7. c. 21. s. 13. Duke of St. Albans v. Beauclerk, 2 Atk. 636. Garth v. Meyrick, 1 Bro. 30. Ridges v. Morrison, 1 Bro. 389. Hooley v. Halton, ibid. 380. n. Wallop v. Hewett, 2 Ch. Rep. 37. Newport v. Kinaston, ibid. 58. James v. Semmens, 2 H. Bl. 214. Allen v. Callen, 3 Ves. jun. 289. Barclay v. Wainwright, ibid. 462. Osborne v. Duke of Leeds, 5 Ves. 369.) This question which appears to have arisen so often, and to have been so learnedly and ably discussed, in the English courts, was equally familiar to the civil law. The same rule existed there, and subject to the same control. (Dig. 30. 1. 34. Dig. 22. 3. 12. and the notes of Gothofrede, ibid. Voet, Com. ad Pand. tom. 2. 408. s, 34.) And Chancellor D’Aguesseau, in his Pleadings in the Case of the Deirs of Vaugermain, (Oeuvres, tom. 2. 21.)" adopts and applies the same rule to a case arising under the French law. The civil law puts the case altogether upon the point of the testator’s intention ; but then if the legacy was repeated in the same instrument, it required the highest and strongest proof to accumulate it. Evidentissimis probationibus ostendatur teslatorem multiplicasse legatum voluisse.

In the present case, what are the intrinsic circumstances to show" a manifest intent of the testator to multiply the legacy ? The only material variation in the two bequests is, that in the latter instance, the legacy was charged upon Philip Vanderbergli in respect of the real estate to him devised. But this affords no evidence of an intention to accumulate. The inferenóe is the other way. It was only strengthening the security of the legacy by means of the charge. There was no specified object; there Avas no assigned reason, or cause, as respected the legatees, for repeating the bequest. Courts have required some new, or additional cause, •for enlarging the bounty, before they have held it accumulative, unless the words of the A?ill clearly showed the intent. In a will, the testator gave double legacies to his daughters, but he added, in those cases, that they Avere in addition” to what he had before given; and the master of the rolls, in Barclay v. Wainwright, said that he laid considerable stress upon this, that where the testator meant addition, he expressed it. The Avhole will denotes throughout, a careful and studied apportionment of the testator’s estate among bis children, according to his opinion of their wants and circumstances; and he imposed several trusts and charges* probably, with a view to greater accuracy in the partition of his estate. He appoints four sons executors, but he charges his funeral expenses upon three, and his debts upon two of them. A small variation in the direction as to payment will not alter thy construction. In Halford v. Wood, (4 Ves. 76.) the legacy was an annuity of 30b for life, and in the one instance it was declared to be payable quarterly, and in the other instance, the will was silent as to the payment, and yet it was not held accumulative. So, also, in Greenwood v. Greenwood, (1 Bro. 31. n.) the one legacy was simply to Mary Cook, but the other was to Mary Cook “ for her own use and disposing, notwithstanding her coverture ;” and yet Lord Bathurst decreed that she was entitled to one legacy only.

As, then, the substituted legacy, in this case, has been paid by the devisee, on whom it was charged, the defendant is entitled to judgment

Judgment for the defendant.  