case the duke of saint Alban versus miss caroline beauclerk and other February  at Lord chancellor house by consent where the same specific thing be give by  two codicil it can be only consider as a repetition the same rule as to legacy  of the like sum or of the like quantity or thing though give in different  write unless it can be show it be the testator intention to make they addition  legacy of great sum value or quantity give by a last than by a first codicil  be not additional but augment one legacy of less sum or quantity or value give  by the last than by the first codicil be not additional but ademptions or  diminution pro tanto Diana duchess dowager of saint Alban make her will in and  after dispose thereby of some of her personal estate as to the residue say my  intention be to dispose thereof by a codicil or codicil sign by I which  codicil or codicil I do direct and appoint to be part of and to have the full  effect of my last will and testament notwithstanding any defect in point of  form or otherwise on the that of October she make a codicil in and she make  two other not to the present purpose on the that of September she make a four  codicil under which the particular legatee claim additional legacy but the  residuary legatee contend it be by the frame and meaning of it intend to be  substitute in the place of the first codicil after very long argument the Lord  chancellor declare he think it a case of very great difficulty and take time  till the that of July when he give his opinion state large the two codicil the  material part whereof be as follow compare each article with the opposite  columns atkins first codicil four codicil by virtue and in pursuance of the  power the same introduction by virtue c reserve in my last will and testament  I do declare that this write shall be codicil to and part of my will I give  and bequeathe videlicet to Lord Henry beauclerk pound to Lord Henry pound to  Lord George pound to Lord George pound to Lord aubery pound to Lord aubery  pound to Lord veer pound worth of either to Lord for e pound worth of either  picture china or japan picture china japan or furniture to Lord Sidney pound  worth of either to Lord Sidney pound worth of either picture furniture or  plate picture plate or furniture to Lord James pound of plate book to Lord  James pound worth of furniture or furniture china or plate to miss Caroline my  single stone diamond the legacy to miss Caroline her old ring son his wife and  lady die in the same to my old son my ruby ring word as by the first codicil  to his wife my emerald earring to lady die my ruby earring with pearl drop to  web my woman pound for her diligent to my woman web pound for her diligent  honest faithful service honest faithful service to Catharine dickens pound to  Catharine dickens pound to die wife pound to die wife pound to James Buchanell  pound to James Buchanell pound Biar the cook pound to Francis Biar the cook  pound no all her servant one year wage to t Jones pound and to the rest her  servant one year wage to several person legacy of china to lady Diana all her  china to several person small legacy both specific and pecuniary of who no  notice be take in the four codicil atkins er p and now I desire that what  remain in money c may be apply to the best use for the advantage and increase  of miss Caroline Beauclerks fortune which I leave to the fidelity discretion  and care of my executor and son Lord Sidney veer Henry George and James and  now I desire that whatever remain in money c may be apply to the best use for  the advantage and increase of miss Caroline Beauclerks fortune which I leave  to the discretion care and fidelity of my executor and son lord for Sidney  George and Henry atkins upon these two codicil the principal question that  have be make be whether the legacy give by the four codicil to the same person  to who legacy be also give by the first ought to be consider as addition to or  ademptions or variation of those legacy give by the first and this question  divide itself into different part accord to the nature of the legacy videlicet  first where the same specific thing or corpus be give by both codicil for  instance the ruby ring there in the nature of the thing it can be but a  repetition there be no pretence there be two ruby ring or the like bro Charles  Rep second where legacy of the same sum of money or of the like quantity or  value of thing be give by both if these have be insert in the same write all  the book of the civil law agree they will be only repetition and not addition  or duplications and in the reason of the thing and accord to the best  authority these legacy be in different write will make no difference unless it  can be show it be the duchess intention to make they addition instead of that  I think her intention appear to the contrary note Lord Bathurst in Hooley v  Hatton bro Charles Rep read this passage from Lord hardwicke original note  thus I be of opinion that upon the reason of the thing and accord to the best  writer these legacy be in different write will make no difference in this case  three when legacy of great sum value or quantity be give by the last than by  the first I think this fall under the same rule videlicet that they be not  additional ut augment or increase legacy fourthly where legacy of less sum or  quantity or value be give by the last than by the first I think these be not  additional but accord to the circumstance and the intention of the testatrix  ademptions or diminution pro tanto my reason be borrow from the text civil law  which as it often happen take these difference more rational than the  commentator do and in this I have be assist by a eminent civilian that text  put it all along on the intention of the testator and on the will and codicil  make but one instrument it turn the proof rather on the legatee than the  executor digest lib t de bequest fide undertaking law si eaden res spius to  send with a commission in eoden will c usque ad that which divides dig lib t  de adimend well to bear bequest law this lib t de test prsumptionibus law de  legato in testament in notepad relict in Gotofreds note upon this law he lie  it down that the heir be not bind to prove both the will and codicil note Lord  Hardwicke quote gothofred no indeed hres earlier times to make good empty  space of structure be non holding but do not speak of prove both will and  codicil as he be represent to do in the report per Lord Bathurst in the  abovenoticed case of Hooley v Hatton there be another law in the digest lib t  de bequest et fide undertaking law de dvobus exemplariis be tabul atkins will  eoden tempore exemplarii causan script the same patrisfamilias to carry out in  second person centum in second person fifty aurei bequest are firebrand a bag  of hide bequest nullo modus to withhold send only fifty aurei there be a law  in the Code more apposite than any yet mention lib t de notepad law de  codiciliis contrary cum to put forth an orphan boy your mother to visit time  ac dissonant will duos notepad ordinasse in doubt non go for sale id quod  prior codicillo inscripsera per the dawn in who postea secreta will sum To  bring together si a earlier times tenore discrepa contrarian will to hold  together call back be it appear to I from hence that the true rule which  result from all these passage in the Code and digest be this that the apparent  intention of the testator must govern atkins er p in double legacy and though  most of the commentator say the proof be to lie on the other side yet they too  put it upon the intention this be so consider second the internal evidence  that appear upon these two codicil to show it be not the intention of the  testatrix all these legacy shall stand together note then Lord Hardwicke  consider the internal evidence and add by the power reserve in her will she  have show her intent to make they one instrument which word be omit in the  report per Lord Bathurst in Hooley v Hatton the frame of the will be  considerable for she give no legacy by that but show her intention to give all  by the codicil and though a codicil be in its nature part of the will full v  Hooper Ves and a extension of the intention of the testator yet it be make  strong by this expression of she et to be in to see I have look into a large  number of the commentator upon the civil law who though they have throw a  great cloud upon the text yet seem to agree in this that where it be in the  same write there can be but one legacy demand Garth v Meyrick and greenwood v  greenwood bro Charles Rep but by where a large legacy be give after a less  curry v pile bro Charles Rep and here she have make no codicil but under the  power reserve to her by the will but what create a more material observation  be that she have here in many instance give the same specific thing by both  codicil and the quantity and value of the good be as to two three the same and  in these variant only in a single circumstance for instance pound worth of  plate book or furniture in one and pound worth of furniture china or plate in  the other now can it ever be imagine that she will have do this if she intend  to give two legacy as to Lord veer her meaning must be to extend his election  as to other sort of furniture for in the first codicil it be to Lord veer  beauclerk pound atkins worth of either picture china or japan and in the four  codicil to Lord veer beauclerk pound worth of either picture china or japan or  furniture another reason and still strong arise out of the body of the codicil  themselves and that be the legacy to her servant and particular to her woman  web by the first codicil she say I give to web my woman a legacy of pound for  her diligent honest faithful service by the four codicil she say I give to my  woman web a legacy of pound for her diligent honest faithful service can it be  conceive that she will give these two legacy to mrs web and all for the same  cause now the commentator on the civil law agree that where another legacy be  give for the same cause though in different instrument there shall not be a  double legacy this doctrine be admit by Mr justice Aston in Hooley v Hatton  and by Lord Thurlow in ridge v Morrison l bro Charles Rep Minochius de  Prsumptionibus in the margin of Swinburn to edit as to the legacy of one year  wage to her servant which be a ordinary gift from person of rank it can never  be imagine that she intend to give more and therefore this be a strong  corroboration of my opinion as to the point in general as to the legacy of the  rest and residue to miss Caroline beauclerk which be as many word the same in  the first and four codicil it be only a repetition and may serve to explain  her meaning as to all the other legatee and make it manifest she intend to  substitute one codicil in the place of another Cambell v earl of Radnor bro  Charles Rep coote v Boyd bro Charles Rep Moggridge v Thackwell bro Charles Rep  but the general rule seem to be that where a testator give a legacy by a  codicil as well as by a will whether it be more less or equal to the same  person who be a legatee in the will speak simpliciter it be a accumulation and  it be incumbent on the executor to produce evidence to the contrary if he  contest such accumulation Wallop v Hewett Charles Rep Hooley v Hatton bro  Charles Rep full v Hooper Ves ridge v Morrison bro Charles Rep foy v foy  ibidem upon the whole with regard to the legacy of good or money where the  second be less it must be consider only as a repetition and construe in  diminution of the former pro tanto but where it be great then as a  augmentation or addition to her bounty the great difficulty be as to a legacy  give to Mr wise by the first codicil subsequent to the give therein legacy of  pound each to three of her son as aforesaid atkins er p in these word I now  allow of pound to Mr wise out of the pound I leave to my three son to be pay  quarterly for his life or till some place or other provision be make for he No  manner of notice be take of he in the four codicil he be consequent to have  his pound a year but then what fund must it come out of atkins the two son  legacy of pound each be now reduce to pound each and the three Lord Auberys  lapse by his death in the lifetime of the duchess the strict rule of equity  must be observe videlicet as the son legacy be diminish in the proportion of  three ten each let each of they pay only three ten of the par and and the  other seven ten be pay out of the residuum of the personal estate which be  augment by the variation I shall but brief consider the case which have be  cite against the opinion I have give with regard to the double legacy the  first authority be Swinburne part c fol edit who say that where a certain  quantity be twice bequeathe it be twice due if in two distinct write as in a  will and codicil and put it on their be in two distinct write and it be true  some of the authority be so but here the codicil be let in as part of the will  it be otherwise and Swinburne himself in the fol edit put the case that if the  testator do bequeathe to one man pound and afterward in the same testament  bequeathe to the same man a pound the second disposition be understand to be  but a repetition of the former and all but one legacy c and afterward in the  same paragraph he say where two equal sum be leave to one person the one  quantity in one write and another quantity in another suppose pound in the  testament and another pound in the codicil here the legatary may recover pound  as two several legacy except the executor prove the testator meaning to be  contrary now in the present case this be plain prove by the best kind of  evidence the word of the will itself Menochius cite in the margin of Swinburne  say si ob the same causan magnitude sit uni in to visit scripture relict puta  alimentor causan centum relict are that centum so much semel prpound to stand  to withhold Menoch Prsumpt l prs n I can see the force of that particular  alimentor causan for why may not the testator double that as well as any thing  else another authority cite against my opinion be the case of master versus  master p W before sir Joseph Jekyll the first reason there give in page will  not support the determination as it be plain by all the book of civil law  where two legacy be give under the same will that one of they be void and the  only doubt there about legacy to the same person be where they be give in  different instrument atkins and sir Joseph Jekyll seem rather to have go on  the conclude reason find on the additional estate which be a very material  circumstance and if it have be prove here there be any considerable variation  in the duchess fortune it will be very material but as it be probable he have  not time to look into the book of civil law so well as I have do now and as in  the case put by Swinburne there be nothing of that internal evidence which be  here in the decree I shall make I declare that the legatee here be entitle  only to the legacy under the four codicil and shall give these direction to  the register a question arise on the construction of the first and four  codicil to the duchess of saint Alban will whether such c person to who any  pecuniary legacy or any legacy consist in quantity or value in plate book  japan china or furniture or any of they give by both the say codicil be  entitle to both the say legacy or only to one of they I declare that such  person be not entitle to both but only to the legacy give by the last codicil  Reg lib a fol atkins er p