has expressed. Thus, where the Court raises the presumption against the intention of a double gift, by reason that the sums and the motive are the same in both instruments, it will receive evidence that the testator actually intended the double gift he has expressed. In like manner, evidence is received to repel the presumption raised against an executor's title to the residue, from the circumstance of a legacy given to him; and to repel the presumption that a portion is satisfied by a legacy. In all these cases, the evidence is received in support of the *apparent effect of the instrument, and not against it. Here the evidence tendered is not in support of the apparent effect of the instrument, but directly against it. This codicil leaves unrevoked the former legacy of 300l. to the defendant, and makes to him a further substantive gift of 500l. The evidence tendered is, that the testatrix did not mean this as a further gift of 500l., but meant to substitute the 5007. in the place of the former 300l. I am of opinion, therefore, that such evidence cannot be received without breaking in upon the primary rule, that parol evidence is not admissible against the expressed effect of a written instrument" (e). In Guy v. Sharp (f), Lord Brougham decided, that evidence of a testator's declarations of his meaning and intention were inadmissible, upon the question whether a legacy was cumulative or substitutional: His lordship, however, admitted depositions relating to the amount of the testator's property, and the circumstances of his family, to be read de bene esse. It became unnecessary to decide the point as to their admissibility, the learned judge being of opinion, that even if admitted, the evidence would not alter the conclusion to be arrived at upon a due regard to the construction of the instruments themselves. But his lordship adverted to the manifest difference between the declarations, whether verbal or written, of a testator, and the proof of facts and circumstances, by the knowledge of which, the court, when called upon to construe, may be placed in the same situation with the party who made the instrument, and may thereby be the better able to understand his meaning (g). Substituted or added legacies subject to the incidents of the original gift. *It may be here mentioned, as a general rule, that where one legacy is given as a mere substitution for another, the substituted gift is subject to the incidents of the original one, although it is not so expressed in the testamentary instrument (h).44 So added legacies shall, generally speaking, be subject to the same conditions and incidents as those to which they are added (i). But this is not a universal rule (k), and it is only where the subject of the first gift is given absolutely, or made defeasible, that the second gift has been held to be given on similar terms: For the doctrine has never been extended so far as to alter an absolute second gift into an estate for life only, and then to the party who was named in the first gift to take after that legatee's death (7). SECTION VIII. Of the satisfaction of debts and portions by legacies. Of the satisfac It is a rule established in the courts of equity, that where a debtor bequeaths to his creditor a legacy equal to, or exceeding the amount of, his debt, it shall be presumed, in the absence of any intimation of a contrary intention,45 the second codicil. In this case also a letter written to the testator by his solicitor advising him to recopy his first codicil was held inadmissible. (h) Leacroft v. Maynard, 1 Ves. 279. Cooper v. Day, 3 Meriv. 154. Shaftesbury. Marlborough, 7 Sim. 237. Day v. Croft, 4 Beav. 561. Bristow v. Bristow, 5 Beav. 289. Post, p. *1505 et seq. (where the cases as to legacy duty are collected). See also Duncan v. Duncan, 27 Beav. 392. Johnstone v. Lord Harrowby, 1 De Gex, F. & J. 183, coram Lord Campbell, C. Re Corrie's Will, 32 Beav. 426. Fisher v. Brierley, 30 Beav. 267. Secus, where the latter legacy is a distinct substantive bequest: Chatteris v. Young, 2 Russ. Ch. C. 183. Alexander v. Alexander, 5 Beav. 518. Haley v. Bannister, 23 Beav. 336. 44. E. g., where the original devise was subject to deduction for maintenance and education of A., and after 39 tion of debts by legacies. sale of the land a codicil substituted the purchase money mortgage for the land. Condict v. King, 2 Beas. 375. So, where the original legacies were expressly payable after other preferred legacies. Barnes v. Hanks, 55 Vt. 317. (i) Cooper v. Day, 6 Madd. 31. Shaftesbury v. Marlborough, 7 Sim. 137. (k) Overend v. Gurney, 7 Sim. 128. Re More's Trust, 10 Hare, 171. And it cannot be applied unless it is consistent with the terms of the gift and the scope of the rest of the will: King v. Tootel, 25 Beav. 23. (1) Mann v. Fuller, Kay, 624. 45. The presumption of satisfaction is not favored by the courts, Van Riper v. Van Riper, 1 Green Ch. 1; and seems to have been ignored or denied in Patridge v. Patridge, 2 Harr. & J. 63; Cloud v. Clinkinbeard, 8 B. Mon. 397; although the legacy was greater than the debt and greater than legacies to [*1162] that the legacy was meant by the testator as a satisfaction of the debt (m). *This rule, however, though it has long prevailed, has met with the censure of several eminent judges; and the courts have inclined to others of the same class as the legatee, Dahmann v. Schreiner, 4 Mo. Ap. 587. So, where the debt was an unliquidated account for services and the legacy was for a larger sum than that claimed. Horner v. McGaughy, 62 Pa. St. 189. Whether it is to be taken as a satisfaction of the debt is a question of intention, Fitch . Peckham, 16 Vt. 150; and the intention must clearly appear, Sheldon v. Sheldon, 133 N. Y. 1; Morris v. Morris, 3 Houst. 508; e. g., that the services for which the legatee makes claim were rendered on the faith of the gift, Estate of Zehender, 15 Phila. 566; or that the debt and legacy correspond exactly as to amount and time of payment, Allen v. Merwin, 121 Mass. 378. The presumption will be supported where the will directs the cancellation of a mortgage by A. to testator on payment of $1600, and that sum with testator's debt to A. amounts to the face of the mortgage. Williams v. Crary, 5 Cow. 368; S. C. 8 Id. 246. So, a covenant for support of A. will be satisfied by a gift of a sum of money, an annuity, and one-half of the residuary estate, Petrie v. Voorhees, 2 C. E. Green (N. J.) 285; Zabriskie, C., saying in this case, "This was no doubt intended by him as a provision for the support he had agreed to (m) Brown v. Dawson, Prec. Chanc. 240. Talbot v. Shrewsbury, ibid. 394. Fowler v. Fowler, 3 P. Wms. 353. Richardson v. Greese, 3 Atk. 65. Gaynon v. Wood, 1 Dick, 331. Hammond v. Smith, 33 Beav. 452. Atkinson v. Littlewood, L. R. 18 Eq. 595. Re Fletcher, 38 C. D. 373. So a legacy may operate as a satisfaction of a furnish her, and if adequate, must be taken to be a satisfaction of his obligation to support her. Its adequacy cannot be measured by the usual rule, which is that the legacy must be equal to the debt." So, a contract to devise certain lands will be satisfied by a legacy of greater value accepted for twelve years by the legatee in lieu of the devise. Towle v. Towle, 79 Wis. 596. In some cases the intention is sufficiently expressed in the will, as in a legacy to A. “ being borrowed money due her," Matter of Thompson, 5 Dem. 393; or "including money trusteed at the N. Bank" (the legacy being larger than the debt in the attachment suit), Brainard v. Darling, 132 Mass. 218. So, notwithstanding a direction to pay debts, if any, where a legacy is given to the wife in lieu of dower, "or any other claim she may have against my estate." Rusling . Rusling, 15 Stew. (N. J.) 594. In this case the money legacy was twice as great as the debt, but payable expressly one year after testator's death, and there was a further and larger provision for the legatee's lifetime. And the facts that the legacy was larger than the debt, and was given "after payment of debts," and was coupled with another legacy to the first legatee's daughter, and covenant: Wathen r. Smith, 4 Madd. 325. But see Cole . Willard, 25 Beav. 568. Charlton v. West, 30 Beav. 124. But where the legacy is of less amount than the debt, it shall not be deemed a part payment or satisfaction: Cranmer's Case, 2 Salk. 508. Graham e. Graham, 1 Ves. Sen. 263. Thynne . Glengall, 2. H. L. C. 153, 154. lay hold of any minute circumstances whereupon to ground an exception to it (n) buttable. re Thus the presumption of satisfaction shall not be made, where the debt was not contracted till after the making of the will: Presumption of for the testator could not have intended by the legacy satisfaction to have satisfied a debt which did not then exist (0): Nor where the debt is due upon a current account; for the state of the account, and on whose side the balance lay, might be unknown to the testator (p): Nor where the debt was upon a bill of exchange, or other negotiable security; for the debt might have been transferred to a stranger by the legatee passing away the instrument (2). uncertain: Again, where a legacy is at all contingent or uncertain, it shall not be deemed a satisfaction of a debt (r). As where the Where legacy legacy is given upon the contingency of the legatee sur- contingent or viving a particular person or period (s); or where the legacy is of the whole or part of a residue; for it may *possibly turn out, after all the claims on the testator's estate are satisfied, that such that the debt was an unliquidated claim for services, have all been considered as tending to show that satisfaction of the debt was not the testator's intention. Reynolds r. Robinson, 82 N. Y. 103. So, the facts that the legacy was much smaller in amount than the debt, that the debt was unliquidated and payable in a different currency, and that the executor was directed to "be prompt in the payment of all of my debts." Gilliam v. Brown, 43 Miss. 641. On the other hand, if expressed to be in lieu of dower it will not be a satisfaction of a claim against testator for proceeds of real estate of the wife received by him and not accounted for. Boughton . Flint, 74 N. Y. 476. Such a legacy in lieu of dower, "and of any other right which by law she may be entitled to in my estate real and personal," means by the intestate law, and is not a satisfaction of a mortgage held by her on his land. Russell . Minton, 15 Stew. (N. J.) 123. So, a legacy to testator's housekeeper on condition of her bringing "no bill against my estate for services" will not be a satisfaction of a note given by him several years before. Farnham v. Barker, 148 Mass. 204. So, legacies to testator's sons A. and B.-to A. a release of his debts to testator and advancements, and a bequest of $500 and no more"; and to B. specific legacies and one-fourth of the residue of his estate-will be no satisfaction of testator's debts to them. Byrne v. Byrne, 3 Serg. & R. 54. (n) See the remarks of Sir T. Clarke, M. R., in Mathews v. Mathews, 2 Ves. Sen. 636, and of Lord Alvanley in Hinchcliffe . Hinchcliffe, 3 Ves. 529, and of Lord Cottenham in Thynne v. Glengall, 2 H. L. C. 153. See also Hales v. Darell, 3 Beav. 324, 332. Smith v. Lyne, 2 Y. & Coll. Ch. C. 345. Hassell v. Dawkins, 4 Drew. 468. (0) Cranmer's Case, 2 Salk. 508. Jeffs v. Wood, 2 P. Wms. 132. Thomas v. Bennet, 2 P. Wms. 343. (p) Rawlins v. Powel, 1 P. Wms. 299. (9) Carr v. Eastabrooke, 3 Ves. 561. (r) Nicholls v. Judson, 2 Atk. 300. (8) Compton v. Sale, 2 P. Wms. 553. [*1164] legacy is not of equal amount with the debt (t). So a provision by will that the legatee shall have the interest of a particular fund, or other proceeds, for life, shall not be deemed a satisfaction of a sum of money which the legatee is entitled to claim absolutely from the testator (u). Another exception to the rule exists in cases where the legacy is where legacy not not payable immediately after the death of the testator: 46 for the debt is due at the death of the testator, and therefore the legacy must be so too (x). Thus, in payable immedi ately on death of testator: (t) Devese v. Pontet, 1 Cox, 188; Thynne v. Glengall, 2 H. L. C. 154. (u) Alleyn v. Alleyn, 2 Ves. Sen. 37. Forsight v. Grant, 1 Ves. 298. 46. Although for the exact amount of the debt it will not be a satisfaction if made payable two years after testator's death, Phillips v. McCombs, 53 N. Y. 494; or when the legatee arrives at the age of twenty-one, Van Riper v. Van Riper, 1 Green Ch. 1 (the will containing a general direction to pay debts); Deichman v. Arndt, 4 Dick. (N. J.) 106 (the provision being a devise of land and a share of the residuary estate, exceeding in value the amount of the debt, to be held in trust until that time). So, where nearly all of the debt was contracted subsequently to the making of the will, and there was a general direction to pay debts. Heisler v. Sharp, 17 Stew. (N. J.) 167. So, in general, where there is a direction to pay debts whether the legacy is smaller than the debt, Fort v. Gooding, 9 Barb. 371; or larger, Edelen v. Dent, 2 Gill & J. 185; Eaton v. Benton, 2 Hill 576 (although the services were rendered in expectation of the gift); or a smaller pecuniary legacy with an annuity, Rogers v. Hand, 12 Stew. (N. J.) 270. In this case it was well said by Chancellor Runyon that "it would be far more in accordance with the principles of sound construction to hold that the legacy was intended as a bounty, and not as a satisfaction of indebtedness, unless there appears to be an intimation that it was intended as payment, and not as a gift." So, where the legacy and the debt are for distinct amounts, Stone v. Pennock, 31 Mo. Ap. 544; or where there is a pecuniary legacy of less amount and a specific legacy of greater value, with a gift of the residue to others, Strong e. Williams, 12 Mass. 391; or where the gift is by a devise charged with payment of one-half testator's debts, Smith v. Smith, 1 Allen 129; and the devisee may in such case enforce the claim by bill in equity against his co-executor, to whom a similar devise of other property was made. So, where the creditor is made residuary legatee and accepts the testator's property in France in lieu of all claims, and the American property is devised to other persons, Caulfield v. Sullivan, 21 Hun 227. So, where the debt grows out of the testator's personal relation as guardian of the legatee, Crouch v. Davis, 23 Gratt. 62; or is an unliquidated liability for laches as guardian, Dey v. Williams, 2 Dev. & B. Eq. 66 (all the provisions of the will being made expressly subject to the payment of testator's debts). So, a specific legacy to A. will not discharge the testator's liability to him as administrator for distribution of his father's estate. Perry . Maxwell, 2 Dev. Eq. 488. (2) By Lord Hardwicke, in Clark . Sewell, 3 Atk. 96. See also Atkinson v. Webb, Prec. Chanc. 236. Nicholls v. Judson, 2 Atk. 300. Mathews |