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lay hold of any minute circumstances whereupon to ground an exception to it (n)

Thus the presumption of satisfaction shall not be made, where the debt was not contracted till after the making of the will :

Presumption for the testator could not have intended by the legacy satisfaction to have satisfied a debt which did not then exist (o): 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 (9).

Aga'n, where a legacy is at all contingent or uncertain, it shall not be deemed a satisfactio. 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 (8) ; 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

uncertain :

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 differeni 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 r. 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 0. 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 r. Mathews, 2 Ves. Sen. 636, and of Lord Alvanley in Hinchcliffe 0. Hinchcliffe, 3 Ves. 529, and of Lord Cottenham in Thynne v. Glengall, 2 H. L. C. 153. See also Hales o. 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 o. Bennet, 2 P. Wms. 343.

(p) Rawlins v. Powel, 1 P. Wms. 299.
() Carr v. Eastabrooke, 3 Ves. 561.
(r) Nicholls v. Judson, 2 Atk. 300.
(8) Compton v. Sale, 2 P. Wms. 553.


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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 tespayable atery on death of tator : 46 for the debt is due at the death of the testator, testator :

and therefore the legacy must be so too (w). Thus, in (t) Devese v. Pontet, 1 Cox, 188 ; an intimation that it was intended as Thynne v. Glengall, 2 H. L. C. 154.

payment, and not as a gift." (u) Alleyn v. Alleyn, 2 Ves, Sen. 37. So, where the legacy and the debt are Forsight v. Grant, 1 Ves. 298.

for distinct amounts, Stone o. Pennock, 46. Although for the exact amount of 31 Mo. Ap. 544 ; or where there is a the debt it will not be a satisfaction if pecuniary legacy of less amount and a made payable two years after testator's specific legacy of greater value, with a death, Phillips v. McCombs, 53 N. Y. gift of the residue to others, Strong v. 494 ; or when the legatee arrives at the Williams, 12 Mass. 391 ; or where the age of twenty-one, Van Riper v. Van gift is by a devise charged with payRiper, 1 Green Ch. 1 (the will contain- ment of one-half testator's debts, Smith ing a general direction to pay debts) ; v. Smith, 1 Allen 129 ; and the devisee Deichman v. Arndt, 4 Dick. (N. J.) 106 may in such case enforce the claim by (the provision being a devise of land and bill in equity against his co-executor, to a share of the residuary estate, exceed- whom a similar devise of other property ingin value the amount of the debt, to be was made. So, where the creditor is held in trust until that time). So, where made residuary legatee and accepts the nearly all of the debt was contracted testator's property in France in lieu of subsequently to the making of the will, all claims, and the American property is and there was a general direction to devised to other persons, Caulfield v. pay debts. Heisler v. Sharp, 17 Stew. Sullivan, 21 Hun 227. So, where the (N. J.) 167. So, in general, where there debt grows out of the testator's personal is a direction to pay debts whether the relation as guardian of the legatee, legacy is smaller than the debt, Fort v. Crouch v. Davis, 23 Gratt. 62 ; or is an Gooding, 9 Barb. 371 ; or larger, Edelen unliquidated liability for laches as V. Dent, 2 Gill & J. 185 ; Eaton 0. guardian, Dey v. Williams, 2 Dev. & B. Benton, 2 Hill 576 (although the sery- Eq. 66 (all the provisions of the will beices were rendered in expectation of ing made expressly subject to the pay. the gift); or a smaller pecuniary legacy ment of testator's debts). So, a specific with an annuity, Rogers v. Hand, 12 legacy to A. will not discharge the Stew. (N. J.) 270. In this case it was testator's liability to him as administrawell said by Chancellor Runyon that tor for distribution of his father's estate. “it would be far more in accordance Perry 1). Maxwell, 2 Dev. Eq. 488. with the principles of sound construc- (3) By Lord Hardwicke, in Clark 0. tion to hold that the legacy was intended Sewell, 3 Atk. 96. See also Atkinson as a bounty, and not as a satisfaction of 0. Webb, Prec. Chanc. 236. Nicholls indebtedness, unless there appears to be 0. Judson, 2 Atk. 300. Mathews 0

ent nature.

Mathews v. Mathews (y), Sir Thomas Clarke, M. R., said, that he remembered a case before the Lord Chancellor (Lord Hardwicke) where an old lady, indebted to a servant for wages, by will gave ten times as much as she owed, or was likely to owe : yet because the legacy was made payable in a month after her own death, the court laid hold of that circumstance to take it out of the general rule (2).

A further exception may be found in cases where the legacy and debt are of a different nature (a); as where the testator

where legacy and is indebted by bond, and bequeaths an interest in land debt are of differto his creditor (8). So in Bartlett v. Gillard (c), a leasehold estate of the testator's was subject to an annunity of 121. to Mrs. *Bartlett for her sole use, to be paid to her half yearly, on the 27th of January, and the 27th of July : He devised all his lands, in which the leasehold was included, to Richard Gillard, paying to Mrs Bartlett 121. per annum, by half yearly payments, to be made on the 27th of January and the 27th of July : The Lord Chancellor held, that although the amounts of the two annuities and the days of payment were precisely the same, yet as the second was charged upon the freehold as well as the leasehold property, and was payable to Mrs. Bartlett generally and not to her separate use, this was sufficient to repel the presumption that the second annuity was intended as a satisfaction of the first, and that consequently both were payable. In Fourdrin v. Gowdey (a), a testator, under his wife's appointment, was entitled to her residuary estate, charged with her pecuniary legacies, including one of 1001. to Anna Jewitt, and another of 1001. to Mary Ann Myers,

Mathews, 2 Ves. Sen. 635. Haynes v.
Mico, 1 Bro. C. C. 129. Jeacock v.
Falkener, 1 Bro. C. C. 295. Adams
9. Lavender, 1 M'Clel. & Y. 41.

(y) 2 Ves. Sen. 636.

(2) In Richardson v. Greese, 3 Atk. 69, Lord Hardwicke said, that legacies to servants had never been hield to be in satisfaction of debts. But this case mentioned by Sir T. Clarke, and also Chancey's Case, 1 P. Wms. 408, seem to decide that they are to be so considered, unless there are circumstances to take the case out of the general rule.

(a) See the observations of Lord Hardwicke in Bellasis v. Uthwatt, 1 Atk. 428.

(6) Eastwood o Vinke, 2 P. Wms.

614. Richardson v. Elphinstone, 2 Ves. 463.

(c) 3 Russ. Chanc. Cas. 149.

(d) 3 M, & K. 409. And in Fairer v. Park, 3 C. D. 309, Vice-Chancellor Hall in his judgment says:

This case seems to me to be within the principle stated by the M. R. in Fourdrin v. Gowdey, where he says it is ' a question not of satisfaction but performance,' and also within the case of Rowe v. Rowe (2 De G. & Sm. 294, 298), in which Sir J. Knight Bruce referred to Lord Lyndhurst's observation in Bartlett v. Gillard, ubi sup., that the circumstance of the gift of one annuity being for separate use, and another not, is a material fact."


who was a married woman, to her separate use, independent of her husband; and it was left to his discretion either to pay the charges in his lifetime, or to direct them to be paid by his executors : He did not pay them in his lifetime ; but, amongst other legacies, which by his will he directed his executors to pay, was a sum of 500l. to Anna Jewitt, and a sum of 100l. to Mary Ann Myers, not limited to her separate use : Sir J. Leach, M. R., held that the sum of 1001. given to Anna Jewitt by the appointment of the wife, was satisfied by the 5001. bequeathed by the testator ; and that the sum of 1001. bequeathed to Mary Ann Myers was in addition to, and not a satisfaction of, the 1001. given to her separate use by the wife.

*Again, a legacy of a specific chattel, however great its value, will Legacy of specific not be a satisfaction of a debt; unless the testator bechattel generally a satisfaction queaths it with such condition expressed, and the legatee of debt.

accepts it by way of satisfaction (e). It must also be observed, that the presumption of satisfaction may be counteracted by other parts of the will: As where the legacy appears to be given diverso intuitu, some particular purpose being ex. pressed as the ground of the bequest (f): or where there is an express direction in the will for the payment of all debts and legacies (9).

A legacy given by a parent to a child is regarded, with respect to the rule in question, in the same light as a legacy to a stranger (k): Nor is a legacy given by a husband to his wife considered upon any different footing (i).


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(C) Byde v. Byde, 1 Cox, 49.

C. D. 260, the decision in Edmunds r. (f) Mathews o. Mathews, 2 Ves. Sen. Low, ubi sup., was disapproved by Kay, 635. Post, p. *1167, note (9).

J., who held that a direction by a testa(g) Chancey's Case, 1 P. Wms. 410, tor that his “ debts are to be paid is 411. Richardson 0. Greese, 3 Alk. 68. sufficient, without the further direction Field v. Mostin, 2 Dick. 543. Hales to pay “legacies,” to exclude the prev. Darell, 3 Beav. 324. Lethbridge sumption that a legacy to a creditor v. Thurlow, 15 Beav. 334. Jeffries v. equal to, or exceeding the debt, is a Mitchell, 20 Beav. 15. Wathen 0. satisfaction of the debt. A liability on Smith, 4 Madd. 331. Charlton v. West, a covenant made on marriage is a debt 30 Beav. 124. Edmunds v. Low, 3 within the meaning of a direction “to Kay & J. 318, in which last case Wood, pay debts : " Cole o. Willard, 25 Beav. V.-C., held that a direction to pay debts 572, 573, dissenting from Sir J. Leach's (without more) is insufficient to rebut opinion in Wathen v. Smith, ulr supra. the presumption. See, however, contra, (1) Tolson o. Collins, 4 Ves. 483, port, Cole v. Willard, 25 Beav. 568. Glover

p. *1168. 0. Hartcup, 34 Beav. 74, and compare (2) Fowler o. Fowler, 3 P. Wms. 353. Atkinson v. Littlewood, L. R. 18 Eq. Re Fletcher, 38 C. D. 373. 595. In the late case of Re Huish, 43


It is said that a legacy shall in all cases be construed as a satisfaction, in case there be a deficiency of assets (k).

of the satisfac.

With respect to the satisfaction of portions by legacies, the rule has been established, with much fewer exceptions *than that with regard to the satisfaction of debts, that where tion of portions

by legacies. a parent is under obligation, by articles or settlement, to provide portions for his children, and he afterward makes a provision by will for them, such testamentary provision shall, prima facie, be presumed to be a satisfaction or performance of the obligation (1). The strong inclination of the courts against double portions has caused this rule to be applied without much relaxation (m).

If, therefore, the bequests be less in amount than the portions, or payable at different periods, such legacies will, notwithstanding, be considered satisfactions, either in full or in part according to circumstances (n). So though a gift of a whole or part of a residue cannot be considered as a satisfaction of a debt (o), yet it


be a satisfaction of a portion altogether, or pro tanto according to the amount (p).

But this presumption may be repelled or fortified by intrinsic evidence derived from the nature of the two provisions. Presumption of Where the two provisions are of the same nature, or

pelled or fortified

by intrinsic evi. there are but slight differences (2), the two instruments

dence. #afford intrinsic evidence against a double provision :



(k) Toller, 337.

(?) Bruen V. Bruen, 2 Vern. 439. Copley 0. Copley, 1 P. Wms. 147. Moulson o. Moulson, 1 Bro. C. C. 82. Ackworth o. Ackworth, 1 Bro. C.C. 307, note. Weall 0. Rice, 2 Russ. & M. 251. Papillon 0. Papillon, 11 Sim. 642. Thynne o. Glengall, 2 H. L. C. 131.

(m) See also infra, Pt. III. Bk. III. Ch. III. S II., as to the ademption of legacies given as portions,

(n) Jesson 0. Jesson, 2 Vern. 255. Byde 0. Byde, 1 Cox, 44.

Warren v. Warren, 1 Bro. C. C. 305. Finch v. Finch, 1 Ves. 534. Thynne o. Glengall, 2 H. L. C. 153, 154. See Fazakerley v. Gillibrand, 6 Sim. 591.

(6) Ante, p. *1163.

(p) Thynne 0. Glengall, 2 H. L. C. 131, 154. Dawson 0. Dawson, L. R.

4 Eq. 504. Nevin 0. Drysdale, L. R. 4 Eq. 517.

(9) Per Turner, L. J., in Coventry v. Chichester, 2 Hemm. & M. 149. Chi. chester o. Coventry, L. R. 2 H. L. 71. Campbell v. Campbell, L. R. 1 Eq. 383. Russell v. St. Aubyn, 2 C. D. 398. It is not possible to define what are to be considered as slight differences between two provisions : Slight differences are such as, in the opinion of the judge, leave the two provisions substantially of the same nature; and every judge must decide that question for himself ; By Sir J. Leach, M. R., in Weall v. Rice, 2 Russ. & M. 268. McCarogher v. Whieldon, L. R. 3 Eq. 236. Where the legacy is contingent, it shall not be considered a satisfaction of the portion : Bellasis v. Uthwatt, 1 Atk. 426, 428.

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