The remaining case to be noticed, is that of any legacy, whether specific or otherwise, which is advanced or given by the testator before his death, to the legatee. The rule is, that where a testator gives a legacy for a particular purpose, and afterwards accomplishes the purpose himself, the legacy is satisfied. The act of providing one's wife with ready money at his decease, so that she could control it without application to the executors, would not come within the rule.1 Questions of this kind frequently arise between parent and child, presenting the inquiry as to double portions in two aspects, one where there is first a marriage settlement providing for children of the marriage, and afterwards provisions by will, and the converse case of provisions being first made by will, and afterwards in some other form,-e. g., a marriage settlement. It is the last of these cases which is now under consideration, and which is the simpler of the two. There is a general presumption of law against double portions, and the difficulty lies in applying this presumption to particular cases as they arise. The whole subject received discussion and clear elucidation in the case of Lord Chichester v. Coventry.2 The facts of that case presented an instance of a marriage settlement preceding a will, but the whole subject was considered, and the discussion is highly valuable as to the present matter. There is a distinction in such cases between ademption and satisfaction. Ademption applies to the case where the legacy precedes the settlement; satisfaction, where the settlement precedes the legacy. In the first case, the legacy is considered to be "taken out" of the will (adeemed) by the subsequent advancement. Satisfaction is the more appropriate name for the second case, as the settlement had already created a claim. It has been defined to be the donation of a thing with the intention that it is to be taken, either wholly or in part, in extinguishment of some prior claim of the donee. The presumption against double portions may be rebutted by evidence to the contrary. (a) Intrinsic evidence may be found in the respective instruments. Thus, where the two provisions are of the same nature, or differ but slightly, the presumption is against the intention to create double portions. Otherwise, if the provisions are of a different nature. Ademption may be more easily inferred than satisfaction, since the testator has unlimited power to carry it into effect, while in 1 Pankhurst v. Howell, L. R. 6 Ch. App. Tudor, 382, 6th ed. note to Chancey's 136. Case). 2 L. R. 2 H. of L. Cas. 71. 2 Leading Cases in Equity (White & 267. 4 Weall v. Rice, 2 Russ. & M. 251, (a) See Lacon v. Lacon [1891], 2 Ch. 482. satisfaction the consent of the party having the claim must be obtained before something else can be legally substituted in its place.1 The case of ademption by payment before the testator's death may be provided for in the will itself. This case is still stronger than those already discussed, since there is positive evidence of an intent to adeem, instead of a mere presumption.2 3. Satisfaction. This topic has been partly anticipated in pointing out the distinction between it and ademption. The fundamental idea here is, that the legatee has a true claim against the testator, and a presumption is urged that the legacy satisfies the debt. This subject will be further considered under two general divisions: first, satisfaction in general, and second, as between parent and child, including "double portions." First. Satisfaction in general. It is a general rule of law, as well as of good sense, that a legacy "imports a bounty." It is apparently intended as a gift, and not as payment of debts. Still, it is equally plain that, if the debtor, in making a provision in his will in favor of a creditor, makes it sufficiently clear that he intends, through the form of a legacy, to discharge a debt, his intent must be carried out. Between these two propositions, there is debatable ground. An inquiry arises as to what shall be the presumed intent of the testator in case the will is silent when he gives a legacy to a creditor perhaps equal to or greater than the amount of the claim. The courts have, by force of decision, established a set of rules, to some extent artificial, which will be stated. Rule 1. A legacy of the same nature as a debt, equal or greater in amount, without special qualification, will be presumed to be given in satisfaction of the debt.3 Under this rule, land is not a satisfaction for money, nor money for land, not being of the same nature. Land should be given for land, and personal estate for personal estate. Rule 2. Slight circumstances are laid hold of by the courts to overcome the presumption. (a) A court of equity leans against satisfaction of debts by legacies. 1 Lord Chichester v. Coventry, supra, p. 87. The case of Earl of Durham v. Wharton, 3 Cl. & F. 146, is a leading in. stance of ademption; that of Lady Thynne v. Earl of Glengall, 2 H. of L. Cas. 131, of satisfaction. 2 Langdon v. Astor's Executors, 16 N. Y. 9, 33-57. In this case (one of ademption of a general legacy), the words The whole doctrine would "satisfaction" and "ademption" are used somewhat indiscriminately, though DENIO, J., in his opinion, says that “ademption' is the most significant. p. 40. Bengough v. Walker, 15 Ves. 507 512; Chaplin v. Chaplin, 3 P. Wms. 245. 4 Bellasis v. Uthwatt, 1 Atk. 426, 428. Lady Thynne v. Earl of Glengall, 2 H. of L. Cas. 131, 153. (a) Sheldon v. Sheldon, 133 N. Y. 1. now be rejected if it were new, and the courts will not extend it beyond its precise limits.1 Rule 3. A legacy in satisfaction of a debt must be of a fixed. amount, and not uncertain. It must be absolute, and not contingent.2 A gift of a residue cannot be a satisfaction of a debt, as the amount is in its nature uncertain, and may be less than the debt.3 So a debt is not even partially satisfied by a legacy of a less amount,* nor by one payable on different terms from the debt.5 Rule 4. Any special language in the will may introduce a different principle from the presumption which prevails when the will is silent. Under this rule, a legacy of a residue may show the intent of the testator to be a direction to pay a debt, and so be carried out pro tanto, if the residue be not equal to the debt. So, if the testator should use the words "after the payment of my debts," and then give legacies, among others, to a creditor, the special words would preclude the presumption that he intended the legacy to be in satisfaction of the debt." (a) Again, if a legacy be given in full satisfaction of all claims that the legatee may have against the testator, the word "claims " cannot be construed to include a claim belonging to the legatee's wife. If the testator, by mistake, describes the debt as larger than it is in fact, and there is no evidence on the face of the will of an intent to give the larger sum, except as being the amount of the indebtedness, only the amount actually due can be enforced.9 10 Rule 5. Parol or extrinsic evidence is admissible, both to show that the legatee was a creditor, and to fortify the presumption of satisfaction, as well as to rebut it,11 but not to alter the terms of the bequest. A legacy in satisfaction of all claims of A. could not be shown by such evidence to mean claims which A. held as executrix.12 Second. Satisfaction, as between parent and child. This case presents the subject of "double portions," not as in the case of 1 Richardson v. Greese, 3 Atk. 65, 68; Hassell v. Hawkins, 4 Drew, 468. 2 Spinks v. Robins, 2 Atk. 491. 9 Wilson v. Morley, L. R. 5 Ch. D. 776. This case was distinguished from Whitfield v. Clemment, 1 Mer. 402, to & Barret v. Beckford, 1 Ves. Sr. 519; De the contrary, for the reason that in the Vese v. Pontet, 1 Cox, Eq. 188. 4 Gee v. Liddell, 35 Beav. 621. Adams v. Lavender, 1 M'Cl. & Y. 41. 7 Jefferies v Michell, 20 Beav. 15. 135; aff'd 3 L. T. N. s. 799. last-named case there was evidence of an intent to confer a bounty. 10 Pole v. Lord Somers, 6 Ves. 309, 321. 11 Wallace v. Pomfret, 11 Ves. 542. 12 Dixon v. Samson, 2 Y. & C. 566; Parmiter v. Parmiter, supra. (a) Bradshaw v. Huish, L. R. 43 Ch. D. 260; Boughton v. Flint, 74 N. Y. 476. "ademption" already considered, but rather under circumstances where the child has a claim,-e. g., by marriage settlement, and the question is whether the parent has satisfied the claim. The court does not lean against the doctrine of satisfaction in this class of cases, as it does in ordinary debts, but rather favors it, owing to its hostility to double portions. A leading modern case is the case of Lady Thynne v. The Earl of Glengall,' already cited in another connection.2 In this case there was a marriage settlement by a father upon a daughter, in which he agreed to transfer to trustees certain stock in trust for his daughter for life, and after her death for the children of her marriage, as her husband and she should jointly appoint. In his will the father gave a moiety of the residue of his personal estate in trust for his daughter for life, remainder to her children (not confining himself to the children of the marriage, as the settlement did), as she should appoint (omitting the husband). Notwithstanding these differences, and the fact that the gift was a residue, the will was held a satisfaction of the portion under the settlement as far as it would go. Assuming that a residue was uncertain in amount, it should apply for what it was worth. The court wholly threw out of view the cases as to satisfaction of a debt, holding that they had no application. This case is understood to have settled the law on clear and satisfactory grounds. There should be mentioned here the subject of a legacy to a testator's debtor. A testator may, if he will, make a legacy to a debtor of the amount of his debt. This must, as a rule, be regarded as a true legacy, and not as a release of the debt. It would not be treated as a release by a court of equity, as there is no consideration. So the words, "I return A. his bond," were held simply to constitute a legacy. It would therefore lapse, like other legacies, in case the legatee should die before the testator. If, however, the testator use plain words of release, the intention may be regarded, and the debt deemed to be discharged. The fact that the testator is a parent of the legatee will be taken into There may be a release in the view of a court of equity, though not so regarded in a court of law.9 1 2 H. of L. Cas. 131 s. c. sub nom. Earl of Glengal v. Barnard, 1 Keen, 769. 2 See ante, p. 624. 8 Weall v. Rice, 2 Russ. & M. 251, 267; Richman v. Morgan, 1 Bro. C. C. 63. 4 Tufnell v. Constable, 8 Sim. 69. 6 Maitland v. Adair, 3 Ves. 231. Toplis v. Baker, 2 Cox, Eq. 118. 7 South v. Williams, 12 Sim. 566; Elliot v. Davenport, 1 P. Wms. 83; Sib thorp v. Moxom, 3 Atk. 580. In this last case the court laid stress on the word "forgive." See also Synge v. Synge, L. R. 9 Ch. App. 128. 8 Sibthorp v. Moxom, supra; Musket v. Cliffe, 2 De G. & Sm. 243. 9 Hedges v. Aldworth, 13 Ir. Eq. 406, disapproving a dictum to the contrary in Cross v. Sprigg, 6 Hare, 552. Sometimes the testator mentions the amount of the debt, which turns out to be erroneous; such a statement in general binds the legatee, though if the error leads to an absurdity, the court will ascertain the true amount of the debt, and, if necessary, direct an accounting.2 (4) Legacies charged upon land. This is a special topic, becoming important where the personal estate is not sufficient to pay the legacies, and there is real estate belonging to the testator. The inquiry then is, whether the land is not to be used to make up any deficiency. In general, it cannot be. The heir or devisee, as the case may be, is entitled to the land, and the legacies are only to be paid from the personal estate as far as it will go. There may, however, be evidence of intent, to be gathered either from the express words of the will, or by reasonable implication, that the land is to be resorted to. In this point of view the legacy is said to be charged upon the land. A few leading rules will now be stated. Rule 1. A legacy may be "charged" upon land by implication. There are two principal cases: one, where the question arises between the legatee and the owner of the land, considered by itself; the other, where following the legacy is a residuary gift of real estate and personal property blended together. This is technically called a "mixed residue." An example of a "mixed residue " is such words as "all the rest, residue, and remainder of my real and personal estate, I give,” etc. 4 In the first class of cases stated in this rule, the question is between the legatee and the owner of the land, considered by itself. The sole question is the intent. This will be inferred from such facts as these: he gives his wife land, and then directs her to pay enumerated legacies. No particular form of words is necessary. The case will be strengthened by special words, such as a devise of real estate "subject to a legacy," or a devise of a house to A., he "paying thereout" one hundred dollars to B. at a specified time.5 So a direction to trustees to pay certain legacies has been held to constitute a charge. It is a rule that a testator, by a direction to sell his land for this and other purposes, may cause the proceeds to be treated as personal estate (called the doctrine of "equitable conversion"), and thus provide a fund from which legacies are to be paid.7 1 Robinson v. Bransby, 6 Madd. 348. 2 In re Taylor's Estate, L. R. 22 Ch. D. 495, disapproving of In re Aird's Estate, L. R. 12 Id. 291. 3 Johnson v. Brady, 11 Ir. Eq. 386. 4 Freeman v. Simpson, 6 Sim. 75. 5 Seal v. Tichener, 2 Dick. 444. 6 Gallemore v. Gill, 2 Jur. N. s. 1178; 2 Sm. & G. 158; Preston v. Preston, 2 Jur. N. s. 1040; Rich v. Whitfield, 14 W. R. 907. 7 Field r. Peckett, 29 Beav. 568; Bright v. Larcher, 3 De G. & J. 148. |