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where legacy and

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 (z). A further exception may be found in cases where the legacy and debt are of a different nature (a); as where the testator is indebted by bond, and bequeaths an interest in land debt are of differto his creditor (b). So in Bartlett v. Gillard (c), a leasehold estate of the testator's was subject to an annunity of 127. 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 127. 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 (d), a testator, under his wife's appointment, was entitled to her residuary estate, charged with her pecuniary legacies, including one of 100%, to Anna Jewitt, and another of 100l. 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
2. 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 held 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.

(b) Eastwood v 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."

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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 1007. to Mary Ann Myers, not limited to her separate use Sir J. Leach, M. R., held that the sum of 1007. given to Anna Jewitt by the appointment of the wife, was satisfied by the 5007. bequeathed by the testator; and that the sum of 100%. bequeathed to Mary Ann Myers was in addition to, and not a satisfaction of, the 100%. 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 beally a satisfaction queaths it with such condition expressed, and the legatee

chattel not gener

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 expressed 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 (g).

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 (h): Nor is a legacy given by a husband to his wife considered upon any different footing (i).

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

(f) Mathews v. Mathews, 2 Ves. Sen. 635. Post, p. *1167, note (q).

(g) Chancey's Case, 1 P. Wms. 410, 411. Richardson v. Greese, 3 Atk. 68. Field . Mostin, 2 Dick. 543. Hales v. Darell, 3 Beav. 324. Lethbridge v. Thurlow, 15 Beav. 334. Jeffries v. Mitchell, 20 Beav. 15. Wathen v. Smith, 4 Madd. 331. Charlton v. West, 30 Beav. 124. Edmunds v. Low, 3 Kay & J. 318, in which last case Wood, V.-C., held that a direction to pay debts (without more) is insufficient to rebut the presumption. See, however, contra, Cole v. Willard, 25 Beav. 568. Glover v. Hartcup, 34 Beav. 74, and compare Atkinson v. Littlewood, L. R. 18 Eq. 595. In the late case of Re Huish, 43

C. D. 260, the decision in Edmunds v. Low, ubi sup., was disapproved by Kay, J., who held that a direction by a testator that his "debts" are to be paid is sufficient, without the further direction to pay "legacies," to exclude the presumption that a legacy to a creditor equal to, or exceeding the debt, is a satisfaction of the debt. A liability on a covenant made on marriage is a debt within the meaning of a direction "to pay debts:" Cole v. Willard, 25 Beav. 572, 573, dissenting from Sir J. Leach's opinion in Wathen v. Smith, ubi supra. (h) Tolson v. Collins, 4 Ves. 483, post, p. *1168.

(i) Fowler v. Fowler, 3 P. Wms. 353. Re Fletcher, 38 C. D. 373.

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

by legacies.

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 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 (7). 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 may 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 there are but slight differences (2), the two instruments *afford intrinsic evidence against a double provision:

(k) Toller, 337.

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

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

(n) Jesson v. Jesson, 2 Vern. 255. Byde v. Byde, 1 Cox, 44. Warren v. Warren, 1 Bro. C. C. 305. Finch v. Finch, 1 Ves. 534. Thynne v. Glengall, 2 H. L. C. 153, 154. See Fazakerley v. Gillibrand, 6 Sim. 591.

(0) Ante, p. *1163.

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

re

satisfaction
pelled or fortified
by intrinsic evi-
dence.

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

(q) Per Turner, L. J., in Coventry v. Chichester, 2 Hemm. & M. 149. Chichester v. 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. [*1167] [*1168]

Where the two provisions are of a different nature, the two instruments afford intrinsic evidence in favor of a double provision (r).

It must be further observed, that a legacy by a father to a child is not a satisfaction of a debt due to the child, or of moneys owing to the child in the nature of a debt, in any other way than a debt due from a stranger would be satisfied by such legacy and therefore circumstances of difference, such as there has already been occasion to point out (s), will be laid hold of by the court to prevent the application of *the rule of satisfaction (t). And in Hall v. Hill (u), where a father upon the marriage of his daughter, executed to the intended husband his bond (with a warrant of attorney for confessing judgment thereon), conditioned for the money of 8007. by installments, part thereof to be paid during his life, and the residue upon his decease, and the intended husband gave a bond in the same amount to the trustees of the marriage settlement, which was settled upon the intended wife and issue ; and then the father bequeathed to his daughter a legacy of 800l.; it

Hanbury v. Hanbury, 2 Bro. C. C. 352;
So where the legacy is given diverso
intuitu: See Foster v. Evans, 6 Sim. 15.
Glover v. Hartcup, 34 Beav. 74.

(r) Chichester v. Coventry, L. R. 2 H. L. 71. Weall v. Rice, 2 Russ. & M. 267. Paget v. Grenfell, L. R. 6 Eq. 7. Re Tussaud's Estate, 9 C. D. 363. The question whether a gift in a will is a satisfaction of a portion given in a settlement, or a portion in a settlement is an ademption of a gift in a will, is one of intention. The rule that there is a presumption against double portions is founded on the assumption that the maker of the second instrument supposed himself to be substantially satisfying the obligations of the first. This rule is much easier of application where the will precedes the settlement than where the settlement precedes the will. In the latter case, the intention to satisfy a covenant must be distinctly expressed or clearly indicated. Great differences in the sums given, and in the limitations of the trusts on which they are given, will be taken as indications that the gift in the will was not

.

meant in satisfaction of the covenant. Where, too, the gift by the will is not to the child, but to trustees to pay debts and legacies, and then to pay the residue to the child, the form of the gift will be taken as an indication that the debt due under the settlement must be satisfied before the residue is declared: Chichester v. Coventry, L. R. 2 H. L. 71. There is a marked distinction between "ademption" and "satisfaction." In the former, the benefit is given by a revocable instrument, and in any future gift the giver may declare his pleasure as to the second gift being taken in substitution for the first. In the case of the gift by settlement, followed by a will, the persons to be benefited have the right to elect which of the gifts they will take, a right which does not arise in the other case; ib. per Lord Romilly.

(8) Ante, p. 1163 et seq.

(t) Tolson v. Collins, 4 Ves. 483. Stocken v. Stocken, 4 Sim. 152. See Plume . Plume, 7 Ves. 258. (u) 1 Dr. & Warr. 94.

was held by Sugden, C., of Ireland, that this legacy could not be considered as a satisfaction of the debt due to the husband, notwithstanding such debt was, in substance, a portion.

With respect to rebutting the presumption of satisfaction of a debt by parol evidence, it was holden by Lord Talbot, in Fowler Admissibility of v. Fowler (x), that such evidence was not admissible: 47 parol evidence. But Lord Eldon, in Wallace v. Pomfret (y), upon the authority of the cases as to satisfaction of portions (2), held, that parol declarations by the testator are admissible in evidence, to repel the presumption of a satisfaction of a debt by a bequest of a greater amount, even where such declarations were not contemporaneous with, but subsequent to the making of the will; and although the expressions in the will may afford an inference in favor of the presumption. And it was laid down by Sir J. Leach, in Weall v. Rice (a), that whether the two instruments afford intrinsic evidence in favor of or against a double provision, extrinsic evidence is admissible of the real intention of the testator. And this proposition seems to have been approved of by Lord Langdale in Lord Glengall v. Barnard (b). And it is now settled *that where a presumption has arisen to imply an intention in the will the rule is that parol evidence is admissible to rebut such presumption, and there is no difference in this respect between a deed and a will (c).

(x) 3 P. Wms. 354.

47. To the same effect see Phillips . McCombs, 53 N. Y. 494; Reynolds v. Robinson, 82 N. Y. 103; and contra, Cloud v. Clinkinbeard, 8 B. Mon. 397; Stone v. Pennock, 31 Mo. Ap. 544.

(y) 11 Ves. 547, 548. But this case was disapproved by Lord St. Leonards in Hall v. Hill, 1 Dr. & Warr. 94, 112. Compare Ferris v. Goodburn, 27 L. J. Ch. 574, 576.

(2) See post, p. *1197 et seq. (a) 2 Russ. & M. 267, 268. (b) 1 Keen, 769, 793, 794.

(c) Re Tussaud's Estate, 9 C. D. 363. "You look at the Will for some expression of intention whether one or both are to be paid. If you find no expres

sion, then you are driven to a presumption of law, which only arises in the absence of an expressed intention to give a double portion. That is entirely independent of the construction of the Will. When you come to a presumption to imply an intention in the Will, then the rule always is that you may admit parol evidence to rebut such presumption. I know no distinction in this respect between a deed and a Will. The whole fallacy lies in supposing that it is for the purpose of determining the construction of the instrument. You first construe the Will, and if in any way a presumption arises, you admit evidence to rebut that presumption," by Cotton, L. J., at p. 374.

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