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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
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 (). 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 800l. 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 sool.; it
Hanbury v. Hanbury, 2 Bro. C. C. 352 ;
(r) Chichester v. Coventry, L. R.
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.
(1) Tolson 9. *Collins, 4 Ves. 483. Stocken o. Stocken, 4 Sim. 152. See Plume v. 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, notwithstand. ing 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 (2), 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 (6). 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). (r) 3 P. Wms. 354.
sion, then you are driven to a presump47. To the same effect see Phillips r. tion of law, which only arises in the McCombs, 53 N. Y. 494 ; Reynolds r. absence of an expressed intention to Robinson, 82 N. Y. 103 ; and contru, give a double portion. That is entirely Cloud v. Clinkinbeard, 8 B. Mon. 397; independent of the construction of the Stone v. Pennock, 31 Mo. Ap. 544. Will. When you come to a presump
(y) 11 Ves. 547, 548. But this case tion to imply an inte tion in the Will, was disapproved by Lord St. Leonards then the rule always is that you may in Hall . IIill, 1 Dr. & Warr. 94, 112. admit parol evidence to rebut such preCompare Ferris v. Goodburn, 27 L. J. sumption. I know no distinction in Ch. 574, 576.
this respect between a deed and a Will. (2) See post, p. *1197 et seq.
The whole fallacy lies in supposing that (a) 2 Russ. & M. 267, 268.
it is for the purpose of determining the (6) 1 Keen, 769, 793, 794.
construction of the instrument. You (c) Re Tussaud's Estate, 9 C. D. 363. first construe the Will, and if in any “ You look at the Will for some expres- way a presumption arises, you admit sion of intention whether one or both evidence to rebut that presumption," are to be paid. If you find no expres- by Cotton, L. J., at p. 374.
SECTION IX. Of the release of debts by legacies : and herewith of the effect of
appointing a debtor or a creditor to be executor.
1. Of a legacy by a creditor to his debtor. Where a creditor bequeaths a legacy to his debtor, and either does not notice the debt, or mentions it in such a manner as to leave his intention doubtful, and after his death the securities for the debt, if any exist, are found uncanceled among the testator's property, the courts of equity do not consider the legacy to the debtor as necessarily, or even prima facie, a release or extinguishment of the debt, 48 but require evidence clearly expressive of the intention to release (d): And if such intention does not appear clearly expressed or implied on
48. A legacy to a debtor of the exact Bloom, 14 Stew. (N. J.) 276. So, a amount of his debt is not a release. legacy "inclusive of his note” means Cole v. Covington, 86 N. C. 295. So, deducting the note and paying the bala legacy to a debtor whose securities
Estate of Pepper, 1 Pa. Dist. R. are found among testator's papers un. 148. But, contra, legacies "exclusive canceled. Sorrelle o. Sorrelle, 5 Ala. of any indebtedness due to me.” Bald245. So, of & debt afterward con- win v. Sheldon, 48 Mich. 580. On the tracted, Brokaw v. Hudson, 12 C. E. other hand, a contrary intention will Gr. 135; (but not one already incurred not be inferred by an express condition as security, but not paid by testator until attached to another gift that that legatee after the date of his will, Hobart v. Stone, shall first pay his debt to testator. 10 Pick. 215). So, in a gift to or against Blacker o. Booth, 114 Mass. 24. Where an insolvent debtor, Snyder v.Warbasse, the legacy is the amount of his in3 Stock. 463. A devise to a debtor is not debtedness to me, which now amounts a charge of the debt ipso facto upon to $8500," it will include only the legathe land. La Foy v. La Foy, 16 Stew. tee's individual debt of $8565, and not (N. J.) 206. Where a legacy to a son another joint debt of A. and B. for who died after testator, goes to his $1000. Heaton 0, Merchant, 8 Stew. daughter, notes of the legatee (shown (N. J.) 561. And where the will directs to have been advances) are released and deduction of the legatee's debts, and prowill be deducted from the legacy, but vides that the testator's books of account other evidences of debt (not shown to shall be “ conclusive evidence of the be advances) remain available only fact and amount," interest is chargeable, against the estate of the original legatee. although not shown on the books. Wallace v. Dubois, 65 Md. 153. A Outealt e. Appleby, 9 Stew. (N. J.) 73. legacy to testator's daughter is no satis- (d) Wilmot v. Woodhouse, 4 Bro. C. faction of the debt of her husband (for C. 226. Jeffs v. Wood, 2 P. Wms. 132. a smaller amount). Clarke v. Bogar- See also Hyde v. Neate, 15 Sim. 554, dus, 2 Edw. 387; S. C. 12 Wend. 67. for an example of a will where the
Sometimes the debt is expressly language is sufficient to show that the saved. Thus, "obligations of any kind testator intended to remit the debts of to be first deducted” will include notes the legatees, as well as to give them
the face of the will, evidence from other sources will be admitted (e).49 Prima facie a bequest to a debtor of the debts due from him means *the debts due from him severally, and does not include debts due from a firm of which he is a member ($).
Where a testator recites that a legatee is indebted in a certain sum, that recital binds the legatee, except in case of a clear mistake of figures (9).
It must be observed, that if the testator expressly bequeaths the debt to his debtor, this being no more than a release by will, operates only as a legacy; and the debt is assets, therefore, subject to the payment of the testator's debts ().
Where a legatee is indebted to the testator, the executor may retain the legacy,50 either in part or full satisfaction of
Retainer and set. the debt, by way of set-off (i). And it has been held, off of a legacy, in
respect of a debt that in a suit by a legatee to obtain payment of the de legacy out of the assets of the testator, in a due course of claiming through
the legatee : administration, the executor may retain so much of the
(e) Eden v. Smyth, 5 Ves. 341. It is C. D. 495, not to have been followed, dangerous to extend the doctrine of this but it seems from the judgment of the case : Chester v. Urwick, 23 Beav. 404. C. A. that Re Taylor's Estate turned
49. Dougherty v. Rogers, 119 Ind. on a question of construction unaffected 254; Wallace v. Dubois, 65 Md. 153. by Re Aird's Estate. Such as the testimony of the scrivener. (h) Rider v. Wager, 2 P. Wms. 331, Zeigler 0. Eckert, 6 Pa. St. 13. When 332. Ante, pp. *1029, *1030. the testator takes a note from his son-in- 50. Such debt, if larger than the leg. law, and his will directs that it be acy, is a complete answer to a petition deducted as an advancement to his for the payment of the legacy. Matter of deceased daughter from the share to be Charlick, 11 Abb. N. C. 56 ; Smith v. taken by their daughter and should Murray, 1 Dem. 34 ; Strong v. Bass, go to her father if she died without 35 Pa. St. 333. And it may be set off, issue, it will amount to a bequest in sat- although it was contracted after the isfaction of the note, and equity will will was made, Brokaw v. Hudson, decree its cancellation. Bacon v. Gas- 12 C. E. Gr. 135; or was the debt of a sett, 13 Allen 334.
firm of which the legatee was the sole (f) Ex parte Kırk, Re Bennett, 5 C. surviving partner, Ferris v. Burrows, D. 800.
34 Hun 104 ; or grew out of payments (9) Robinson v. Bransby, 6 Madd. by the testator as security for the legatee, 348. See also Re Aird's Estate, 12 Koons v. Mellett, 121 Ind. 585 ; and by C. D. 291. This case is stated in the the executor on a judgment recovered head note to Re Taylor's Estate, 22 against him on a liability of the testator
(1) Jeffs ». Wood, 2 P. Wms. 130. retainer will be allowed to one executor, Smith v. Smith, 3 Giff. 263. So where out of a legacy to his co-executor, in the legatee is a bankrupt member of a respect of a devastarit by the latter : firm indebted to the testator : ibid. Soa Sims v. Doughty, 5 Ves. 243.
legacy as is sufficient to satisfy a debt due from the legatee to the testator, although the remedy for such debt was, at the time of the death of the testator, barred by the Statute of Limitations (k).
as such surety, Stieff 1. Collins, 65 Md. 69. If the legacy is an undivided share of the residue, the legatee's debt will of course be deducted entirely from that share. Chase v. Davis, 65 Me. 102 ; Estate of Piper, 11 Phila. 141. The legatee's notes are available as a set-off, although he was also appointed executor and had charged off the notes as worthless in his account. Henry o. Fiske, 11 R. I. 318. So, though the testator had executed, but never delivered, a release which was found with the evi. dences of the debt among his papers. Brunn v. Shuett, 59 Wis. 260. Equity will first set off the unsecured debt if the debt exceeds the legacy and is partly secured and partly unsecured. Sleeper v. Kelley, 65 N. H. 206. But where the will directs all indebtedness to be deducted, and refers to a partial list," it will not prevent a suit by the legatee to charge testator's estate for damages in wrongfully releasing collateral held by him. Whittemore 0. Hamilton, 51 Conn. 153.
In setting off the legatee's debt the interest on it is to be reckoned up to
the testator's death only, Dickerson v. Stokes, 4 Dem. 219; though the legacy may be a remainder payable only after the death of the life tenant. Smith o. Yancey, 81 Va. 88. But see Bowen o. Evans, 70 Ia. 368.
In some states the legatee's debt may be set off, although barred at testator's death by the Statute of Limitations, the statute in such case barring an action for the remainder, but raising no presumption of payment. Matter of Bogart, 28 Hun 466 ; Rogers 0. Murdock, 45 Hun 30. The barred debt is available as a set-off against a legacy, but not as against a devise of land. Estate of Covin, 20 S. C. 471. So, where the will directed the legatees“ to account for what they owe me.” Teague v. Teague, 74 N. C. 612. But in Massachusetts, a debt barred by the Statute of Limitations cannot be set off unless that is clearly intended in the will, Allen c. Edwards, 136 Mass. 138; the statute providing for set off of “ debts due." P.S. c. 136, § 22. So, in Tennessee, as against a distributive share. Richardson Keel, 9 Lea 74. So, in Maine also, and
(k) Courtenay v. Williams, 3 Hare, 589. Rosc 0. Gould, 15 Beav. 189. Coates v. Coates, 33 Beav. 249. Campbell v. Graham, 1 Russ. & M. 453. See the remark of Knight Bruce, V.-C., in Harvey v. Palmer, 4 De G. & Sm. 427. So an administrator is entitled to set off against the share of one of the next of kin the whole of a debt of which part has become barred by the Statute of Limitations. Re Cordwell's Estate, L. R. 20 Eq. 644. Legatees who were also next of kin of the testator, brought an action against the executor seeking
and were ordered to pay the executor's costs of the action. While the action was pending some of the plaintiffs assigned and others mortgaged their shares whether under the will or on an intestacy. Afterward the legatees co
commenced an action against the executor in the Chancery Division for the administration of the estate. It was held that the executor was entitled to set off the costs in the probate suit against the legacies, notwithstanding the assignments and encumbrances. Re Knapman, 18 C. D. 300.