was not meant to satisfy the covenant;-whether the party intended to exercise his benevolence or to apply himself in discharge of the obligation. Now, in order to ascertain this point, equity institutes a comparison between the thing contracted to be done and the thing performed. If the act performed be equivalent to, and of the same nature with, that covenanted to be performed, it is concluded that the object was to satisfy the covenant; if inferior in value, or different in kind, that a satisfaction was not intended.

In the first place, then, it may be laid down, that where a man covenants to make a certain provision at his decease, for a wife or child (a), and by deed or will gives or settles property, for the use of such object, equivalent to (b), or exceeding (c), the provision agreed to be made; of a similar nature (d), and equally advantageous, both in point of commencement and permanency (e); the gift or settlement will be accounted substitutionary, and preclude a claim to both benefits. From the general correspondence between the thing stipulated for, and that rendered, a presumption arises of the intention having been to satisfy the engagement. This presumption, we may add, is said to be stronger where the provision is made by deed,

(a) See Herne v. Herne, 2 Vern. 556; Bengough v. Walker, 15 Ves. 507.

(b) Wathen v. Smith, 4 Madd. 325; Brown v. Dawson, 2 Vern. 498; Prec. Cha. 240, S. C.

(c) Herne v. Herne, 2 Vern.

555, as stated in Mr. Raithby's note; Corus v. Farmer, 2 Eq. Abr. 34, pl. 1.

(d) Brown v. Dawson, 2 Vern. 498; Prec. Cha. 240, S. C.

(e) Wathen v. Smith, 4 Madd.

325.

than where by will; for, prima facie, a gift by will imports a bounty (a).

But the doctrine of implied satisfaction being founded on the correspondence in kind, and equality or superiority in amount of the provision made to that contracted for; if the latter, in point of fact, be not equally beneficial in all respects, however superior in some, or be not of the same nature, the rule will be held inapplicable: the benefit conferred will be accounted merely a bounty, and the claimant adjudged to be entitled to both provisions. The points of circumstantial difference prove the covenantor's disregard to the engagement he had entered into, and consequently the absence of intention on his part to fulfil it (b).

Hence any of the following particulars may be successfully urged for the purpose of showing that a satisfaction was not intended:

First; that the benefit bestowed falls short in value of that engaged to be furnished. For it is to be observed, that the supposition of a partial satisfaction will not be entertained. No man, who has the power to answer a claim of the kind in question, can be imagined to intend discharging it to a certain extent only. The greater probability is, that in making the particular provision, the fulfilment of the contract was not contemplated (c).

(a) Weyland v. Weyland, 2 Atk. 632, 634.

(b) See 1 Cox, 191-2

(c) See Graham v. Graham, 1 Ves. 262.

Secondly; that the property given is not of the same kind as that agreed to be given. Thus land will not be accounted to go in satisfaction of money (a); nor an annuity in discharge of a sum in gross (b). For similar reasons, a covenant to pay a sum of money to be settled on the covenantee for life, remainder over, will not be satisfied by the legacy of a sum in gross, equal to that mentioned in the covenant. Nor will it alter the decision in such case, that, in consequence of the limitations over subsequent to the covenantee's life interest failing, the latter, under an ulterior disposition, becomes entitled absolutely to the sum originally agreed to be settled (c).

Thirdly; that the provisions contracted for and actually made, differ in point of certainty, or in quantity of interest. A bequest of property dependent or defeasible on a contingency (d), or a bequest for life only (e), will not therefore be taken as substituted for an interest of an absolute nature. And, on a like principle, it has been determined, that the bequest of a residue will not satisfy a claim under a prior covenant. A residue, it is true, may perhaps, in every respect, be as beneficial as the provision agreed for,

and even surpass it in amount: but that is uncertain. During a man's life time the value of his personal estate constantly fluctuates; and at his death may be so reduced as to make the residue below the sum necessary to constitute a satisfaction. Hence the improbability that by a gift of so precarious amount, the discharge of a fixed and definite duty could be intended (a). The bequest of a particular residue, as also a bequest of certain general divisions of the residuary estate, admit of the same construction (b).

Fourthly; that the provision alleged to be in substitution does not commence in benefit so early as that which the covenant stipulated for. This also makes a bequest accumulative, from the argument it affords of the party's inadvertence at the time to his former engagement (c).

Fifthly; that the gift resulted from another motive than design to fulfil the covenant (d); or that it was intended as an additional provision. An express confirmation of the agreement in a will, immediately followed by a bequest to the person entitled under

(a) See 1 Ves. 521 ; 1 Cox, 192. (b) Devese v. Pontet, 1 Cox, 188; Prec. Cha. 240, note by Mr. Finch, S. C. But it is proper to observe that this rule does not hold with regard to portions: the satisfaction of which will, it seems, be effected by a residuary bequest. See infra Chap. VII.

(c) Haynes v. Mico, 1 Bro. C. C. 129; Adams v. Lavender, 1 M'Clel. and You. 41. See also Richardson v. Elphinstone, 2 Ves. jun. 463.

(d) See Mathews v. Mathews, 2 Ves. 635; Hooke v. Grave, 5 Vin. Abr. 293; 2 Eq. Abr. 219.

the agreement, has been held to come within the latter branch of this position (a).

Parol evidence, it seems, is also admissible to repel a presumed satisfaction. So, on the other hand, to fortify such presumption in answer to counter testimony, if in the first place justly afforded by the circumstances (b). But parol evidence is not, as it is conceived, admissible originally and in the first instance to corroborate the presumption, and to show a spe-cific intention in the covenantor to substitute one provision for another; but only to meet other evidence which has previously been adduced in order to rebut the presumption (c). Much less can it be received to show that satisfaction was intended, when the facts of the case do not themselves lead to that supposition (d). For it is obvious in both of these cases, that to admit the parol evidence would be inconsistent with the principle, which forbids its reception when brought for the purpose of adding to, or varying, or explaining a written instrument (e). This rule, however, does not exclude any parol evidence, the object of which is merely to prove the facts necessary to raise a case of presumption (f).