« НазадПродовжити »
be encountered by showing, that the party, after completing the purchase, executed a mortgage (a).
It remains only to observe, that parol evidence, whether to repel the prima facie supposition, or to fortify it in answer to contrary evidence, is equally admissible (b).
On the general principle established by the preceding cases, it seems probable, that where a trustee for the purchase of land buys an estate suited to the purposes of the trust; the purchase will be presumed to have been made with a view to perform the obligation: à fortiori, if the trust fund itself appear to have been applied in completing such purchase. But this presumption will not arise, where it is shown either that the party did not mean to execute the trust, or that he did not conceive himself to be under a trust to purchase at the time when the purchase was actually made (c). And therefore, in a case where testator devised his real and personal estate to M. in trust to accumulate the rents and proceeds, until a younger son of M. should attain 21, and then [*]to lay out the accumulations, as also the personal estate generally, in purchasing land, to be settled on such younger son, or if no younger son, then on the only son of M. who should attain 21; and M. (whose eld
(a) Deacon v. Smith, 3 Atk. 89. 323, 327.
(c) See per Lord Loughborough, (6) Sowden v. Sowden, 1 Bro. 4 Ves. 117. Sed vide on this C. C. 583; Deacon v. Smith, 3 point, 2 Fonb. on Eq., 5th edit. Atk. 323. See also 10 Ves. 10, 120. 520; and the cases cited ante p.
est son alone attained his majority) made occasional purchases of land during his life-time, but treated those purchases as his absolute property; it was held, from that circumstance, and from the fact that during his life-time the obligation to purchase never arose, (there not being a younger son who lived to attain 21), that no sufficient ground was afforded for presuming that the lands in question were purchased in order to execute the trust (a).
(a) Perry v. Phelips, 4 Ves. 108; 17 Ves. 173, on Review,
PRESUMPTIONS OF LAW CONTINUED.
of the presumed Satisfaction of Debts by Legacies
It is a general rule that a legacy to a creditor in amount equal to, or greater than, the debt, and equally beneficial in other respects, shall, if no contrary intention appear, be presumed to be given in satisfaction of the debt(a). In such cases the law says, Debitor non præsumitur donare; he must be accounted just, before he is supposed to be generous: and the parity between the duty and the bequest sufficiently
(a) Prec. Cha. 394 ; 1 P. Wms. the rule laid down in the text, is 410;
2 ib. 132; 3 Atk. 68; 2 Ves. distinguishable by the circum636. See also Bromley v. Jeffe- stance of the debt claimed in adries, Prec. Cha. 138; Gaynon v. dition to the legacy not being a Wood, 1 P. Wms. 409, n. by Cox; debt due personally from the tesDick. 331, S. C.; Margery Davis'tator, but from his estate. See case, Mo. 426, pl. 385 ; 8 Vin. also on this point of distinction, Abr. 358, pl. 4, S. C. ; 1 Ves. 126. Hanbury v. Hanbury, 2 Bro. C.C. The case of Duffield v. Smith, 352. Vern. 258, which seems to oppose
warrants this construction ; it shows that the testator was not unmindful of his creditor's demand (1).
[*]The same rule applies as well in the case of a wife or child (a) as in that of a stranger : so that a claim founded on the fact of a husband's having retained his wife's pin-money(6), or of a father's having received a legacy given to his child(c), will be discharged by the bequest of an equal sum.
It is also immaterial in what way the obligation
Whether it were a debt, properly speaking, contracted by the testator himself, or a duty imposed upon him as a trustee or the representative of another person, the gift will, in either case, extinguish the demand. And agreeably with this it has been held, that a bequest by an executor to a legatee of his testator's, will satisfy the original legacy (d). Nor is the rule confined to cases where the debt and legacy are of sums in gross; it equally obtains where the obligation and bequest are of annuities (e) (2).
(a) Prec. Cha. 236, in Claver- Goddard, 5 Vin. Abr. 292, pl. 37; ing v. Clavering ; per Lord Alvan- Gilb. Eq. Rep. 65, S. C. Sed ley, M. R. 4 Ves. 490-2.
vide Stevens v. Vaughan, Dick, (b) Fowler v. Fowler, 3 P. 572. Wms. 353.
(c) Brown v. Dawson, Prec. (c) Willoughby Rutland, Cha. 240 ; 2 Vern. 498, S. C.; Nels. 31; 8 Vin. Abr. 358. Davison v. Goddard, 5 Vin. Abr.
(d) Barkham v. Dorwine, 8 292, pl. 37; Graham v. Gjaham, Vin. Abr. 364, pl. 37; Davison v. 1 Ves. 262.
(1) Williams v. Crary, 5 Cowen, 368. The rule is held not to apply to an open unliquidated account, ib. 1 P. Will. 299.
(2) The appointment of a debtor to be executor is an extinction of the debt; but the amount is assets in his hands. Freakly v. Fox, 9
It was said by Lord Hardwicke, in Richardson v. Greese(a), that legacies to servants had never been held to go in satisfaction of debts. But this position seems to have been laid down without much consideration ; for long before, in Chancey's case (b), a contrary [*]decision had been made at the Rolls; and notwithstanding the decree in that case was afterwards reversed, yet as the reversal proceeded entirely on the peculiar circumstances, the general principle remained unimpeached. In later cases on this subject, the question has invariably turned on the testator's intention; and although, it must be conceded, that the result appears generally to have been favourable to both claims, yet it is at the same time to be remarked, that in all those cases, the point contended for, namely, that debts for wages stand on precisely the same footing in regard to satisfaction as other debts, was either expressly recognized or tacitly assumed (c) (-1).
The propriety of the doctrine under consideration has, in later years, been much questioned (2). It is true, that where a punctual correspondence between the debt and the legacy appears, a conjecture that
(a) 3 Atk. 69.
Ves. 636; also Wallace v. Pom(b) 1 P. Wms. 408.
fret, 11 Ves. 542 ; Hobbs v. Tate, (c) See an anonymous case cit- cited 11 Ves. 548. ed by Sir T. Clarke, M. R., in 2
B. & Cr. 130. Wood v. Tallman, 1 Coxe, 153. Winship v. Bass, 12 Mass. 199. Ritchie v. Williams, 11 Mass. 50.
(1) See Stallman on Elect. and Satisfac. 311-312-313, and cases there cited. (2) Ward on legacies, 249, and cases there cited. 11 Ves. 547.