the testator might intend to discharge his obligation, is not altogether contrary to probability. But as a debtor may in reality be bountiful as well as just, and a legacy imports a gift (the forms of bequest being always donatory), it appears to involve a contradiction of the testator's words to declare, that the legacy shall go in payment of the debt. And it is only reasonable to conclude, that if a payment had been intended, some express intimation to that effect would have been given. By the construction in question, the legacy is in fact rendered nugatory; it merely effects what the [*]law, by its proper authority, would have compelled. And no argument to the contrary can be justly drawn from cases on the satisfaction of covenants to settle a particular fund on a wife or child; those cases and the present admitting not fairly of comparison. There, perhaps, the stipulation may well enough be esteemed to be fulfilled by a tantamount legacy, for the object contemplated, the wife's or child's provision, is attained; the benefit too is furnished at the exact time agreed upon; and when the usual large amount of such provisions, and the injury which a different construction would frequently occasion to the other branches of a family, is adverted to, the reasonableness of the presumption in such cases is still further manifest. But, on the other hand, a debt, generally speaking, is not only demandable in the party's lifetime, so that the bequest becomes at most an eventual satisfaction merely; but it is seldom so large when equalled by a legacy, that the assertion to both claims would prejudice the expectations of others. The probability at least is, if the debt be large, that some direct or indirect mention of the legacy being intended in satisfaction would appear. Where the debt and the legacy are not of like amount, but the legacy is great

er than the debt, the argument founded on the resem. blance between the duty and the bequest is still less conclusive. Here, to a certain extent, a bounty clearly is intended; and why the same bequest should bear a double construction, different as to different parts of the sum given, is not easy to explain (a).

[*]The occasion on which the soundness of the maxim, Debitor non præsumitur donare was first doubted, arose from its being applied by Sir John Trevor, M. R., to the case of a legacy given by a will executed previously to the time when the debt was contracted (b);—a decision, which went to establish the strange position, tha t a testator, in bequeathing legacies, intends to cover all future possible demands on his estate by the respective legatees. This extreme application of the principle was considered proof of its unreasonableness. The decree at the Rolls was reversed on appeal to Lord Chancellor Harcourt; and since that time, the courts, though feeling themselves bound to acknowledge the general authority of the rule, have universally endeavoured, when practicable, to except particular cases from its operation. A difference therefore in kind, or in value, or any circumstance, in fact, which makes the legacy less positively or immediately beneficial than the demand, is laid hold of and relied on as sufficient for that purpose (c).

First; a variation between the nature or quality of

(a) See 2 Salk. 508; 1 P. Wms. 410; 1 Bro. C. C. 131.

(b) Cranmer's case, 2 Salk. 508.

(c) 3 Ves. jun. 466, 529; 4 ib.

483.

the gift, and that of the debt, as we have just observed, is available to repel the presumptive satisfaction. Accordingly, it has been resolved, that a bequest of specific personal chattels, as of household furniture (a), will not be taken as meant in substitution for a sum of money. Much less will a devise of land be [*]so considered(b). In regard to which latter particular, it has been held, that the devise of a mortgaged estate, whereof a decree of foreclosure nisi has been obtained, comes sufficiently within the description of a gift of land, to allow of the devisee's urging a separate claim, as creditor, against the testator's personal representative(c).

The circumstance of the bequest not being co-extensive in point of interest with the debt, was next mentioned as effectual to prevent the application of the rule. Hence an annuity (d), or any life interest (e), constitutes no proper equivalent or a sum in gross. Indeed the uncertain amount of the gift excludes all idea of compensation being intended.

For a similar reason, the bequest of a contingent or determinable interest, will not be construed to satisfy a demand, to which the party is entitled absolutely (f). On this principle it has been held, that a le

(a) Stanway v. Styles, 2 Eq. Abr. 855, pl. 21.

(b) Goodfellow v. Burchett, 2 Vern. 298; Eastwood v. Vincke, 2 P. Wms. 613-4; Richardson v. Elphinstone, 2 Ves. jun. 463; also 2 Salk. 508.

(c) Garret v. Evers, Mose. 364.

(d) Stanway v. Styles, 2 Eq. Abr. 355, pl. 21.

(e) Alleyn v. Alleyn, 2 Ves. 37; Forsight v. Grant, 1 Ves. jun.

298.

(f) Talbot v. Duke of Shrewsbury, Prec. Cha. 394; Crompton v. Sale, 2 P. Wms. 553; 1 Eq.

gacy to be raised out of land, and paid at the end of twelve months from the testator's death, will not af fect the validity of a bond debt due from the testator to the legatee (a).

[*]Delay in the time appointed for payment of the legacy is another ground laid hold of to avoid the force of the general rule. The avowed reason for which is, the prejudice that the claimant might otherwise eventually sustain ;-a minute circumstance, but nevertheless considered enough to show the testator's intention, that the gift should not extinguish the obligation (b) (1). The delay even of a month has even been deemed sufficient for this purpose; so that although the executor have but just opportunity to raise the necessary sum, that consideration will have no weight (c). A fortiori, a sum secured by bond (d), and in like manner a legacy directed by a will, of which the present testator was executor (e), to be paid at a certain age, will not be held satisfied by a legacy payable at a later age. Nor will the bequest of an annuity, directed to be paid half-yearly, satisfy a similar annuity contracted to be paid quarterly (ƒ)•

Abr. 205, S. C.; See also per Lord Harcourt in Cranmer's case, 2 Salk. 508.

(a) Nicholls v. Judson, 2 Atk. 300; Tolson v. Collins, 4 Ves. 483.

(b) Nicholls v. Judson, 2. Atk. 300; Haynes v. Mico, 1 Bro. C. C. 129.

(c) Clark v. Sewell, 3 Atk. 96; Anonymous case cited by Sir T. Clarke, 2 Ves. 636.

(d) Jeacock v.Falkenor, 1 Bro. C. C. 295; 1 Cox, 37, S. C.

(e) Mathews v. Mathews, 2 Ves. 635; Lee v. Brown, 4 Ves. 362.

(f) Atkinson v. Webb, Prec.

(1) Owings v. Owings, 1 Har. & Gill. 491.

A clause directing payment of the testator's debts is a further circumstance relied on to repel the legal implication; such direction being as strongly indicative of intention that both debt and legacy should be taken, as if the discharge of each were expressly ordered (a). [*]But where the debt has been contracted between the making of the will containing such direction, and the execution of a codicil by which an adequate legacy is given to the creditor, the debt, in that case, will be satisfied by the legacy (b).

Where the particular motive to a bequest appears, the payment of the previous debt may be enforced, as the idea of an intended satisfaction is then necessarily excluded (1). Thus, where a father, for valuable consideration, agreed to settle on his son, for life, an annuity of 50%., and afterwards, by will, give him a sum of 700l. a year, on condition that, within a specified time, he conveyed the family estate to certain uses ; it was held by Sir T. Clark, M. R., that the testamentary gift proceeding entirely. diverso intuitu, could not be a satisfaction of the annuity payable under the agreement (c).

But not only is the prima facie intendment considered to fail where the motive to the bequest distinctly appears; the same result ensues where the

Cha. 236; 2 Vern. 478, S. C.

(a) Chancey's case, 1 P. Wms. 408; Richardson v. Greese, 3 Atk. 65; Field v. Mostin, Dick. 543; Pilson v. Price, ib. cited, 573.

(b) Gaynon v. Wood, Dick.

331; 1 P. Wms. 409, note by Mr. Cox.

(c) Mathews v. Mathews, 2 Ves. 635. See also Hanbury v. Hanbury, 2 Bro. C. C. 352, 529.

(1) Guignard v. Mayrant, 4 Dessaus. 614.