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object of the testator can be collected from the tenor and scope of the will, or from peculiar circumstances. Thus, where a man having two daughters, A, and B., gave them, by will, 2,000l. jointly, and further sums of 250l. each; a question being raised whether the 1,2501. to B. should be taken in compensation of two small debts owing to her from her father, it was [*]resolved in the negative. No legacy, it was said, was given individually and exclusively to B; both daughters were provided for alike ; which showed that the testator intended to make no difference between them in regard to their shares as children(a). And in another case (6), where a testator made two brothers, M. and N., his executors, and gave a legacy of 100l. to B., the daughter of N. ; and afterwards, but before the payment of the legacy, M., by his will, gave to B. 2001., and died; on a bill for these legacies, it was held by Sir J. Jekyll, M. R., that as the former was the debt of both executors, the bequest by M. could not be intended to discharge it, there being no reason to believe that he designed to make satisfaction for what was also the debt of his co-executor (1).
(a) Meredith v. Wynn, Prec. Cha. 312, 314.
(b) Garrat v. Garrat, 2 Eq. Abr. 356, pl. 23.
(1) A bequest by a father to the children of his deceased son is not to be taken as a satisfaction of a debt due by the father to the son's estate. Ladson v. Ward, 1 Dessaus, 314. A legacy to the wife, is not presumed to be a satisfaction of a promise to the husband. Scott v. Osborne, 2 Munf. 413.
It is likewise observable, that what in ordinary cases would be presumed a satisfaction of a debt, is considered as a mere bounty when the debt arises upon a promissory note, or bill of exchange, drawn or accepted by the debtor. In this case, an intention to discharge the demand cannot, with any propriety, be ascribed to the debtor ; because, as it exists in the shape of negotiable paper, and, after a transfer, belongs neither legally nor equitably to the original creditor, the testator is altogether ignorant to whom the debt may be owing at the time of his death (a).
[*]The foundation of the general rule, it will be remembered, was stated to be the fact of an equality or superiority in value of the legacy to the debt. But a legacy of smaller value than the debt is not esteemed to be given even in satisfaction pro tanto. No purpose could be answered in directing payment of part at a time, when steps would be taken for the recovery .
of the whole. As the testator therefore must, in such case, be understood to confer a bounty, the claim to both debt and legacy may be enforced (6)(1).
The bequest of a residuary estate, and, consequently, of a specific or aliquot part of such estate,
(a) Carr v. Eastabrooke, 3 Ves. Graham v. Graham, 1 Ves. 262. jun. 561.
See also 2 Vern. 479, in Atkinson (6). Minuet v. Sarazine, Nels. v. Webb; 2 P. Wnis. 616, 617; 38 ; Mose. 295, S. C.; Stanway 1 Sałk. 508. v. Styles, 2 Eq. Abr. 355, pl. 21;
(1) Owings v. Owings, Har, & Gill. 491.
has never been accounted to satisfy a debt : the cause for which, as we had occasion to observe in the last chapter, is the uncertain value of the bequest, and the unlikelihood that the testator should thereby mean to discharge a fixed and certain obligation (a). For similar reasons, a distributive share under an intestacy will not operate to defeat a claim to a subsisting undischarged demand (6).
It has been also determined on an analogous principle, that a balance due to a legatee, on the settlement of a running account between himself and the testator, shall not be taken to be satisfied by a legacy. Until [*]the account be closed, it is uncertain in whose fayour the balance will incline ; so that to hold the debt extinguished would be in effect to conclude, that the testator meant to satisfy a demand, the existence of which he could not positively anticipate (c). The case has been compared to that of a debt contracted after the making of a will, in which, as before observed, no reasonable pretence can be urged in resistance of the claim to both debt and legacy.(d)
With regard to parol evidence in elucidation of the testator's intention, it seems now to be fully established, notwithstanding Lord Talbot's objection (e), that such evidence is alike admissible for the purpose of
(a) Barret v. Beckford, 1 Ves. (c) Rawlins v. Powell, 1 P. 519; Devese v. Pontet, 1 Cox. Wms. 297, 9; 10 Mod. 398, S. 188; Prec. Cha. 240, note by C. Finch.
(d) See on this point, 2 Salk. (b) Oliver v. Brighouse, 1 Ves. 508 ; 2 P. Wms. 343 ; 3 ib. 355. 1, cited; 3 Atk. 420, 422, S. C. (e) See Fowler v. Fowler, 3 cited.
P. Wms. 355.
repelling, or when contradicted, of corroborating the legal implication (a) (1).
The doctrine of constructive satisfaction, where the parties stand related to each other as parent and child, seems equally applicable in the instance of a portion being advanced to a child, as in that of a legacy. In one case, indeed, a contrary opinion obtained. A father received a legacy of 1501. given to his daughter by a relation, and afterwards advanced 1,0001. with her on marriage. Fourteen years afterwards, a decree was obtained against the father for payment of the 150l., the Master of the Rolls saying, that though he [*]disliked the suit, he could not discharge it (6). But on the same point coming before the Lord Keeper Wright, in the following year, the decision in the last case was overruled (c).
The principle afforded by this determination by the Lord Keeper has been ever since followed and recognized (d). And, to adopt the words of Lord Hardwicke, very few cases can possibly arise, in which a father will not be presumed to pay a debt he owes his
(a) Cuthbert v. Peacock, 2 228. Vern. 593 ; 1 Salk. 155, S. C.; (c) Macdowell v. Halfpenny, 2 Pole v. Lord Somers, 6 Ves. 324. Vern. 484. 6; Wallace v. Lord Pomfret, 11 (d) Wood v. Briant; 2 Atk. Ves. 542, 547, et seq. See ante, 521; Seed v. Bradford, 1 Ves.
501 ; Chave v. Farrant, 18 Ves. (6) Chidley v. Lee, Prec. Cha. jun. 8.
(1) Stallman on Election and Satisfaction, 313.