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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 (a).

.

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 (6).

[*]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 mo

(a) See 1 Cox, 191-2.
(b) See Graham v. Graham, 1 Ves. 262.

ney (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 lega cy 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 set

tled (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

(a) Richardson v. Elphinstone, M'Clel. and You. 41, 51-3-4-6. 2 Ves. jun. 463. See also Mason (d) See Crompton v. Sale, 2 v. Cheyney, Finch, 42; Hooke v. P. Wms. 553; also 1 Atk. 427-8. Grove, 2 Eq. Abr. 219; 2 P. (e) Perry v. Perry, 2 Vern. Wms. 616.

505; Forsight v. Grant, i Ves. (6) See Alleyn v. Alleyn, 2 jun. 298. See also Alleyn v. AlVes. 37.

leyn, and Mathews v. Mathews, (c) Devese v. Pontet, 1 Cox, 2 Ves, 37, and 635. 188, 191; Adams v. Lavender, 1

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 construc

tion (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).

An express

Fifthly; that the gift resulted from another motive than design to fulfil the covenant (d); or that it was intended as an additional provision. confirmation of the agreement in a will, immediately followed by a bequest to the person entitled under [*]the agreement, has been held to come within the latter branch of this position (e).

Parol evidence, it seems, is also admissible to repel a presumed satisfaction. So, on the other hand,

(a) See 1 Ves. 521; 1 Cox, (c) Haynes v. Mico, 1 Bro. 192.

C. C. 129; Adams v. Lavender, 1 (6) Devese v. Pontet, 1 Cox, M'Clel. and. You. 41. See also 188; Prec. Cha. 240, note by Mr. Richardson v. Elphinstone, 2 Ves. Finch, S, C. But it is proper to jun. 463. observe that this rule does not (d) See Mathews v. Mathews, hold with regard to portions : the 2 Ves. 635 ; Hooke v. Grave, 5 satisfaction of which will, it seems, Vin. Abr. 293; 2 Eq. Abr. 219. be effected by a residuary bequest. (c) Prime v. Stebbing, 2 Ves. See infra Chap. VII.

409.

to fortify such presumption in answer to counter testimony, if in the first place justly afforded by the circumstances(a). But parol evidence is not, as it is conceived, admissible originally and in the first instance to corroborate the presumption, and to show a specific 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(b).

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(c). 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 awritten instrument.(d). 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 (e).

[*]It may be remarked in conclusion, that as covenants in favour of a wife or children, are of the nature of debts, the rules established with respect to the satisfaction of debts to strangers are also applicable

(a) See Peacock v. Glascock, this case the parol evidence went 1 Cha. Rep. 45 ; 6 Ves. 321, 397; to show, that a portion provided 10 Ves. 10; 17 Ves. 184. by deed to be raised for a child

(6) See Hartopp v. Hartopp, 17 moved from the father, who had Ves. 184.

bequeathed to the same child a (c) See 1 Bro. C. C. 296. legacy of like amount.—On the

(d) Hurst v. Beach, 5 Madd. subject of parol evidence generally, 351.

see the cases cited in relation (e) See 6 Ves. 321 ; also Har- thereto in the last and five followtopp v. Hartopp, 17 Ves. 184. In ing chapters.

to, and are relied on as decisive in analogous cases of the kind under present discussion(a).

The distinction between performance and satisfaction is not so strictly observed in regard to covenants for the settlement of real estate, as to covenants for the settlement of personal. For in cases of the former description (which we now proceed to consider), the fulfilling of the covenant is, in some instances, held to be effected by an act partaking both of the nature of performance and satisfaction ; of performance, inasmuch as the act agreed to be done, though not completed, is executed in part; and of satisfaction, because the party claiming receives substantially the benefit contracted for. Other cases, indeed, there are, which properly and strictly may be denominated cases of satisfaction; where though no decisive step towards performance has been taken, a provision in value equal, and in quality the same, is furnished.

Cases of the mixed nature of performance and satisfaction [*]are, where a covenant is entered into for the settlement of land by a person who does not possess land at the time ; or for the purchase and settle

See post

(a) See in Devese v. Pontet, not common to both. In the lat1 Cox, 191 ; also Tolson v. Col- ter case the presumption in favour lins, 4 Ves. 483. The presumed of satisfaction is not rebutted by satisfaction of debts is considered slight circumstances. in the next Chapter.

Chap. VII. In the former any Care must be taken to distin- circumstance will be laid hold of guish between cases on the satis- to evade it. See the next Chapfaction of debts to children and of ter. portions; for the same rules are

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