SECT. I. Where the legacy operates as a satisfaction of the debt due by the testator to the creditor-legatee. 1. When the legacy is given simpliciter, and is of the same nature as the debt, and of equal or greater amount. 2.-Where it operates as a performance of a cove nant. SECT. II. Where the legacy has not been deemed a satisfaction of the debt. 1.-Where the legacy is of less amount. 3.- Where of a different nature, either— B.-As to the interest given. 4.- Where, though of the same nature, a particular motive is assigned for the gift. 5.—Where the debt is contracted subsequently to the 6.—Where the legacy is contingent or uncertain. SECT. III. Inquiry how far the doctrine of satisfaction is affected by the relation subsisting between the testator and the creditor- 1.-Where the legatee is a servant, and herein, of SECT. IV. Where a legacy by a creditor to his debtorlegatee does or does not operate as a release or extinguishment of the legatee's debt,and herein of the effect of appointing a debtor executor. Where legacy by debtor to his creditor is a satisfaction of his debt. When legacy given simpli citer, of same nature, and SECT. I. Where the legacy operates as a satisfaction of the debt due by the testator to the creditor legatee. 1. When a testator being indebted bequeaths to his creditor a legacy, simpliciter, and of the same nature as the debt, and not equal or greater coming within the other exceptions stated in the second section in amount than of this chapter, it has been held a satisfaction of the debt, when the legacy is equal to or exceeds the amount of the debt. debt. Thus in Brown v. Dawson (a), Henry Dawson prevailed on his wife to join with him in selling 77. 10s. per annum of her jointure, and afterwards 67. 10s. per annum more. Henry Dawson, having given two notes, that his executors should pay her those two sums during life, made his will, and gave her 147. per annum for life, and the Court held that the bequest was a satisfaction of the notes. So in Fowler v. Fowler (b), where the legacy exceeded the debt: the deceased husband of the defendant, by settlement before the marriage, settled 1007. per annum in trust for her separate use, for pin money. Two years arrears having become due, the husband made his will, and, after expressing great affection for his wife, gave her a legacy of 500l. After the making of the will, another year's arrear was incurred, and then the husband died. The question was, whether the 5007. legacy, being more than what was due for pin money, should be deemed a satisfaction for the arrears? First, it was admitted by Lord Talbot, C., to have been the general practice, that where there was a debt due from the testator to a third person, and the legacy given to such person was as much or more than the debt, such legacy should be a satisfaction of the debt. That this being established as a rule, it would be of very ill consequence to unsettle or alter it, because no counsel would know how to advise his client; though, had it been res integra, his Lordship said he would hardly come into it. That it had been urged with great reason, in opposition to the maxim, "that a man ought to be just before he was bountiful," that where there were assets, the testator might, with as much reason, be construed both just and Parol evidence. bountiful. Secondly, that although in some cases, parol evidence had been allowed, to show that the testator intended to give such legacy exclusive of the debt, yet his Lordship's opinion was, not to admit such evidence, for then the witnesses and not the creditor is a the debt. testator, would be makers of the will (c). Thirdly, that such being Where legacy the general rule, and no precedent adduced to show that the case by debtor to his of a wife was an exception to it, his Lordship thought that the satisfaction of legacy given to her, being larger than the debt, ought to be considered a satisfaction of it: But fourthly, that the legacy could When legacy not be pretended to be a satisfaction of a debt incurred after the citer, of same date of the will, and which at that time might possibly never become due. So also in Gaynon v. Wood (d), the testator, by his will, gave to the plaintiff, Ann Foley, the wife of the plaintiff Gaynon, 500%. then 500% to charity, and appointed Griffiths and Wood executors. After making his will, the testator contracted debts with the plaintiff Ann, and gave her his bond for securing 2007. By a codicil he revoked the charity legacy of 500l. and gave the said legacy to the plaintiff Ann, over and above the 5001. given to her by the will, and also gave to her all his ready money and bank bills, and did not dispose of the residue. The defendant Griffiths renounced; Wood alone proved the will, and possessed the personal estate, and paid the bond debt to the plaintiff Ann. The bill was filed by the plaintiff for payment of the two legacies. The defendants insisted, that the legacy given by the codicil was a satisfaction of the debt of 2007. due by bond to the plaintiff Ann. The question was, whether the rule of satisfaction took place, or whether there was any consideration to take it out of the general rule? Sir Thomas Clarke, Master of the Rolls said, that the general rule, though admitted to have long prevailed, had not escaped censure. When all creditors and legatees were by the will directed to be paid, if the personal estate were not sufficient, they were to be paid pari passu till the time of Lord Nottingham, C., when he declared, that a testator must be supposed just before he was bountiful, and therefore directed the creditors to be paid, and if the personal estate were not sufficient, the legatees were to abate. The bequest of the 5002 by the codicil must be taken as an original bequest, that there was nothing in that case that took it out of the general rule, and as to the defendant's having paid the debt, it made no difference. That the defendant must have an allowance out of the plaintiff's legacy of what he paid for the debt: and the decree was, that (c) Sed vide Pole v. Lord Somers, and the observations there upon the admission of evidence, 6 Ves. 321. (d) 1 Dick. 331; also 1 Ves. sen. 123, 125, Belt's edition; 2 P. Wms. given simpli equal or greater nature, and in amount than debt. Where legacy the legacy of 500% given to the plaintiff Ann by the codicil, was by debtor to his to be considered and deemed a satisfaction of the bond for 2007. creditor is a satisfaction of given by the testator to the plaintiff (e). the debt. When legacy a performance of a covenant. Where legacy 2. Where the legacy operates as a performance of a covenant. This is illustrated in the case of Wathen v. Smith (ƒ), which in some respects is a new case. new case. There J. Wathen, in his marriage settlement, covenanted that his heirs, &c., should pay to his intended wife, Elizabeth 1,000l. within six calendar months after his decease, for her own use and benefit. The marriage took effect, and J. Wathen, by his will, gave his wife Elizabeth 1,000l. to be paid to her within three calendar months after his decease, for her own.use and benefit; the testator also bequeathed to his wife several specific legacies, and also the interest of the residue of his estate to her for life, &c. He also directed all his just debts, &c. to be paid: and Sir Thomas Plumer, M. R., decided that the legacy was a satisfaction of the covenant; observing, that the case was one of intention, but the intention to perform the covenant was to be presumed, unless there were special circumstances to repel that presumption. His Honor thought that Chancey's case (g) did not apply there; and that the provision for the wife by the settlement was not a debt within the sense in which the testator must be understood to use the word "debts" in his will. His Honor also distinguished the present from the case of Haynes v. Mico (h). SECT. II. Where the legacy has not been deemed a satisfaction of the debt. From the rule itself, as illustrated by the cases detailed and by a debtor to referred to in the first section, we next proceed to consider its his creditor not a satisfaction of exceptions, from the number of which we may easily account for the small proportion of those establishing the rule. the debt. Where of less amount than the debt. 1. And first it may be deemed settled, that where the legacy is of less amount than the debt, it shall not be deemed a part payment or satisfaction. (e) See Graham v. Graham, next page. (ƒ) 4 Mad. 325. (g) 1 P. Wms. 408, infra, and see Mr. Cor's note. (h) 1 Bro. C. C. 129, infra, p. 1036, see also Jones v. Morgan, 2 Yo. & Coll. (E.), 403, in which a covenant in a settlement on the first marriage for payment of portions was held satisfied by a provision for their payment, made by the settlement on a second marriage. Where legacy by a debtor to his creditor not a satisfaction of the debt. Thus in Gofton v. Mills (i), the testator bequeathed to B. 400%. in full satisfaction of all he could claim from him, and charges his real estate with the payment of his debts. The debt which the testator owed B., with an arrear of interest, amounted to 800Z., but was barred by the Statute of Limitations. The Lords Com- When of less missioners held the land liable to the whole debt. Again, in Graham v. Graham (j), the plaintiff claimed three annuities given by her husband's father: the first a grant by deed of 10 per annum for a term of ninety-nine years, on condition that she maintained her son, and which was charged on a particular estate; the second of 61. per annum, during her widowhood, given by bond; the third by his will, of 10l. per annum charged generally. Lord Hardwicke, C., observed; "The question is, whether the latter annuity can be considered as a satisfaction for either of the other two granted in his life? For both together amounting to 161. per annum, that being but 101. per annum, cannot be a satisfaction; nor can it be for the 107. annuity granted by deed; although there are several cases in which the Court leans against double provisions on the foot of parity between them. Though it is voluntary in respect of his grandson, it is not so in respect of his daughter-in-law, who being by agreement to maintain her infant son for it, otherwise to cease, is considered as a purchaser; and the grandson would have a right to come into equity by prochein amy, for maintenance thereout. As to the 67. annuity, which was nothing but a debt on his estate, I think the last will be a satisfaction for it; for the person so indebted gives by his will a better annuity, which falls within all the rules established of satisfactions. If it were a bond for payment of a gross sum, and he gave an equal or larger sum by his will, it would certainly be a satisfaction. I do believe the intent was, as has been said for the plaintiff, to increase his bounty; and he has done it, by giving an additional 101. per annum to the first 10. As to what was further said (that the Court will not hold what is given by a will, a satisfaction for either, where several things are given before), there might be a great deal in it; and therefore if he were chargeable with two, and devised an annuity equal to one, I should not have thought it a satisfaction for either; but it should accumulate. But he was not a general debtor for both, only for the 67. annuity; having granted the 107. annuity by way of charge on a particular estate, and really for amount than debt. |