creditor is not When legacy contingent or the widow to E. Potter and E. Nicholls, that, being upon the Where legacy contingencies of their surviving their respective mothers, there by debtor to could be no pretence to say they should be a satisfaction of the a satisfaction of annuities given them absolutely by Thomas Boddington's will: the debt. with respect to the annuities given to M. Dimmock and E. Dimmock by the widow's will, although of the same yearly value, uncertain. and of longer duration than those bequeathed by the testator's will, yet, as the widow had not declared that the one should be a satisfaction of the' other, he (Lord King) saw no reason, why she should not be supposed to have intended to be kind as well as just to her husband's relations. His Lordship decreed that M. Dimmock and E. Dimmock should have the several annuities given them by both wills; and that E. Potter and E. Nicholls, besides what was given to them by the will of the testator, Thomas Boddington, should also have the annuities given them by the widow's will, if they survived their respective mothers. The last case with respect to the annuities given by the widow to M. Dimmock and E. Dimmock is a strong authority to show the disposition of the Court to avoid the rule in favour of satisfaction; and it might be contended, that it is difficult to distinguish the case as to those two annuities, from the cases adduced in the first section of this chapter in support of the rule; and that Lord King's determination seems to exclude the rule altogether, and to infer that in no case shall the legacy be deemed a satisfaction of the debt, unless an intention is clearly expressed or implied it should have that effect. It may, however, be remarked, in support of Lord King's determination, that these two annuities to M. Dimmock and E. Dimmock were coupled with others, which the Court according to well established rules, was bound to consider as not importing any intention in favour of satisfaction ; and that as no contrary intention appeared in regard to the annuities to M. Dimmock and E. Dimmock, he was bound to consider them in the same light with the rest. In Pullen v. Cresy (j), a testator gave to each of the children of A. 50% to be paid to the father for their use; the father by will gave to each of his children 2601. if they attained the age of twenty-one years; it was decided that the legacies by the father's will, were no satisfaction of the legacies given to his children by the will of A. We proceed with the second class of contingent legacies; as Where the lewhere the debtor has bequeathed to his creditor the whole or half gacy is contingent from the (j) 3 Anst, 830. by debtor to creditor is not a satisfaction of the debt. uncertain nature of the Where legacy of his residuary estate, such bequests simply, though eventually of larger amount than the debt, have never been adjudged a satisfaction; for non constat at the date of the will, whether, at the testator's death, after all claims upon his property are satisfied, his estate, which was in continual fluctuation till the last subject; as of mentioned period, will be equally beneficial to the legatee as his debt. It is therefore inferred from the nature of a residue, and the uncertainty of its amount, that when a testator bequeaths it wholly or in part to his creditor, he does not intend such an indefinite bequest to operate as a satisfaction of a certain and definite duty. a residue. Accordingly in the case of Devese v. Pontet (k), Felix Devese, in 1768, covenanted by marriage articles, that in case Barbara Gillanders, his then intended wife, should survive him, and there should be no issue, his heirs, executors or administrators, should within nine months after his death, pay her 8007. for her own use, benefit and disposal; but if there should be any child or children of the marriage, then that the interest thereof should be paid to his wife for life, and after her death, the principal paid to or divided among such child or children, &c. In 1781, Felix Devese, after giving by his will several specific articles to his wife, directed that all the debts owing to the business which he then carried on, should be collected with all possible dispatch; that the household goods and stock in trade should be valued, and the money which should be in the public funds, and the produce of all being collected, the whole should be divided into two equal shares; the one to be the property of his dearly beloved wife, for her to dispose of as she pleased; the other to be the property of his brother Peter Devese, whom he appointed his heir general. One question was, whether the provision in the will for the testator's widow, was a satisfaction of the covenant in the marriage articles? Upon which the Master of the Rolls observed, that the rule should be adhered to, as laid down by Lord Somers, in Goodfellow v. Burchett (1); who observed, that cases of this nature depended upon circumstances, and when a legacy had been decreed a satisfaction, it must be grounded upon some express evidence, or at least a strong presumption, that the testator intended it as such. That he (the Master of the Rolls) could not find any in the present case. If that opinion interfered with the disposition of the will, he should yield, but (k) 1 Cox, Ca. 188; Prec. Ch. ed. by Finch. 240, in notis; see also Barrett v. Beckford, 1 Ves. 519. (1) 2 Vern. 297. ditor is not a the debt. Where debt is contingent. he thought that it did not, for he could not say, that the tes- Legacy by tator had it in contemplation to satisfy the covenant. There debtor to crewere two provisions made by the articles, one in case of no issue, satisfaction of the other in case of issue. Had the testator intended to satisfy the covenant, it was reasonable to presume, he would have done so in toto: yet had the wife been enceinte, the will would not have provided for the second part of the covenant. If, therefore, the slightest circumstances were to be laid hold of, he might take in aid these circumstances to make it doubtful, whether the testator meant to satisfy the covenant; and in that case, he might say with Lord Thurlow in Haynes v. Mico (m), “incumbit onus petitori": viz., the person saying it was a satisfaction. Another ground was, that an unliquidated residue had never been taken as a satisfaction. Where a positive sum was given, it might be conceived that the testator so intended; but where it was to wait the result perhaps of a long protracted suit in Chancery, it never could be meant so. It must be argued that the party was to wait the event for years, and then if the sum was equal to the debt, it must be taken in satisfaction. But that was denied in Barrett v. Beckford, and how did the present case differ? Upon the general principle, therefore, laid down by Lord Somers and Lord Hardwicke, that a residue should not be taken in satisfaction, he (the Master of the Rolls) was of opinion that the covenant in the marriage articles was not satisfied by the provision of the will. is contingent. 7. The same principle which induced the Court of Chancery to Where the debt establish an exception to the rule of satisfaction, where the bequest is uncertain or contingent, led to a similar construction, where the debt itself is contingent, as where it arises from a running account between the testator and the legatee; for, in such case, if, upon the winding up of an account current, the testator's estate should appear indebted to the legatee, the legacy shall not be considered a satisfaction of such casual debt; for non constat it might be known to the testator that any thing was owing from him to the legatee; so that no intention can be inferred, that the testator meant the legacy a satisfaction of the debt, which at the date of his will he did not know to be existing. Thus, in Rawlins v. Powel (n), the testator owed the defendant, a satisfaction of the debt. When debt is contingent. Where legacy upon an open running account, monies computed to be upwards by debtor to of 300%; and by his will gave the defendant a legacy of 500L, creditor is not and appointed him executor, without disposing of the residue. The next of kin of the testator filed their bill against the defendant, insisting that the legacy should be a satisfaction of his debt. The Master of the Rolls decreed in favour of the defendant; and upon an appeal to Lord Cowper, his Lordship said, the nature and circumstance of the debt were material; for it was upon an open running account between the testator and his executor, so that it might not be known to the testator whether he owed any money to the executor or not; then the testator could not intend the legacy to be in satisfaction of the debt, which he did not know that he owed, any more than a legacy could be a satisfaction of a debt contracted after the making of the will (o). The decree, upon a subsequent day, was, that the defendant should have both the debt and the legacy. On debts due on bills of exchange. Of servants' wages. In Carr v. Eastabrooke (p), the Master of the Rolls was of opinion, that a debt due upon a negotiable bill of exchange was not such a debt as would be cancelled by a subsequent legacy; and it seems upon this principle, that, as the debt might be transferred instanter to a stranger upon receipt of the bill by the payee, if it were, nothing would be owing from the testator to the legatee, of which the legacy could go in satisfaction. As no presumption, therefore, is to be made in favour of the rule of satisfaction, the Court will not imply or infer an intention in the testator to cancel such contingent debt by a testamentary gift. There appears to be some doubt, whether servants' wages form a further exception to the rule of presuming satisfaction of a debt by a legacy; and the consideration of this question might in point of arrangement be introduced in this place, since it is conceived that the fluctuating and uncertain nature of wages is one of the reasons for their forming an exception; but it was thought more convenient to discuss this subject in a subsequent section of the present chapter. Indeed, the Court, as before observed, lays hold of any circumstance, however trifling, to raise a presumption, that the testator did not intend the legacy as a satisfaction. Of this, the case of Meredith v. Wynn (q) is an illustration. By the wills of Serjeant Owen Wynn and another person, a legacy of 100% and (v) See Cranmer's case, 2 Salk. ch. 14, s. 2, pp. 864, 889. (p) 3 Ves. jun. 561, and see Vol. I. creditor is not the debt. Where will another of 50% were left to Barbara, the daughter of John Wynn; Where legacy which sums of money were owing from John Wynn, as executor by debtor to of both testators. J. Wynn, having authority under his marriage a satisfaction of settlement to charge real property with a sum of 2,000l., executed his power in favour of his daughter Barbara, and another directs payment daughter Dorothy, directing that his son William should, within of debts and legacies. two months after his death, give them security for 1,000l. a piece; and he also gave his two daughters additional legacies of 250Z each. The question was, whether the provisions made by the father's will in favour of Barbara, should go in satisfaction of the two legacies of 100% and 50%. owing to her from him at the date of the will: and it was determined, that the benefits given to Barbara by her father's will were not to be considered in satisfaction of the two legacies, because there was no legacy given to Barbara in particular; the 2,000l. which the father had the power of charging being given equally to his two daughters: if, therefore, such gift should be taken as a satisfaction of Barbara's two legacies, she would not receive an equal share of the 2,000Z, since she would be deprived of the two legacies given her by the wills of the other persons; and the father's bequest of the 2,000% to his two daughters equally, shewed that he intended to make no difference between them, as to the shares which they were to receive. press direction for the payment legacies. of debts and 8. It seems, that where there is an express direction in the Where the will will for payment of debts and legacies, the Court will infer from contains an exthe circumstance, that the testator intended that both the debt owing from him to the legatee, and the legacy, should be paid. Lord King appears to have relied considerably upon such direction, in reversing the decree of the Master of the Rolls, in Chancey's case (r). In that case, one being indebted for wages to a maid servant, who had lived with him for a considerable time, gave her a bond for 1007., and in the condition of the bond it appeared to be for wages; afterwards the testator, by his will, among other things, gave a legacy of 500l. to his maid servant, and it was mentioned in the will to be given to her, for her long and faithful services. The maid servant having, on her master's death, possessed herself of divers goods that were his, the plaintiff Chancey, who was the executor, brought his bill against her for an account, but paid to her 1007. and interest secured to her by the bond. For the defendant it was urged, that she should (r) 1 P. Wms. 408. |