He Where legacy

to his debtor

not a release of

the debt.

his possession, shows that he did not mean to give it up. might easily have shown his intention so to do, by tearing off the by a creditor seal. On the other hand, if he had forgot it, there was a total absence of intention with respect to it. A gift of a legacy may certainly be so framed as to be a release of a demand, but it must be clear. But this case can be raised no higher than an absence of intention; and the mere absence of intention can never be construed into a release. My opinion therefore is, that the defendant has a right to have the amount of the bond deducted;" and the decree was accordingly.

We may here insert the case of Aston v. Pye (x). The defendant was indebted to his uncle Sir Thomas Pye, by a note of hand for 3007, payable at twelve months after date. The uncle made his will, dated the 17th of August 1785, and, after his death, the executors found the following entry: "Henry James Pye pays no interest, nor shall I ever take the principal, unless greatly distressed." The date of this entry was subsequent to that of the will. Lord Kenyon, M. R., directed a trial at law as to the effect of the entry; and the question was argued in the Court of Common Pleas, Easter Term, 28 Geo. 3, whereupon it was determined, the entry could not operate as a release. It was said in argument, that Lord Kenyon said there was no proof of a large surplus. That proof was given at law and upon a case reserved, the Court was of opinion, this could not be taken as a discharge in the lifetime of Sir Thomas Pye, but was testamentary. The cause was adjourned, and time allowed to prove the entry in the Ecclesiastical Court. In Easter term the cause came on again; and the Court being informed that probate was refused by the Ecclesiastical Court, declared, that, as it belonged to the Ecclesiastical Court to say, what was, or what was not, testamentary; and they held, it was not testamentary, it must be considered as a conditional discharge of the debt: the testator never having demanded interest, and having died in affluent circumstances, the executors were not entitled to recover.

It will be proper here to notice the case of Gould v. Adams, which occurred in Ireland (y).

In that case, Michael Gould, in the year 1764, had become security for the plaintiff, and on the 12th of April 1780, he was obliged to pay for him 392l. 10s. M. Gould had made a will in 1779, wherein he devised an annuity of 100%. to the plaintiff for life,

(1) 5 Ves. 350, in notis, and 354, per Lord Loughborough, C.

(y) Vern. & Scriv. Rep. 258.

Where the will but having been obliged to make the payment before mentioned, contains an ex- he made a new will in 1782, and thereby devised to the plaintiff press release of the debt. an annuity of only 50l. for life. The plaintiff filed his bill to have the annuity decreed a charge upon the lands made subject thereto by the will. The defendants, the representatives of the testator, refused to pay the annuity, until the plaintiff should discharge the debt of 3927. 10s. The question was, whether the devise was an extinguishment of the debt. Yelverton, C. B., said, where a man makes a will and leaves a legacy, it is primá facie to be intended a benefit to the legatee; now if the money due by the plaintiff to his brother the testator were to be set off against the annuity, the plaintiff would take no benefit; besides, where there is an annuity devised it is not so proper to allow a set off against it, as if it were a sum in gross: and the annuity was decreed a charge upon the land, and an account to be taken of the arrears. It is presumed that the better opinion is opposed to the last case cited. The case of Wilmot v. Woodhouse is an authority to the contrary; and had the general rule been, as stated by Yelverton, C. B., there would not have been any occasion in the case of Eden v. Smith, to resort to the evidence aliunde, to prove that the testator considered the debt as discharged; and the whole of Lord Loughborough's argument was incorrect.

In Hyde v. Neate (y), the testator gave legacies to several legatees by his will, and by a codicil declared that should certain legatees (naming them) or any other person who had a legacy left them by any will, owe him any sum or sums of money at his decease, it should be considered as part of their legacy. I. T. N. one of the legatees whose legacy was 100%, owed the testator 4,000l. Exceptions were taken by I. T. N. to the Master's report, who expressed his opinion that the testator did not by his codicil intend to release I. T. N.'s debt; and Sir L. Shadwell, V. C., allowed the exceptions; and, observing upon the ignorant penning of the codicil, written by the testator himself, expressed his opinion that the words could not be construed in any other method than as meaning, that if any person owed the testator any thing, the debt should be considered part of the legacy, in the sense, that the legatee should take both the legacy and a remission of the debt.

The cases, wherein the testator expressly forgives or releases the debt of his creditor, do not of course fall within the present

(y) 11 Jur. 259.

subject: the reader is therefore merely referred to some of the leading authorities on that subject in the note below (z).

It may be proper to notice in this place, that, where a creditor forgives or bequeaths a debt due to him by the legatee as one of two or more joint debtors; as, for instance, where the obligee bequeaths the sum due to him by one of two joint obligors of a bond, it is not a release to the other of the two obligors, but is only a personal legacy to him, whose debt is so forgiven, and will lapse by the death of the legatee in the testator's lifetime, so that his personal representatives will still be liable (a).

Where a testator recites that a legatee is indebted in a certain sum which he forgives him, that recital binds the legatee, except in the case of a clear mistake of figures; and the legatee must elect to take under or against the will; and he is not at liberty to claim as a legacy out of the assets so much, as with the debt he alleges only due, would make up the amount of the sum stated to be due by the testator (b).

But a mere declaration of a testator to his bond creditor, that he would not sue for the money, is not sufficient to constitute a release; but if such declarations were reduced into writing by a testamentary paper, they might operate as a gift to him of the money due upon the bond (c).

Where the will

contains an ex

press release of the debt.

of creditor ap

a release.

In close connection with the preceding consideration, though of the effect perhaps not strictly within the professed subject of the present pointing his Treatise, a brief summary may with convenience be introduced debtor his exof the leading principles of Law and Equity respecting the con- ecutor at law sequences of a creditor appointing his debtor to be his executor. It is settled, that at law it shall be a release or extinguishment of the debt: because the executor cannot maintain an action against himself. The appointment by the creditor to the office discharges the action, and consequently, with it, the debt; which is merely a right to recover the amount by way of action (d); As, for instance, where an obligee on a bond appoints his obligor his executor. The law is the same, where the executor is one of two or more joint and several obligors (e); or where the debtor

(z) Sibthorp v. Maxom, 3 Atk. 581; Elliott v. Davenport, 2 Vern. 521; Toplis v. Baker, 1 P. Wms. 82, n. (2); Att. Gen. v. Holbrook, 3 Yo. & Jerv. 114.

(a) Izon v. Butler, 2 Price, 34; Maitland v. Adair, 3 Ves. 231.

(b) Robinson v. Bransby, Mad. & Geld. 348.

(c) Reeves v. Brymer, 6 Ves. 519, per Master of the Rolls.

(d) Salk. 299; Com. Dig. Administration, B. 5; 2 Bl. Com. 511, 512; Freakley v. Fox, 9 Bar. & Cress. 130.

(e) Office of Exec. 11, 31.

Of appoint

ment of debtor to be executor.

in equity not.

is one of two or more executors (f). Nor, if such creditor executor die, can the surviving executors bring the action against his representatives, though he died before probate (g). But if such executor formally renounce, the law is otherwise (h).

The appointment of an executor is an act of the testator, and at law the release is an absolute discharge (i); but adininistration granted to the debtor is an act of law, and a suspension only of the right of action, which may revive again (j). But though the appointment of a debtor to be executor is a release at law, in equity the rule is otherwise well settled (k), and an appointment of a debtor to be executor is not there considered a release, unless a clear intention appear; since it belongs to the jurisdiction of that Court to administer the assets of the testator according to his intention, and the equitable claims of those who have demands upon those assets. In Errington v. Evans (1), the question was, whether a bond debt due to the testator from one of the defendants, who was one of the executors and proved the will, was extinguished; and it was held, that, where an obligee makes an obligor one of the executors, and takes no notice of the bond, but devises the residue of his estate to others, it is not an extinguishment; though at law it would be so, because a personal demand once suspended was not to be resumed. A similar determination took place in the case of Phillips v. Phillips (m).

The executor will be a trustee of the debt for the residuary legatee (n), or for the next of kin (0), according to the circumstances of the case.

(ƒ) Office of Exec. 11, 31.
(g) Ib. & Salk. 300.

(h) Ib. 307.

(i) 2 Dick. 456.

(j) Salk. 302; Cro. Car. 373.

(k) Berry v. Usher, 11 Ves. 90, and note.

(1) 2 Dick. 456.

(m) Cha. Ca. 292, and 2 Freem. 11; see also Harg. Co. Lit. 264, b., note (1).

(n) Brown v. Selwin, For. 240. (0) Carey v. Goodinge, 3 Bro. C. C. 110; see also Vol. I. chap. IX. of this work.

CHAPTER XVIII.

Of the Satisfaction of Portions by Legacies.

WHERE a parent is under obligation, by articles or settlement, to provide portions for his children, and he afterwards, by will or codicil, makes a provision for those children, it is a wellestablished rule of equity, that such subsequent testamentary provision shall be considered a satisfaction or performance of the obligation. We have seen, in the preceding chapter, that upon questions of satisfaction of debts by legacies, trifling points of difference (a) between the debts and legacies were adjudged sufficient to repel the presumption of satisfaction; but, with respect to the satisfaction of portions, the rule of presumption is much more favoured; the inclination of the Court of Equity being against raising double portions. If, therefore, the legacies be less in amount than the portions, or payable at different periods, the legacies will, notwithstanding, be considered satisfactions, either in full or in part, according to circumstances. But, though these circumstances of difference are considered insufficient to rebut the presumption of satisfaction, yet, where the legacy is contingent, or given with a view to some other purpose, the rule of the Court is different, and such legacies are not considered as a satisfaction. The inclination, however, is so strong against double portions, that it has been decided, that although no legacy is given by a will, yet if, by the intestacy of the parent, a distributive share of his personal or any real estate devolves upon the child, of equal or greater value than the portion, it shall be a satisfaction of the portion. We proceed, therefore, to consider

SECT. I. Those cases wherein the testamentary provision is considered a satisfaction of the portion; and herein of parol evidence.

SECT. II. The cases wherein such provision has not been so considered, where the testamentary provision was contingent, or given for a different purpose.

(a) Hartopp v. Hartopp, 17 Ves. 191.