ture which he had intended to discharge by his will. But in the case of a stranger, what he gives by his will he gives as a mere bounty, and what he afterwards advances, he gives as an addition to his first bounty. Where these double gifts take place between parent and child the presumption of satisfaction takes place notwithstanding slight circumstances of difference between the advancement and the portion, and a difference in the amount.

And it would seem that where a testator standing or acting in loco parentis, after giving a legacy to the object of his care, makes a provision in his lifetime for the legatee, such advancement will be presumed to be in satisfaction. At least parol evidence will be easily let in to shew that the legacy was intended as a provision or portion".

• Pye ex parte Dubost ex parte, 18 Vez. Jun. 140.

7 Vez. Jun. 508. and Monck v. Lord Monck, 1 Ball and Beatty's Reports, 298.

SECTION II.

Debts paid by Legacies.

IT is also a rule of presumption well established in Courts of Equity, that where a legacy is given by a debtor to his creditor, exceeding, or equal to, the amount of the debt, it is a satisfaction of the debt. This rule of presumption, though established, is met by another, viz. that every bequest is prima facie a benevolence (1); on which ground the courts have of late viewed it with great jealousy, and have shewn a very ready disposition to take cases out of it, wherever any thing could be collected from the will, indicative of a contrary intention in the testator (2).

(1) See the remark of Lord Chancellor Talbot in Fowler v. Fowler, 2 P. Wms. 353. and of Lord Hardwicke in Richardson v. Greese, 3 Atk. 68. who there says, that the maxim of debitor non præsumitur donare would not hold, if it were to be reconsidered. And again, that "legacies naturally imply a bounty." And observe what was remarked by Lord King, in reversing the decree of the Master of the Rolls, in Chauncey's case, 1 P. Wms. 410. Lord Alvanley also called it a very absurd rule, 3 Vez. Jun. 466.

a debtor is not to be presumed to intend a gift to his debtor, and, that legacies im

(2) I do not undertake to enumerate all the circumstances which ply a bounty. will take a case out of the operation of this rule of presumption. The following, however, are the most prominent. Where the payment of debts is particularly mentioned in the will, Chauncey's case, 1 P. Wms. 409. If the legacy is contingent, Spinks v. Robins, 2 Atk. 491. Postponement of the period of the payment of

Of the distinction

But notwithstanding the strong disposition of the courts to bound the application of this rule of presumption, parol evidence has been refused by great chancellors to be admitted to take a case out of its operation. Thus in Fowler v. Fowler, Lord Talbot, after having at the same time declared his disapprobation of the maxim, and his apprehension of the danger of attempting to alter it, observed that, though in some cases (3) parol evidence had been allowed, in order to shew that the testator designed to give the legacy, exclusive of the debt; yet his opinion was against admitting such evidence, for then the witnesses and not the testator would make the will. And in Richardson v. Greese, Lord Hardwicke, after remarking that the court had always shewn itself dissatisfied with the rule, and had been fond of distinguishing cases out of it, observed that these distinctions were not to be taken from particular circumstances dehors the will, but must be found in the will itself.

Whether the rule is a rule merely of presumption

3 P. Wms. 353.

b

3 Atk. 60.

the legacy, Clarke v. Sewell, 3 Atk. 96. Nicholls v. Judson, 2 Atk. 300. Uncertainty as to duration or commencement, Matthews v. Matthews, 2 Vez. 635. The subjects of the debt and legacy not being cjusdem generis, Broughton v. Errington, 7 Bro. P. C. 12. Eastwood v. Vincke, 2 P. Wms. 614. Where the debt is incurred after the date of the will, Cranmer's case, Salk. 508. Thomas v. Bennett, 2 P. Wms, 341. Fowler v. Fowler, 3 P. Wms. 354. Where the legacy is to a servant, 3 Atk. 69. by Lord Hardwicke.

、

(3) This had been positively so adjudged, thirty years before, in Cuthbert v. Peacock, 2 Vern. 593.

presump

positive

construc

or of settled and fixed construction, seems to be the between true question upon which these decisions turn; for tions and where a positive rule of construction is established rules of by the maxims or practice of the court, the instru- tion. ment to which such positive rule of construction applies, becomes incapable of any other sense or operation; so that to oppose such construction, is to contradict the instrument itself.

If, therefore, this presumption of a legacy's being a satisfaction of a debt could be shewn to be established upon a technical and positive rule of construction, a sufficient reason would appear for the rejection by the courts of all extrinsic evidence to oppose its operation, however easily such an odious rule might give way to opposite inferences, arising out of the context and apparent design of the instrument itself.

In the case of double portions, when the testator subsequently advances the legatee, the presumption is not connected with any rule of construction, since the will is in that case not affected by construction, but, pro tanto, revoked by a presumption arising entirely out of an act of the testator posterior to the will: but where a legacy is presumed a satisfaction, the will has an operation and construction; though, by being made to act upon a sum already due to the legatee, the benefit, prima facie intended, is lost.

SECTION III.

Double legacies by the same

instrument.

Double Legacies.

WHERE the same thing is given to different persons by the same instrument, the decisions must necessarily turn wholly upon construction. And though the rule of construction is differently stated by very high authorities, some considering the last bequest as revoking the first, others regarding both as cooperating to effect a joint-tenancy, and others again regarding them as rendering each other void for uncertainty; yet I conceive, that, whichever of these opinions be right, parol evidence is to have no share in determining the operation. But the question is opened again, if we advert to the case of two legaBy differ cies to the same person by different instruments, in which the rule of construing the bequests accumulative, seems to rest upon a slight foundation, and to be easily repelled by internal evidence. But it is still a matter of enquiry, how far extrinsic evidence can be received for this purpose".

ent instruments.

In Barclay v. Wainwright, his Honour referred it to the Master to enquire, whether the several persons, legatees by the first codicil, to whom no legacies were given by the second, were dead, or not, in the service of the testator at the date of the second

* James v. Semmens, 2 H. Bl. 213.

See Cliffe v. Gibbons, 2 Lord Raym. 1324.

3 Vez. Jun. 462.