§ 1119. The third and last class of cases to which we have alluded, as connected with the doctrine of satisfaction, is, where a legacy is given to a creditor. And here, the general rule is, that where the legacy is equal to, or greater in amount than an existing debt, where it is of the same nature; where it is certain, and not contingent; and where no particular motive is assigned for the gift; in all such cases the legacy is deemed a satisfaction of the debt. The ground of this doctrine is, that a testator shall be presumed to be just before he is kind or generous. And, therefore, although a legacy is generally to be taken as a gift, yet, when it is to a creditor, it ought to be deemed to be an act of justice, and not of bounty in the absence of all countervailing circumstances, according to the maxim of the civil law, "Debitor non præsumitur donare.' 2

§ 1120. Some of the observations which have been already made, apply, although with diminished force, to this class of cases. For, where a man has assets, sufficient both for justice and generosity, and where the language of the instrument imports a donation, and not a payment, it seems difficult to say why the ordinary meaning of the words should not prevail. Where the sum is precisely the same with the debt, it may be admitted, that there arises some presumption, and, under many circumstances, it may be a cogent presumption of an intention to pay the debt. But, where the legacy is greater than the debt, the same force of presumption certainly does not exist; and, if it is less than the debt, then (as we shall presently see), the presumption is admitted to be gone.

§ 1121. It is highly probable that this doctrine was derived from the civil law, where it is clearly laid down, but with limitations and qualifications in some respects different from those which are recognized in equity jurisprudence. Where the debt was absolutely due, and for the same precise sum, a legacy to the same amount was deemed a satisfaction of it. But, if there was a difference even in the time of payment, between the debt and the legacy, the latter was not a satisfaction. "Sin autem, neque modo, neque

12 Fonbl. Eq. B. 4, Pt. 1, ch. 1, § 5, note (); Talbott v. Duke of Shrewsbury, Prec. Ch. 394; Ward v. Coffield, 1 Dev. Eq. 108; Jeffs v. Wood, 2 P. Will. 131, 132.

2 Ibid.; Rawlings v. Powell, 1 P. Will. 229. See the distinction between cases of

debts paid in full before and after the will. 3 Hare, 281, 298.

3 See Chauncey's case, 1 P. Will. 410, and Mr. Cox's note (1); Fowler v. Fowler, 3 P. Will. 354. [See Parker v. Coburn, 10 Allen, 82.]

4 Pothier, Pand. Lib. 34, tit. 3, n. 30

to 34.

1

tempore, neque conditione, neque loco, debitum, differatur, inutile est legatum." And so, if the legacy was more than the debt, it seems that it was not a satisfaction. "Quotiens debitor creditori suo legaret, ita inutile esse legatum, si nihil interesset creditoris ex testamento potius agere, quam ex pristinâ obligatione.” 2

§ 1122. But, although the rule, as to a legacy being an ademption of a debt, is now well established in equity, yet it is deemed to have so little of a solid foundation, either in general reasoning, or as a just interpretation of the intention of the testator, that slight circumstances have been laid hold of to escape from it, and to create exceptions to it. The rule, therefore, is not allowed to prevail, where the legacy is of less amount than the debt, even as a satisfaction pro tanto; nor where there is a difference in the times of payment of the debt and of the legacy; nor where they are of a different nature as to the subject-matter or as to the interest therein; nor where a particular motive is assigned for the gift; nor where the debt is contracted subsequently to the will; nor where the legacy is contingent or uncertain; nor where there is an express direction in the will for the payment of debts; nor where the bequest is of a residue; nor where the debt is a negotiable security 10 [nor where the legacy is given to the creditor's wife]; nor where the debt is upon an open and running account.12 And as to a debt, strictly so called, there is no difference, whether it is a debt due to a stranger or to a child. 18

11

1 Pothier, Pand. Lib. 34, tit. 3, n. 31; Dig. Lib. 30 (Lib. prim. de Leg.), tit. 1, 1. 29; Inst. Lib. 2, tit. 20, § 14.

2 Pothier, Pand. Lib. 34, tit. 3, n. 33. 3 See Eaton v. Barton, 2 Hill, 576; Fitch v. Peckham, 16 Verm. 150.

4 See Goodfellow v. Burchett, 2 Vern. 298, and Mr. Raithby's note; Chauncey's case, 1 P. Will. 410, Mr. Cox's note (1); Nichols v. Judkin, 2 Atk. 301; Richardson v. Greese, 3 Atk. 68; Hales v. Darrell, 3 Beavan, 324; Edelen v. Dent, 2 Gill & Johns. 185; 2 Roper on Legacies, by White, ch. 17, p. 28 to 67; 2 Fonbl. Eq. B. 4, Pt. 1, ch. 1, § 5, note (/); Bell v. Coleman, 5 Mad. 22. [See Smith v. Smith, 1 Allen, 129.]

5 Van Riper v. Van Riper, 1 Green's Ch. 1; [Gilliam ». Brown, 43 Miss 641]. 6 Cloud v. Clinkenbeard, 8 B. Monroe, 397.

66.

7 Dey v. Williams, 2 Dev. & Batt. Eq

8 Strong v. Williams, 12 Mass. 391.

9 Barrett v. Beckford, 1 Ves. 519; Devese v. Pontet, 1 Cox, 188; s. c. Prec. Ch. by Finch, 240, note. [See Graham v. Roseburgh, 47 Miss. 111.]

10 Carr v. Eastabrooke, 3 Ves. 564. 11 Hall v. Hill, 1 Dru. & War. 94; Mulheran v. Gillespie, 12 Wend. 349.

12 Rawlins v. Powell, 1 P. Will. 229. 18 Tolson v. Collins, 4 Ves. 483. The principal cases on this subject will be found collected in 2 Roper on Legacies, by White, ch. 17, p. 28 to 67; 2 Fonbl. Eq. B. 4, Pt. 1, ch. 1, § 5, note (/); Goodfellow v. Burchett, 2 Vern. 298, Mr. Raithby's note; Chauncey's case, 1 P. Will. 410, Mr. Cox's note; 2 Mad. Pr. Ch. 33 to 49; Jeremy on Eq. Jurisd. B. 1, ch. 1, § 2, p. 114 to 116.

§ 1123. On the other hand, where a creditor leaves a legacy to his debtor, and either takes no notice of the debt, or leaves his intention doubtful, courts of equity will not deem the legacy as either necessarily or prima facie evidence of an intention to release or extinguish the debt; but they will require some evidence, either on the face of the will, or aliunde to establish such an intention.1 § 1123 a. Closely allied to the subject of election and satisfaction in cases of legacies, is the doctrine as to what is called the cumulation of legacies, or when and under what circumstances legacies given by different instruments or wills are to be deemed cumulative or not. The general rule here is, that where legacies are given by different instruments, the presumption is, primâ facie, that two legacies are intended, and that the last is not a mere repetition of the former; nor will the fact that each legacy is for the same amount in money operate to repel the presumption that they are cumulative, unless indeed there are other circumstances to repel it.2 As, for example, if the testator connects a motive with both, and that motive is the same, the double coincidence will induce the court to believe that repetition and not accumulation is intended. A fortiori, where each instrument gives precisely the same thing, as a horse, or a coach, or a particular diamond ring; or the language shows by express declaration or natural implication, that the testator intends a mere repetition, the presumption of accumulation is completely repelled.3

1

2 Roper on Legacies, by White, ch. 17, he stated the rule to be, that, where legap. 28; id. § 4, p. 61 to 66.

[See England v. Lavers, 3 Eq. 63; Wilson v. O'Leary, L. R. 7 Ch. App. 448.]

Hooley v. Hatton, 1 Bro. Ch. 390, note; Hemming v. Clutterbuck, 1 Bligh, 3. 8. 479; Hurst v. Beach, 5 Mad. 358; Suisse ». Lowther, 2 Hare, 432. In this last case, Mr. Vice-Chancellor Wigram said: "On questions of repetition or accumulation, most of the judges have referred, as Lord Eldon did, in the case of Hemming v. Gurrey (2 Sim. & Stu. 311; 1 Bligh, N. s. 479; s. c. nom. Hemming v. Clutterbuck), to the judgment in Hooley v. Hatton (1 Bro. C. C. 390, n.), as containing a sound exposition of the law upon the subject, and in the case of Hurst v. Beach (5 Mad. 358), Sir John Leach drew his conclusion from the cases with great precision, and, as it appears to me, with great accuracy;

cies are given by different instruments, the presumption is, primâ facie, that two legacies are intended. But, inasmuch as if a testator were by one instrument to give a particular ring, or horse, or specific chattel, and were, by another instrument, to give precisely the same thing, it would follow that the second must be a repetition, so, if the bounty given by one instrument be, in terms, a repetition of that which has gone before, the court has presumed that the second was intended to be repetition and not accumulation. It is clearly decided, however, that the mere fact that the amount is the same, is not such an identification of the second with the first as would prevent both from taking effect as cumulative; but if, in addition to the amounts being the same, the testator connects a motive with both, and the express motive is also

[* § 1123 6. In a recent case1 the question arose how far the provisions of an English will shall be considered presumptively in satisfaction of the provisions for the same persons, the testator's grandchildren, under a Scottish settlement, there being in the Scottish law no presumption against double portions. It was held that in regard to the instrument last in date, it being of English character, its effect and operation must be determined by the English law, and being of a character to operate in satisfaction of the provisions under the settlement, by the English law, it will have the same effect as to the Scottish settlement.

§ 1123 c. It seems to be entirely well settled that, to create a case of election, one of the provisions must have been intended as alternative to the other, and that where both are part of the same scheme of the donor, and not substitutionary the one for the other, there arises no case of election, because a portion, or all of one, fails through defect of power on the part of the donor. As where the testator appointed property to his daughters equally, who were objects of the power, and then disposed of all his residuary estate to the same daughters in the same way, and directed that the share to which each daughter should become entitled under his will and the appointment should be held in trust for the daughters, for life, with remainder for their children, who were not objects of the power, and it was held that the daughters took absolute interests under the appointment, and that no case of election as against their children was presented.2]

the same, the double coincidence induces the court to believe that repetition, and not accumulation, was intended. Except in such cases, and the class of cases to which I am about to advert, the court does not infer that repetition was the object, unless it be so declared, or it is to be collected from the words of the will itself. The presumption, in the case of several gifts by different instruments, being in favor of accumulation, it is clear that the claim of the plaintiff in this case must be strengthened by any circumstances of difference between the two gifts, whether it be found in the amount, in the character in which it is given, - in the mode of employment, in the extent of the interest, or in the motive for the bounty. All these considerations tend, in the judgment of the court, to support the argument in favor of accumulation. Now, in

the legacy to Suisse, by the last codicil, there is a particular description of Suisse, which imports a motive of a later date than the former legacies; he is described as an excellent man,' and the amount being different and less beneficial to Suisse than the amount of the previous gifts to him, this adds to the presumption already in his favor, that a distinct gift was intended; and the only question, therefore, is, whether there is any thing in the word 'provide,' as used in the last codicil, which should lead the court to the construction that the legacy is not cumulative."

1 [* Campbell v. Campbell, 12 Jur. N. S. 118; s. c. L. R. 1 Eq. 383; as to substitutionary gifts, see Re Merrick's Trusts, 12 Jur. N. s. 245.

2 Churchill v. Churchill, Law Rep. 5 Eq. 44.]

CHAPTER XXXI.

APPLICATION OF PURCHASE-MONEY.

[* § 1124. The purchaser bound to see to the application of the purchase-money in case of trust.

§ 1125. This rule not universal.

§ 1126. Real estate now liable for the payment of all debts.

§ 1127. Where trust is specific, purchaser must see to application of purchase-money.

§ 1127 a. But not where it is general and indefinite.

§ 1128. Rule does not apply to personal estate.

§ 1129. Will make no difference that part of personalty is specifically bequeathed.

§ 1130. Rule does not apply to real estate devised for payment of debts generally. § 1131. Form of the charge not important.

§ 1131 a. But if purchaser is knowing to a breach of trust, he is liable.

§ 1132. So rule applies to real estate charged with particular debts or legacies.

§ 1132 a. The rule does not apply where the testator reposes the trust of applying the money in the trustee.

§ 1133. Difference between a charge, before and after the time of sale.

§ 1134. Rule does not apply where discretion is to be exercised by trustee. § 1135. The rule an embarrassing one.]

§ 1124. Ir is in cases of trusts under wills also, that questions often arise, as to the payment of purchase-money to the trustees, and as to the cases in which the purchaser is bound to look to the due APPLICATION OF PURCHASE-MONEY. This subject, therefore, although it may equally apply to other cases of trusts, created inter vivos, may be conveniently treated in this place. It has been remarked by a very learned writer, that courts of equity have in part remedied the mischiefs (if they can be deemed mischiefs) arising from the admission of trusts, with respect to the cestui que trust or beneficiary, by making persons paying money to the trustee, with notice of the trust, answerable in some cases for the proper application of it to the purposes of the trust. But at the same time he thinks it questionable, whether the admission of the doctrine is not, in general, productive of more inconvenience than real good; for, although in many instances, it is of great service to the cestui que trust, as it preserves his property from peculation and other disasters, to which, if it were left to the mere discretion of the trustee, it would necessarily be subject; yet, on the other hand, it creates great embarrassments to purchasers in many cases; and especially, where, as in cases of infancy, the parties in interest are