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tingency, or if it be made expressly in satisfaction
of another claim', or if the two gifts be upon difWherever the ferent terms & Where the subject of a specific lesubject of a spe cific legacy is
gacy is withdrawn, the legacy must fail, but there are legacy must fail. many nice, and some, as it should seem, over-curious
distinctions as to what, to this effect, shall be considered as specific. Where a sum of money has been
bequeathed out of a particular fund, it has for the The distinctions most part been considered as a general legacy, or cific and what is legatum in numeratis, so as to entitle the legatee, if into great sub- the testator receive it in his life-time, to have it tety.
made good out of the general effects. But other cases have been decided a different way'.
The Courts on this subject have run into such nicety as to adopt distinctions between a bequest of a sum of money due on a bond from A. and a bequest of such debt generally, holding the legacy in the former case to be pecuniary, and in the latter to be specifick. And a difference has sometimes been taken between a voluntary and compulsory payment of a debt after a bequest of the same ; considering the voluntary payment as not indicating any change of mind in the testator, and therefore not an adempticn, while the payment by compulsion has
e ? Atk. 491. f 3 Bro. C. C. 192. & Id. Ibid.
i 2 Fonbl. 367. note (+).
been looked upon as an active step taken by the testator, in derogation of his own gift'. But this distinction has been denied in other cases (1).
A conversion or specific alteration of the thing bequeathed, as making a raw material, after giving it by will, into a manufactured article, has been held a clear revocation". So if stock be bequeathed and afterwards sold out": but if the same exact quantity be repurchased by the testator the legacy is not adeemedo. And it has been held that if, after bequeathing a debt, the testator receive dividends under the bankruptcy of the debtor, the legacy is not thereby revoked P.
1 2 P. Wms. 330, n. 1.
m 2 Bro. C.C. 110.
a Ibid. • Ca. Temp. Talbot, 226.
(1) 4 Bac. Abr. 355, n. (b) but see 2 Vez. jun. 640, Cole. man v. Coleman, where this distinction has been admitted as a strong circumstance from which to gather the intention, though not as an absolute or decisive ground,
Satisfaction in Equity.
I SHALL here add a few words on the equitable doctrine of satisfaction, as having an affinity with my present subject, without presuming to enter at large into the consideration of the cases, which would greatly multiply my labour without much profit to the reader.
of the distinct This word satisfaction, from its frequent and too meanings of the terms satisfac. vague adoption in courts of equity, seems to have tion and performito
introduced no small confusion of ideas, and I venture to question whether it is often used with technical precision. By considering what it is not, we shall perhaps be soonest conducted to the true apprehension of what it really is. Lord Thurlow declared himself to have met with continual disappointment in his attempts to establish a broad and useful distinction between cases of satisfaction and performance. Since, however, we are forbidden to treat these terms as synonimous, by the rules of construction which have separated them in application, we must not be discouraged, even by his lordship's disappointment, from attempting an approach at least to some practical grounds of discrimination.
To the class of cases called cases of performance, as far as the decisions appear to have gone, those seem properly to belong, wherein a man being under a covenant to do something which is to take effect after his death, does an act in his life-time, or leaves a consequence to arise after his death, which virtually includes, or is, in substance, the thing intended. Thus in Blandy v. Widmore*, where a man covenanted to leave his wife 6201. and died intestate, and the wife's distributive share came to more than 6201. and in Wilcocks v. Wilcocks', in which a man on his marriage covenanted to buy lands of the value of 2001. per annum, and to settle them by way of strict settlement, and afterwards purchased lands of that value, but made no settlement, and died, and left the purchased lands to descend to his eldest son, the eventual benefit in both these cases operated as a presumed perforinance, and not as a satisfaction of the engagement. It is true, that in Wilcocks o. Wilcocks, the eldest son took by the event a fee simple instead of an estate in tail, but he was not the person to take an objection on that ground; and Sir Joseph Jekyll, in observing upon this case", declares his opinion, that if the eldest son had aliened the fee, and died without issue, the second son could not have recovered the estate by virtue of the settlement; which observation, if just, furnishes a strong distinction between a case of performance and a case of satisfaction; for as a satisfaction, it is very clear it could have only bound those (1) by whom the benefit was felto,
1 P. Wms. 323.
> 2 Vern. 558. . See also Lee v. D'Arganda. 8 Auk. 419.
• 3 P. Wms. 225.
In cases of this class, though the intention may not be manifested in expression, yet if no contrary grounds of inference exist, the thing intended or engaged to
be done being in effect performed, the presumption There may be against double portions or provisions prevails'. It performance pro
seems, indeed, that if the effect of the thing be partly performed, such partial performance fulfils the obligation pro tanto in equity : thus where a sum of 30,0001. was covenanted by a man on his marriage to be laid out in land to be settled on himself for life, with remainder to his first and other sons in tail, and the covenanţer died, having laid out only a small part of that sum on the purchase of some land, which he left to descend to his eldest son, Lord Talbot decreed it a performance pro tanto. So also the rule seems to be, that where a
• Vide Wilson v. Pigott, 2 Vez. jun. 355. f Vide Weyland v. Weyland, 2 Atk. 632, Prince v. Stebbing, 2 Vez. jun. 409.
8 Lechmere v, the Earl of Carlisle, 3 P. Wms. 227.
(1) The reporter, indeed, adds a query, whether, if the eldest son had died before the next term, so as that he could not have suffered a recovery, the second son ought then to have been barred of his chance under the settlement.