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of receiving parol evidence against presumptions ; though, as in the opinion of the court, the evidence when received did not with sufficient clearness demonstrate any intention of the testator opposed to the presumption, the presumption prevailed. In Debeze v. Mann', (which, indeed, was the case of a father and putative child, but the legacy being expressed to be for a portion it came up to the principle upon which the presumption is founded in the case of a general legacy by a lawful parent) (2) the presumption was repelled by parol evidence of words used in conversation, clearly importing a design to better the child beyond the extent of the advancement, and because there was no way of carrying into effect such design, but by construing the legacy to be unadeemed.

PART 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

< 2 Br. C. R. 165.

(2) The cases of a natural child, vide Grave v. Lord Salisbury, 1 Bro. C. R. 425; and of uncle and niece, vide Shudall v. Jekyll, 2 Atk. 516, are said to be out of the rule.

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

Of the opposite

(1) See the remark of Lord Chancellor Talbot in Fowler influences of the

v. Fowler, 2 P. Wms. 353, and of Lord Hardwicke in Rich. conflicting rules

that a debtor ardson v. Greese, 3 Atk. 68, who there says, that the maxim is not to be prece of debitor non presumitur donare would not hold, if it were to be gift to bis debtor, reconsidered. And again, that “ legacies naturally imply a bounty." and, that legacies 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, P. Wms. 410. Lord Alvanley called it a very absurd rule, 3 Vez. jun. 466.

(2) I do not undertake to enumerate all the circumstances which will take a case out of the operation of this rule of presumption. The following, however, are the most prominent. Where the

pay. ment of debts is particularly mentioned in the will, 1 P. Wms. 409, Chauncey's case. If the legacy is contingent, 2 Atk. 491, Spinks o. Robins. Postponement of the period of the payment of the legacy, 3 Atk. 96, Clarke v. Sewell, 2 Atk. 300, Nicholls o. Judson. Uncertainty as to duration or commencement, 2 Vez. 635, Matthews v. Matthews. The subject of the debt and legacy not being ejusdem generis, 7 Bro. P. C. 12, Broughton v. Errington, 2 P. Wms. 614, Eastwood v. Vincke. Where the debt is incurred after the date of the will, Salk. 508, Cranmer's case, 2 P. Wms. 341, Thomas v. Bennett, 3 P. Wms. 354, Fowler o. Fowler. Where the legacy is to a servant, 3 Atk, 69, by Lord Hardwicke,

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.

tion between

Whether the rule is a rule merely of presumption of the distincor of settled and fixed construction, seems to be the presumptions

and positive true question upon which these decisions turn; for rules of con

struction. where a positive rule of construction is established

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(3) This had been positively so adjudged 30 years before in Cuthbert v. Peacock, 2 Vern. 593.

by the maxims or practice of the court, the instrument 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; and this seems to have been the true reason of the decision in Brown v. Selwyn. 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 dehors and 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, primâ facie intended, is last.

PART III.

Double Legacies.

Where the same thing is given to different persons Double legacies

by the same inby the same instrument, the decisions must neces- strument. sarily turn wholly upon construction. And though the rule of construction is differently stated by very high authorities (1), some considering the last bequest as revoking the first, others regarding both as co-operating to effect a joint-tenancy, and others again regarding them as rendering each other void for uncertainty; yet I conceive, that, which ever 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 legacies to the same person by different By different ininstruments, in which the rule of construing the struments. bequests accumulative, seems to rest upon a slight foundation", and to be easily repelled by internal

- James v. Semens, 2 H. Bl. 213,

(1) See the opinions on this point collected in the margin of th English Plowden, 541, and see P. 430 of this book, in the pote.

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