tee from the testator.81 The following extract from the opinion of Lord Eldon, Chancellor, in the case last cited, contains the best commentary upon the English cases upon this point. "The Lord Chancellor stated Chancey's case,82 Fowler u. Fowler,83 be•fore Lord Talbot; Hobbs v. Tate; 8 a bequest of £50 to a servant, to whom wages were due to the amount of £98; and the legacy was held not a satisfaction, on account of extraordinary services; not what the servant was hired for. Duffer v. Chalcroft,85 Stamer v. Wade,86 Shudal v. Jekyll, Richardson v. Greese,88 Debeze v. Mann.89 The Lord Chancellor stated the last case from his own note, and the cases before Lord Hardwicke, from the notes of Mr. Joddrell; Mr. Browne (the king's counsel); and Lord Hardwicke's manuscript notes; by which the printed report of Richardson v. Greese,so appeared to be correct; Lord Hardwicke expressing his opinion, that, by the penning of the will, there was no satisfaction; and laying considerable stress upon the words, "after debts and legacies are paid." His lordship then proceeded thus: 91 All the cases authorize the admission of evidence, which is clearly to be admitted in this instance; and I am very sorry to add, that I think myself fully justified by all the cases in saying, that evidence has not only been admitted, but at least as much effect has been given to it as can be said fairly to belong to it. I do not except from this observation, even Lord Thurlow himself, in the case of Debeze "This account of the beginning of the judgment ex relatione." v. Mann; 92 for in that case, his lordship held this, upon the whole, that though the testator had given the legatee £1,000 upon marriage, and afterwards in his life, £600 more, in all £240 more than the legacy, yet the legacy was to be paid; construing the expression, that there would be more hereafter, as his life was a bad one, as indicating an intention to give something more at his death; and therefore, that the gift of £600 more between the marriage and his death did not satisfy that declaration. I think, I may venture to say, a determination, taking the other course, might probably have been justified: the testator, alluding to his death in no other terms than by saying, his life was a bad one. That case is decisive to show, that evidence must be admitted; and the length to which the court will carry it. But, looking at the parol evidence in this case, it is infinitely stronger than in any of the cases in which evidence has had effect; provided it is believed; and there is great hazard, I admit, of deciding upon what is not true; but I have no right to reject this evidence as false. The first part of this declaration brings this very much to the case I have cited from Mr. Browne's 93 manuscripts; that the legacy was for her attention to him in sickness, and the wages for service. The subsequent part of the evidence is an express declaration as to what he owed her for wages, that he intended to put her money out at interest. It is true, as has been observed by Mr. Romilly, he might have reduced the legacy: but the case, if put upon that, cannot be reconciled with what was done in the case upon Sir Joseph Jekyll's will,94 and the other cases." 95 Sir John Leach held,9 that a provision in a will is prima facie to be regarded as 92 2 Bro. C. C. 165, 519. Stated also by the Lord Chancellor from his own note. 93 The king's counsel, in the time of Lord Hardwicke. "Shudal v. Jekyll, 2 Atk. 516. 95 Richardson v. Greese, 3 Atk. 65. * Weall v. Rice, 2 Russ. & My. 267, 268. a satisfaction of any prior provision by way of settlement, and that slight differences in the provisions, such as leave them substantially of the same nature, will not rebut the presumption. But that this presumption may be repelled, or fortified, by intrinsic evidence from the nature of the two provisions, or by extrinsic evidence of the intention of the testator, at the time of making the will. The opinion of this learned judge, in an earlier case, is commonly regarded as giving the rule which should prevail upon this question. "One primary principle is, that evidence is not admissible to contradict a written instrument. In some cases courts of equity raise a presumption against the apparent intention of the testamentary instrument, and there they will receive evidence to repel that presumption; for the effect of such testimony is not to show, that the testator did not mean what he has said, but on the contrary, to prove that he did mean what he has expressed." 98 But it seems to us that if extrinsic evidence is admissible at all, in regard to the intention of the testator, upon a given point, it should be received generally, and not restricted to a given state of the will, or of its construction. And the truth probably is, that so far as the rule, that a legacy is to be regarded as payment of, or in satisfaction of an existing debt, is founded upon a prima facie presumption of law, it is, upon general principles, liable to be rebutted by extrinsic evidence of a contrary intention by the testator. And so far as the result depends upon the words of the will, or the construction which the courts give such words, it is not to be explained, or contradicted, by extrinsic evidence. The American rule upon the point of receiving extrinsic evidence, in regard to the intention of the testator in such cases, is not very clearly defined. But 97 Hurst r. Beach, 5 Mad. 351. 98 2 Wms. Executors, 1173; Hall v. Hill, 1 Dru. & War. 94, 113, 114; Lee v. Pain, 4 Hare, 201, 216; Palmer v. Newell, 20 Beav. 32. 99 Opinion of Wigram, Vice-Chancellor, in Lee v. Pain, 4 Hare, 201, 216; Plunkett v. Lewis, 3 Hare, 316. there has been manifested a strong tendency to deny, or evade, the presumption itself. In Massachusetts,100 it is said, "that, prima facie at least, whatever is given in a will is to be intended as a bounty;" and that when a testator says that he makes a gift, it is not to be presumed that he intends thereby to pay a debt, unless the circumstances lead to that conclusion. And in New York,101 it is declared, that a legacy is not to be taken as a satisfaction of a debt, unless such appears to have been the intention of the testator. And such seems to be the inclination of the American courts upon this question. And it being held there is no such presumption to rebut, it would seem questionable, whether, upon strict principle, extrinsic evidence could be received. But the practice and the inclination of the courts in this country would seem to be in favor of receiving such evidence.102 But in South Carolina, there is a decision to the contrary.108 We shall have occasion to recur to this subject, under another head. 48. And as extrinsic evidence is receivable, to rebut prima facie presumptions of trust, it may equally be received to countervail the effect of such evidence.104 In the case last referred to, the law is thus laid down, by one of the ablest equity judges of modern times, Sir James Wigram: "In such cases, the evidence is not admitted on either side for the purpose of proving, in the 100 Strong v. Williams, 12 Mass. 391; Smith v. Smith, 1 Allen, 129. 101 Clark v. Bogardus, 12 Wend. 67; s. c. 2 Edw. Ch. 387; Ricketts v. Livingston, 2 Johns. Cas. 98. 102 Fitch v. Peckham, 16 Vt. 150; Williams v. Crary, 5 Cow. 368; Zeigler v. Eckert, 6 Barr, 13. See Edelen v. Dent, 2 Gill & Johns. 185, where the general rule is elaborately discussed. 103 Owens v. Simpson, 5 Rich. Eq. 405. 104 Kirk v. Eddowes, 3 Hare, 509, 517. See also, White v. Williams, 3 Vesey & B. 72. In a very late case, Parmiter v. Parmiter, 1 Johns. & H. 1, parol evidence, to show the intention of the testator that a legacy to his son should operate as a satisfaction of a debt due from him to his son's wife, was held inadmissible. first instance, with what intent either writing was made, but for the purpose only of ascertaining whether the presumption which the law has raised be well or ill founded." The learned judge here points out a very important distinction, between the admission of extrinsic evidence to show whether an advance was intended to adeem a legacy or not, and the reception of such evidence to show that the testator revoked a legacy. The distinction is very obvious, and one not always sufficiently attended to by writers of acknowledged credit, as here suggested. It is much the same distinction which exists between showing the payment of a note or bill by parol evidence, and showing, by similar evidence, facts tending to contradict or qualify the contract in its inception.104 49. But such evidence cannot be received, in support of the legal presumption, unless it is first attempted to be impeached, as it would be both illegal and unnecessary; nor can it be received to create a presumption not raised by the law, as this would be to contradict the legal effect of the written instrument.105 50. Extrinsic evidence has been admitted to show, that where the testator, by his will, gives all his real and personal estate, equally, among his children, and then provides that the executor shall expend £300 in putting out his son as an apprentice, and the father afterwards expended £200 in putting out his son, as a clerk in the navy, that he intended it as an advancement towards the £300 named in his will, he having died without revoking his will in that respect. And the testator's declarations that such was his intention are competent to be received.106 And where a legacy is given to one during life, and in the event, 105 Hall v. Hill, 1 D. & War. 94; Lee v. Pain, 4 Hare, 216; Palmer v. Newell, 20 Beavan, 39. 108 Rosewell v. Bennett, 3 Atk. 77. See also, the following cases, where evidence of intention was received. Chapman v. Salt, 2 Vernon, 646; Pile v. Pile, 1 Ch. R. 199; Ellison v. Cookson, 2 Br. C. C. 307; s. c. 3 id. 61, and other cases in note to 3 Atk. 77. : |