tisfaction, according to the maxim, Quod debitor non præsumitur donare, a court of equity, supplying a defect in words, decrees the sum to be in satisfaction. Thus, a man being bound for £10 yearly to his daughter, gave her at her marriage a portion of £200. Decreed, That the annuity was included in the portion.* But where a man leaves a legacy to his creditor, this cannot be constructed as satisfaction; for in that case it would not be a legacy or donation.

Anthony Murray, anno 1738, made a settlement of his estate upon John and Thomas Belsches, taking them bound, among other legacies, to pay £300 sterling to their sister Emilia, at her marriage. Anthony altered this settlement, anno 1740, in favour of his heir-at-law; obliging him, however, to pay the legacies contained in the former settlement. In the year 1744, Anthony executed a bond to Emilia upon the narrative of love and favour, binding himself to pay to her in liferent, and to her children nati et nascituri in fee, at the first term after his decease, the sum of £1,200 sterling. The doubt was, whether both sums were due to Emilia, or only the latter. It was admitted, that both sums would be due at common law, which looks no farther than the words. But that this was not the intention of the granter, was urged, from the following circumstance, That in the bond for the £1,200, there is no mention of the former legacy, nor of any legacy; which clearly shews, that Anthony had forgot the first legacy, and consequently, that he intended no more for Emilia but £1,200 in whole. Which was accordingly decreed.†

• Tothill's Reports, 78.

+ 22d December 1752, Emilia Belsches and her husband contra Sir Patrick Murray.

ART. II. Where the words are short of will.

BETWEEN this article and a following section, intitled, Implied will, there is much affinity; but as the blending together things really distinct, tends to confusion of ideas, I have brought under the present article, acts of will that are indeed expressed, but so imperfectly as to leave room for doubt, whether the will does not go farther than is spoken out; leaving to the section Implied will, articles essential to the deed or covenant, that must have made a part of the maker's will, and yet are totally omitted to be expressed.

In England, where estates are settled by will, it is the practice to make up any defect in the words, in order to support the will of the devisor. But here it is essential that the will be clearly ascertained, in order that the court may run no hazard of overturning the will, instead of supporting it. An executor being named with the usual power of managing the whole money and effects of the deceased, the following clause subjoined, " And I hereby debar and se"clude all others from any right or interest in my "said executry," was held by the court to import an universal legacy in favour of the executor.* A man having two nephews who were his heirs-at-law, made a settlement in their favour, dividing his farms between them, intending probably an equal division. A farm was left out by the omission of the clerk, which the scrivener swore was intended for the plaintiff. The

1st Feb. 1739, John Beizly contra Gabriel Napier

court refused to amend the mistake, leaving the farm to descend as ab intestato.* For here it was not clear, that the maker of the deed intended an equal division.

66

66

There being an entail of the estate of Cromarty to heirs-male, the Earl, in his contract of marriage, anno 1724, became bound, in case of children of the marriage who should succeed to and enjoy the estate, to infeft his lady in a liferent locality of forty chalders victual; and in case of no children to succeed to and enjoy the estate, he became bound to make the said locality fifty chalders. The following clause is added: "That if, at the dissolution of the marriage, there should be children succeeding to and enjoying the estate, but who should afterward de"cease during the life of his said spouse, she, from "that period, should be entitled to fifty chalders, as "if the said children had not existed." The Earl being forfeited in the year 1745, having issue both male and female, a claim was entered by his lady for the jointure of fifty chalders, to take effect after her husband's death. Objected by his Majesty's Advocate, That she is entitled to forty chalders only, there being sons of the marriage, who, but for the forfeiture, would have succeeded to the estate. Here evidently the words fall short of intention; for as the claimant would have had a jointure of fifty chalders if the Earl's brother or nephew had succeeded to the estate, there can be no doubt that had the event of forfeiture been foreseen, the Earl would have given her at least fifty chalders. The claim accordingly was sustained. †

1. Vernon, 37.

+ 26th January 1761, Countess of Cromarty contra the Crown.

Walter Riddel, in his contract of marriage 1694, became bound to settle his whole land-estate on the heir-male of the marriage. In the year 1727, purposing to fulfil that obligation, he disponed to his eldest son the lands therein specified, burdened with his debts, reserving to himself an annnity of 2000 merks only. The lands of Stewarton, which came under the said obligation, were left out of the disposition 1727. But that they were omitted by oversight, without intention, was made evident from the following circumstances: first, That the title-deeds of that farm were delivered to the son along with the other title-deeds; second, That he took possession of the whole; third, That a subsequent deed by the father anno 1733, proceeds upon this narrative, “That "the whole lands belonging to him were conveyed "to his son by the disposition 1727." Many years after, the father, having discovered that Stewarton was not mentioned in the said disposition, ventured to convey that farm to his second son, who was otherwise competently provided. It was not pretended, that Stewarton was actually conveyed to the eldest son, which could not be but in a formal disposition; but as there was clear evidence of the father's obligation to convey it with the rest of the estate, which obligation he was still bound to fulfil, the court judged this a sufficient foundation for voiding the gratuitous disposition to the second son.*

In the cases mentioned, writing is necessary as evidence only: it is of no consequence what words be used in the nomination of an heir or of an executor, provided the will of the maker be ascertained. But in several transactions, writing, beside the evidence January 4, 1766, Riddel contra Riddel of Glenriddel.

it affords, is an indispensable solemnity. Land cannot be conveyed without a procuratory or a precept, which must be in a set form of words. A man may lend his money upon a verbal paction, but he cannot proceed directly to execution, unless he have a formal bond containing a clause of registration, authorising execution. Neither can such a bond be conveyed to a purchaser, otherwise than by a formal assignment in writing. Here a new speculation arises, What power a court of equity hath over a writing of this kind? In this writing, no less than in others, the words may happen erroneously to be more extensive than the will of the granter; or they may happen to be more limited.

Must the words in all

Far from it. Though

cases be the sovereign rule? in certain transactions writ is an essential solemnity, it follows not, that the words solely must be regarded, without relation to will; for to bind a man by words where he hath not interposed his will, is contrary to the most obvious principles of justice. Hence it necessarily follows, that a deed of this kind may, by a court of equity, be limited to a narrower effect than the words naturally import; and that this ought to be done, where, from the context, from the intendment of the granter, or from other convincing circumstances, it can be certainly gathered, that the words, by mistake, go beyond the will. But though in ordinary cases, such as those above mentioned, the defect of words may be supplied, and force given to will, supposing it clearly ascertained; yet this cannot be done in a deed to which writ is essential. The reason is, that to make writ an essential solemnity, is, in other words, to declare, that action must not be sustained, except as far as authorised by writ. How