Pole v. Lord Somers, was before Druce v. Dennison, but I have chosen to treat of it out of the order of time, because I con* [ 43 ] sider that if it had occurred after the case of Druce *v. Dennison, *[ 44 ] though it would not have received a different decision, it would have stood upon a wider basis, since it would have been established upon the external evidence which was offered, as well as upon the internal testimony furnished by the context of the will; and that although, as will be shown, the case was somewhat stronger in its circumstances than either Pulteney v. Lord Darlington, or Druce v. Dennison, yet the chancellor seemed clearly, in pronouncing his judgment in Druce v. Dennison, to regard the case of Pole v. Lord Somers, as included in the principle on which he decided in favour of the admissibility of the collateral evidence in Druce v. Dennison. In Druce v. Dennison, the testator might, whenever he pleased, have acquired the ownership of that property of his wife, which his will was construed to affect; but in Pole v. Lord Somers, the property was not placed within his reach, being bound by his marriage settlement in favour of his children. The inquisitive student will find the last mentioned case interesting, both as compleating this head of equitable doctrine, in respect to the admissibility of parol evidence, in order to raise a case of election, and as conducting him by an easy transition from the question as it arises upon cases of election, to the consideration of it under the important head of satis faction, of which, it affords a very good illustration. By the settlement in Pole v. Lord Somers, the fortune of the wife, which consisted of monies in several funds, was agreed to be laid out in the purchase of lands, to be settled upon the husband and wife, in succession, for their lives, with remainder to and among their children, as tenants in common. Part of this property was accordingly laid out, after the marriage, in the purchase of the manor of C ; other part was invested in the 4 per cents, in the names of the trustees, and the remainder was received by R. P. the husband, and mixed by him with his own money. R. P. afterwards, by his will, made provision for his children, by appropriating certain sums of money to each of them above the amount of what they would have been respectively entitled to under the settlement, and directed their maintenance and education, during their minorities, to be taken out of the *whole pro-. duce of his real and personal estate. He then empowered his executors to sell, if they should think proper, his chambers in the Temple, (which he had given to his eldest son in a former part of his will) and also, if necessary, the manor of C. and to apply the produce during his eldest son's minority, to any use for his benefit; and he empowered them also, to lay out any part of the respective fortunes of his younger sons for their use and benefit; and. all the residue of his estate and effects, both real and personal, after payment of his debts and legacies, he bequeathed to his eldest son. Among the papers of the testator was found a schedule or estimate of the state of his personal property, carried down to a period long posterior to the date of his will; and it was insisted, on behalf of the eldest son, that, as the manor of C. purchased with part of the trust-property, was specifically given to him, and as the amount of the pecuniary legacies could not be answered out of the assets, without the application of the trust-funds, and was calculated upon the property in the schedule, which appeared to comprise the testator's wife's fortune, as well that part of it which had been received by him, and mixed with his own property, as that which had been invested in the 4-per cents, the testator must be regarded as meaning › to dispose of his wife's property as well as his own. Now the rule being this, that he who claims a benefit under a will can claim no benefit in opposition to it, but is put to his election either to renounce what the will gives to him, or to take it upon the terms of acquiescing in all the other dispositions of the will, even where they affect his own claims or rights, it was very clear, that as to the manor of C. there being an express disposition, it was not competent to any of the younger children as legatees to dispute the exclusive title of the eldest son to that portion of the settled property, consistently with their acceptance of the provisions made for themselves by the same will. So far, therefore, it was a clear case of election, not raised upon the construction of words or parol evidence, but upon the unambiguous declarations of the testator. And it being also a rule of equity, that where there is nothing to raise a contrary presumption, a legacy given by a debtor to *his creditor, if equal to or greater than the debt, shall be presumed to be given in satisfaction thereof; inasmuch as the testator in this case had made himself a debtor to his children, by receiving a part of the settled money, and mixing it with his own, he was considered as paying that *[45] debt by the provisions made for them by his will, and therefore, as to that part of the property in question, the circumstances raised a case of satisfaction, and not of election. With respect, however, to that part of the settled money which remained vested in the funds, in the names of the trustees, the doctrine of satisfaction did not apply; and whether it was a case of election or not, so as to pass it with the residue to the residuary legatee, unless the younger children were content to renounce their claims under the will for the sake of their provision under the settlement, (there being no positive expressions to decide that question) depended upon the constructive operation of the will: and upon this head of inquiry arose the great question-whether the above-mentioned schedule, or statement of property, should be received in evidence to explain the testator's intention. To the admission of such testimony, the mind of the present Chancellor seemed at that time extremely adverse; and Pulteney v. Lord Darlington, being then pressed upon him, he made an oblique concession to its authority, regarding it as a case in which the will itself afforded a ground for inferring the intention imputed to the testator, without endangering the administration of justice, by wandering into collateral reasonings, and appreciating parol testimony, where there existed no necessity for its introduction. He strongly at that time dissented from the judges, in Pulteney v. Lord Darlington, (who seemed to think that such parol and extrinsic evidence, when admitted to raise a case of election, had not the effect of explaining a will) since it was certainly admitted for the sake of forcing the sense of words and phrases beyond their proper signification. So far, therefore, and only so far as the decision of the case of Pulteney v. Lord Darlington could be regarded, as resting upon the manifestation of intention afforded by the context of the will, its authority was recognised by the decree *in Pole v. Lord Somers. Upon the prin ciple of construing the will by the whole of its context, and the plan of the dispositions, the Chancellor thought the testator evidently designed to treat the property, whether settled or not, altogether as his own, and that, therefore, the residuary devise to his eldest son comprised all the different descriptions of the trustproperty, as well his wife's as his own, and the decision of Pole v. Lord Somers, was grounded on this internal evidence, without adverting to the extrinsic evidence offered in the case, but which, as we have seen, under similar circumstances, has since 1 been decided to be admissible by the decree of Lord Eldon in Druce v. Dennison, the case which received the latest fruit of his judgment. We will shortly consider this point with reference to the cases of satisfaction (15) as to which, that of Hinchcliffe v. Hinchcliffe, (d) (d) 3 Vez. jun. 516. their true, legal, and distinct senses, the terms SATISFAC (15) This word, from its frequent and too vague adoption in courts An attempt of equity, seems to have introduced no small confusion of ideas, and I to explain in greatly 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 ANCE. 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 the desirable object of ascertaining some practicable 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 620%. 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 performance, and not as a satisfaction of the engagement. It is true, that in Wilcocks v. 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, in 3 P. Wms. 225, 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 satisfac * 1 P. Wms. 323. † 2 Vern. 558. See also Lee . D'Arnanda, 3 Atk. 419. TION and # [47] will afford us some useful lights. That case was recognised *and approved of as the point of its adjudication, by the pre tion; for as a satisfaction, it is very clear it could have only bound those* by whom the benefit was felt.f In cases of this class, wherein the intention is not 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 against double portions or provisions prevails + It 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 30,0007. 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 covenanter 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 man covenants to do an act, and he does that which may pro tanto be converted into a performance of his covenant, he shall be presumed in equity to have done it with that intention. Thus where one covenanted by his marriage settlement with the trustees to pay to them two several sums, amounting to 2000. to be laid out in land, to be settled to the uses of the marriage, and did not pay the same, but after having purchased an estate for 2150/. died intestate, without hav ing made any settlement of such estate, though it was strongly contend-' ed, that as the husband had covenanted to pay the money to the trustees, he could scarcely mean a performance when he purchased land himself, yet his honour declared, after admitting that if the case had been res integra, he should have thought the reasoning made use of entitled to great consideration, that the case was within the principle of Lechmere v. the Earl of Carlisle.¶ But it seems a settled rule, that to constitute a performance, the eventual benefit must correspond in time with the period at which the stipulated benefit was to take place: thus where a testator, being under a bond to leave 300l. to be paid in one month after his death, bequeath * The reporter, indeed, adds a query, whether, if the eldest son had died, as he might have done, 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. Vide Wilson, Pigott, 2 Vez. jun. 355. 2 Vez. jun. 409. Prince. Stebbing, Lechmere v. the Earl of Carlisle, 3 P. Wms. 227. |