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Somen, Kid Druce v. Dennison, and upon this ground the case of Hinchcliffe x,. Hinchcliffe was acquiesced in by the present Chancellor.
Upon a similar doctrine He appears also to have assented to the judgment in Fonnereauv. Fonnereau, (above cited) and the cases of that class, in which the state of the property of the testator was looked at in order to give the proper application to the bequeathing words, where the will proved that something was meant to be given, but the description of the subject only was unintelligible. But in Druce v. Dennison the court was called upon to admit the production of extrinsic testimony for a purpose beyond that for which it was produced in Hinchcliffe v. Hinchcliffe, r. <?. not merely to show what the testator meant to comprise under the dispositions of his will, but to support the inference that he designed to embrace under the words ' my personal estate,' property not strictly his own, for the purpose of putting the persons interested in the settled property to their election. We have seen, however, that, notwithstanding this distinguishing circumstance in the case of Druce v. Dcnnison, Lord Eldon * [ 55 ] submitted to the authority of Pulteney v. Lord Darlington, *and founded his deciuoo of the case of Druce v. Dennison upon the principle of admitting extrinsic testimony to raise a case of election^ 17) But as. Ch. J. De Grey, Baron Eyre, and Lord Alvanley, declared it as their opinion, that to admit evidence for such a purpose was not to admit it to explain, i. e. alter or contradict • will, (for such seemed to be their meaning by the word explain) the opinions of these judges, and the present chancellor, as to the abstract point, appear to agree on the grneral proposition, that extrinsic testimony ought not to be received for such an object. s
(17) In the eases of Wright v. Rutter, 2 Vez. jun. 673, *nd Rutter v. M'Lean, 4 Vez. jun. 531, the husband had assigned the wife's legacies or equitable choses in action for a pretended valuable consideration, with a view to make it his own property, and under this impression, though a mistaken one, disposed of all her property by will, making thereout some dispositions in his wife's favour; the wife was put to her election, the intention being looked upon as not less clearly shown than if promulged;in express terms
Admissibility of Extrinsic Evidence to rebut Presumptions.
THE rule prevailing in courts both of law and equity, that external evidence may be received to Rebut Presumptions, submits the operation of written instruments, more extensively than any principle hitherto noticed, to the controul of extrinsic circumstances.^) In courts of equity, more especially, the latitude of this allowance has been productive of important consequences, and critical discussion. The genius of the common law inclines it to generality and certainty, and even its presumptions are in some cases too inflexible to be amenable to proof. But equity carries a milder port, and, as its rules are framed more for particular than general *relief, allows all its presumptions to be * [ 56 ] repelled by opposite testimony, and by testimony of every kind. Thus it is a settled rule of presumption in equity, (borrowed from of$\t K the civil law) that if a father gives a legacy to a child, and after- sumption «
wards advances the like sum to the same child, such advance- P,ainst
meat operates as an ademption of the legacy.(18) This pre-
(g) Lamplugh «• Lamplugh, 1 P. Wins. 112.
(18) Which proceeds, says Lord Thurlow, from a view which th» court takes of a legacy as a portion, and which therefore carries with it those qualities, and is considered as a deliberate distribution by a parent among his children.
(19) The cases of a natural child, yde Grave v. Lord Salisbury, 1 Bro. C. R. 425; and of uncle and niece, vide Shudall». JekylL 3 Alk. 516, are said t» be out of the rule.
ciple upon which the presumption is founded in the case of a general legacy by a lawful parent) 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 unadeenied. Of the pre- It is also a rule of presumption well established in courts of the'satisfac- e<luit)'' tnat where a legacy is given by a debtor to his creditor, tionof a debt exceeding or equal to the amount of the debt, it is a satisfaction to an "equal of tne ^ht. This rule of presumption, though 'established, 19 or greater a- met by another, viz. that every bequtst is prima facie a benevolence ;(20) on which ground the courts have of late viewed it with great jealousy, and have shown 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.(2l) But notwithstanding the strong dispasition of the courts to bound the application of this rule of presumption, parol evidence has been refused b) great chancellors to be admitted to take a case out of its operation. Thus in fowler v. Fowler,(£) Lord Talbot, after
(*) 3 P. Wms. 353.
(20) See the remarks of Lord Chancellor Talbot, in Fowler v. Fowler, 2 P. Wms. 353, 5th edit, and of Lord Hardwicke, in Richardson v. Greese, 3 Atk. 68, who there says, that the maxim of debitor non prtesumitur donare would not hold, if it wer.e to be reconsidered. And again, that "legacies naturally imply a bounty," and observe what was remarked by Lord King, in reversing the decree of the Master of the Rull* in Chauncey's case, 1 P. Wms. 410. Lord Alvanley called it a very absurd rule, 3 Vez. jun. 466.
(21) 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 payment of debts is particularly mentioned in the will, 1 P.,Wms. 409, Chauncey's oose.—If the legacy is contingent, 2 Atk. 491, Spinks v Robins.—-Postponement of the period of the payment of the legacy, 3 Atk. 96, Clarke v. Scwell. 2 Atk. 300, N;cholls v. Judson.—Uncertainty as to duration or commencement, 2 Vez. 635, Matthews v. Matthews.—The subject of the debt and legacy not beini* ejusdctn generis, 7BrofP. C. 12, Broughton v. Errington. 2 P. Wms. 614, Eastwood v. Vincke.—Where the debt is incurred after the date of the will, S.dk. 508, Cranmer's ease. 2 P. Wms. 341, Thomas v. Bcnn. tt. 3 P. Wms. 354, Fowler*. Fowler.—Whore the legacy' is to a servant, 3 Atk. 69, per Lord Hard wicke. ,
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,(22) parol evidence had been allowed, in order to show 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 shown 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.
Considering this marked disapprobation of the rule of presuming a legacy to a creditor, where it exceeds or is equal to the sum owed, to be a satisfaction of the debt, and that the courts have, in general, shown a more favourable disposition towards the rule, treated of just above, of presuming against double portions; it is not very easy to account for the contrariety of decisions, with respect to the admissibility of parol evidence in these two cases in opposition to the presumption; for we have seen, that the presumption of satisfaction in the case of double provisions for a child, might be met by all soils of circumstantial and extrinsic evidence,(23) whereas, *it appears, that great chancel
(/) 3 Atk. 60.
(22) This had been positively so adjudged 30 years before in Cutltbert v. Peacock, 2 Vern. 593.
(23) Lord Hardwicke observed, in the case of Clark v. Sewell, 3 Atk. 98, that he agreed that the cases of satisfaction of portions had gope further; for where both the provisions move from the father to the same persons,'and for the same purposes, this court, which always leans against incumbering estates twice over, will overlook little circumstances of time, &c. In Sparks v. Cator, 3 Vez. jun. 530, it was said, that slight circumstances of difference, which would repel the presumption of satisfaction as between strangers, are not sufficient in the case between parent and child. And in Hinchcliffe c. Hinchclifie, 3 Ve2. jun. 516, portions for children by the will of a parent, it was said, should be presumed a satisfaction of a prior provision, unless clearly not so intended. This presumption is not rebutted by slight circumstances, but the court will lay hold of any little circumstance to jft out of th« mlo, Hiat a dob* is satisfied by an equal legacy.
Of the distinction between presumptions sn<l positive rules of contraction.
ltirs, though concurring in the common disapprobation of the rule of presumption in respect to legacies being a satisfaction of debts, have yet refused such evidence when offered to take a case out of it.
Whether the rule is a rule merely of presumption or of settled and fixed construction, seems to be the true question upon which these decisions turn; for, where a positive rule of construction is established 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 shown 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 disconnected with any rule of construction, since the will is not construed, but, pro tanto, revoked, and the presumption arises entirely out of an act of the testator dehors and posterior to the wil :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, prima facie intended, is stifled. The case of double portions obviously falls within the well settled doctrine of Brady 'v. Cubit,(ffi) •that presumptions may be rebutted by every sort of evidence. And is it not a presumption, though operating by construction, where a legacy to a creditor, to an equal amount with the debt, is construed a satisfaction ? And if it is a presumption, is it less within the doctrine in Brady v. Cubit, because it operates by imposing a construction? The answer must wait the decisionsof the courts. Of double le- ^ difference is plainly discernible, in respect to the propriety pacies, wlie- of admitting parol evidence, between the cases lust adverted to, ta6iveCorsubl andtnat wherein tne same thing is given to different persons by