4 Wend. 443 | N.Y. Sup. Ct. | 1830
By the Court,
This cause has already been twice before the court. At first it came up on a demurrer to the defendant’s third plea, (5 Cowen, 368.) That plea stated the execution of the bond, the provision in the will, the balance due on the bond, the payment of the $1600 and the cancelling the bond and mortgage, claiming the balance of $2400 to be set oft" against the plaintiff’s demand. The plea was held bad, both in form and substance, because a set off could not be pleaded under our statute; and if it could a bond which was cancelled could not be considered a subsisting demand which could be set off. Sutherland, justice, in giving the opinion of the court observes, that the provision in the will was not pleaded as a legacy; that although it is a general rule that a legacy given by a debtor to his creditor which is equal to or greater than the debt, shall be considered as a satisfaction of it; yet that courts have always seized upon any circumstances to repel the presumption that such was the intention of the testator; and that here was a running account; that the’ testatrix did not know the amount of the plaintiff’s" demand; that the plea was argumentative, and contained no issuable averment upon which a material question could have been presented for trial.
The cause was then referred to referees, who reported in favor of the plaintiff $470,90, and stated that they considered the legacy in the will as a satisfaction of all demands due from the testatrix to the plaintiff anterior to the date of the will, and no other ; the report being for what accrued after-wards, with interest after the death of the testatrix. On a motion to set aside this report, the facts in relation to this testamentary provision appeared different from what they
On the last trial, the witness who proved the conversation between the plaintiff and the testatrix, states only what passed before the malting the will. When urged to a settlement by the plaintiff, the testatrix says : “ You need not give yourself any trouble about that: at my death it will be done to your satisfaction.” The witness was probably not examined as to conversations subsequent to the making of the will.
It is laid down as a general rule on this subject, that a legacy given by a debtor to his creditor, which is equal to or greater than the debt, shall be considered as a satisfaction of it. (Toller, 336. 2 Fonblanque, 330.) This rule is admitted by all the cases; though all the courts seem to express great dissatisfaction with it, and endeavor to distinguish cases out of it, upon slight circumstances indicating an intention of the testator that the legatee shall have both the debt and the legacy; as where the will contains the words, “ after debts and legacies are paid, then I give” and words of similar import. (3 Atk. 68, 96.) If the legacy be less than the debt; if it is contingent; if the debt be unliquidated, &c.; if it be contracted after the legacy given, it is no satisfaction. The truth is, there are so many exceptions that the rule on this subject seems to be, that a legacy shall not be deemed a satisfaction of a pre-existing debt, unless it appears to have been the intention of the testator that it should so operate. These cases, therefore, depend on their own circumstances ; and when a legacy has been decreed to go in satisfaction of a debt, it must be grounded upon some evinence, or at least a strong presumption, that the testator did so intend it. A court of equity will carry into effect the intention of the testator, and therefore the intention is what controls. (Fonblanque, 332, and cases there cited.) Cranmer’s case, (2 Salk. 508,) exemplifies the rule On this subject. The testatrix owed Cranmer £50, and made a will, giving him a legacy of £500; she then borrowed £150 more and died. The master of the rolls held the legacy a payment of both debts; but Lord Chancellor Harcourt reversed the decree, saying that “ a man shall not be prevented by a court of equity from doing with his own as he pleases ; and when he says he gives a legacy, they cannot say he pays a debt.” “ Note,” says the reporter, “ in all these' cas
In the case of Strong v. Webster, (12 Mass. R. 391,) the plaintiff was permitted to recover a debt upon the general doctrine which has been above quoted; and the circumstances which made it an exception were, that the legacy was not as much as the debt, and the testator intended his debts and legacies should be paid., before the residuary legatees should take any thing. The same doctrine prevails in Pennsylvania, (13 Serge & Rawle 60.) In the case of Plume v. Plume, (7 Ves. 258,) a son who had carried on business under his father, with an intention to be remunerated at his father’s death by a provision in his favor, is not a creditor. This case recognizes the general doctrine. The intention there was drawn from the provisions of the will, and it was clear that the testator did not consider his son as a creditor. If therefore the provision in this will is to be considered a legacy in favor of the plaintiff, then the rule should be applied as referred to in the numerous cases on this subject, and recognized by this court when this question was considered on the pleadings, in 5 Cowen, 368. In that event, there are circumstances both ways. The legacy, if we so call, it, is much more than the debt, and therefore should extinguish it; but, on the other hand, the will directs the payment of the debts, and part of the demand accrued subsequent to the will.
There is a striking dissimilarity between this clause of the will and all the legacies given in it. In all of them, except this, the language is, “ I give and bequeath,” or, “ I give but the article in question contains no such words; it con
Thus far I have stated the conclusion which would naturally be drawn from the case as presented, with the exception" of Nancy McFarland’s testimony as to what passed between the plaintiff and the testatrix on this subject; Before she left home to make her last visit to New-York, the plaintiff was anxious to have a settlement and spoke to her on the subject; her answer I have .before quoted, but repeat it here;
There is another reason why the doctrine of extinguishment above referred to is not applicable here: the plaintiff was not a creditor of the testatrix; she speaks of him as her debtor ; there is no intimation that she owes him on balancing their respective demands; and in fact the plaintiff, and not the testatrix, was the debtor. All the cases referred to by counsel, and which I'have examined, are cases where the testator owed a liquidated debt to the legatee; many of them are cases of debts due to servants for wages, and a legacy superadded by the testator or testatrix by way of donation for their fidelity. In such cases the courts will not permit the legacy to be a payment of the debt, unless that intention appears by the fact of entire correspondence between the debt and legacy, or by extrinsic circumstances. But the relation of debtor and creditor must distinctly exist. Here, if any such relation existed at all, it was either mutual or the testatrix was the creditor.
My conclusion therefore is, that the plaintiff has no right to recover. Such was the decision of this court when the case was before us on its merits, (8 Cowen, 246;) and Woodworth, justice, speaking of this clause in the will,
A question was raised as to the competency of Nancy McFarland. It -is unnecessary to examine the question of interest. She was the plaintiff’s witness, and the defendant had a right to examine her to any relevant matter; the plaintiff cannot deny the competency of his own' witness. (2 Wendell, 483.)
New trial granted, costs to abide the event.