6 Pa. 13 | Pa. | 1847
I view this controversy, belonging as it does to equity, as if it stood on a bill for the legacy; and the question is, how would a chancellor treat it ? It is certain he would not admit parol evidence to control the will. Such is the principle of Tufnel v. Constable, 8 Simon, 69 ; and Doyle v. Blake, 2 Scho. & Lef. 240. Nor to raise, but only to rebut an equity; and such ivas the rule in Fordyce v. Willes, 3 Br. C. C. 377; Freemantle v. Banks, 5 Ves. 79; and Monck v. Lord Monck, 1 Ball & Beatty, 298. But it certainly may be used by an executor, provided for by a legacy, to rebut the equity of the next of kin; or by the next of kin, to repel the rebutting evidence of the executor. A list of authorities for this, which it would be tedious to repeat, is to be found in the notes to Stephenson v. Heathcote, 1 Eden’s Rep. 40, 41. In like manner, parol evidence was received in Monck v. Lord Monck, to' fortify a presumption of ademption. For these purposes, it is settled that parol evidence of the testator’s declarations, before, at, and after the publication of the will, is competent; and how stands the case on this record ? We are on a plea to an action on a bond, it is true; but if the debt has been equitably discharged, a chancellor would enjoin the executors as readily as he would decree against them on a bill for the legacy. Indeed the case of Aston v. Pye, 5 Ves. 350, in note, was an action at law on a note endorsed, “ Henry Pye pays no interest, nor shall I even take tli