In re BRIDLE.

(Court of Common Pleas Division, 1879. 4 C. P. D. 336.)

Petition by Louisa Bridle, asking for the payment out of court to her of £200.

John Bridle died in 1877. By his will, made in 1872, he bequeathed to the petitioner the mortgage of £200 which he had secured to him on a mortgage of premises in Melcombe Regis. The petitioner, against the objection of the executors of John Bridle's will and of the residuary legatees thereunder, introduced evidence that in 1873, the mortgage above mentioned was paid off; that John Bridle paid the mortgage money into the bank of Williams & Co.; that he had a regular account at that bank; that he did not pay this money into his general account, but had it entered in his name to a separate account, which he opened with the bank for that purpose; that he received a separate pass-book; that he handed this pass-book into the custody of the petitioner, stating to her, when he did so, that it was the money he had received from the mortgage, and that she was to keep the book, as he had willed the money to her, for her to receive it after his death, and stating that it would show that the money was for her, and would do away with the necessity of altering his will in consequence of the mortgage being paid off; and that the £200 remained intact in the bank down to the death of John Bridle, he only drawing the interest from time to time, and the petitioner retaining possession of the pass-book. This evidence was uncontradicted. Williams & Co. paid the money into a post-office savings bank in the name of the registrar of the County Court to await the decision of the court.

The judge ordered the costs of all parties to be paid out of the £200 and the balance to be paid to the petitioner. The executors and residuary legatees appealed.

DENMAN, J.2 The testator by his will bequeathed to the petitioner "the mortgage debt of £200 which he had secured to him on a mortgage of premises in King street, Melcombe Regis, belonging to William Hardy." It is impossible to read those words without seeing that the obvious intention of the testator was to give her the mortgage itself. Has there, then, been an ademption? That depends upon the rule stated by Lord Hardwicke, C., in Humphreys v. Humphreys, 2 Cox, C. C. 184, where he said that "the only rule to be adhered to was, to see whether the subject of the specific bequest remained in specie at the time of the testator's death, for, if it did not, then there must be an end of the bequest; and that the idea of discussing what were the particular motives and intention of the testator in each case in destroying the subject of the bequest, would be productive of endless uncertainty and confusion." In the case of a specific be

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62 Parts only of the opinions are given.

quest of a thing which has ceased to exist during the lifetime of the testator, the legacy is adeemed.

LINDLEY, J. I am of the same opinion. The first question here is what was bequeathed to Louisa Bridle. It is a bequest of a mortgage -a specific legacy. The only other question is, where is it? It is not to be found; and there is an end of it. * * * And see the judgment of Lord Thurlow in Stanley v. Potter, 2 Cox, C. C. 180, where it was held that a bequest of a debt is adeemed by the debt being paid to the testator in his lifetime, whether the payment be compulsory or voluntary, or whether the sum be expressed in the bequest or the debt bequeathed generally.63 For these reasons, I am of opinion that the petitioner is not entitled to the £200, and the judgment of the County Court judge must be reversed, with costs. Judgment reversed."

COWPER v. SCOTT.

(High Court of Chancery, 1731. 3 P. Wms. 119.)

The last point of the case65 was, the testator Bedel had devised all his personal estate in sevenths, viz., one seventh to each child; after which his son, being the eldest child, died in the testator's lifetime, and then the testator died, by which means the son's seventh became distributable according to the statute, the executors being declared by the will to be but trustees; and four of the testator's daughters being married, and having been advanced by their father in his lifetime, it

63 See Wyckoff v. Perrine's Ex'rs, 37 N. J. Eq. 118 (1883); Succession of Batchelor, 48 La. Ann. 278, 19 South. 283 (1896); Rogers v. Rogers, 67 S. C. 168, 45 S. E. 176, 100 Am. St. Rep. 721 (1903); Tanton v. Keller, 167 Ill. 129, 47 N. E. 376 (1897). But see In re Bradley's Will, 73 Vt. 253, 50 Atl. 1072 (1901).

"The bequest was of certain notes [for $1,200] secured by mortgage of land. The testator surrendered those notes in his lifetime, and took a reconveyance of the property for which they had been given. He afterwards sold the same property to another and took notes [for $600] for it that were unpaid when he died. We think the legacy had been adeemed and that the executor constitute a part of the estate to be distributThe legacy was specific and the subject of it had been disposed of by the testator in his lifetime." Haskell, J., in Tolman v. Tolman, 85 Me. 317, 320, 321, 27 Atl. 184, 185 (1893). But that taking renewal notes will not be an ademption of notes bequeathed, and the new notes will pass, was held in Ford v. Ford, 23 N. H. 212 (1851).

notes now held by the ed among the heirs.

64 There is a broad distinction between the gift of a debt as a debt and the sum of money produced when the debt has been recovered and has ceased to be a debt. In the one instance the legacy is specific, and the collection of the debt in the testator's lifetime will adeem the legacy. On the other hand, the gift extends to and includes the fund in the altered state, because, being a gift of the fund, the thing given will pass, though it be not in the precise state it was when the will was executed." McSherry, J., in Littig v. Hance, 81 Md. 416, 432, 32 Atl. 343 (1895). Compare Georgia Infirmary, etc., v. Jones (C. C.) 37 Fed. 750 (1889).

65 The other points in the case are omitted.

was therefore contended, that this seventh, which was the son's share, becoming distributable according to the statute, the four sisters, who had been advanced by their father in his lifetime, ought to bring their portions into hotchpot; for if the children are within the statute as to one clause, they must be within it as to every clause thereof.

Sed curia [Sir JOSEPH JEKYLL, M. R.] contra. Though this seventh part devised to the son, did, by his dying in his father's lifetime, for necessity's sake become distributable according to the statute, yet I take this not to be in strictness within the same, because here is an executor, and therefore the testator cannot be said to have died intestate, though it is true the executor, being but a trustee, is, by an equitable construction, and by means of an accident that has happened since the making of the will, a trustee for the next of kin according to the statute. However, this is (as I said) merely through necessity, and because no one else can take; but as to children who were advanced in their father's lifetime, bringing such their advancements into hotchpot, that is to be only in the case of a total intestacy, or where the whole personal estate, not where part only, and that perhaps but a very small part (as here), becomes distributable; neither would it be reasonable for the children so to do. And it is observable that Mr. Lutwyche, who was of counsel with the deceased daughter's husband, and whose client's interest it was to have the advancements of the four married daughters brought into hotchpot, gave up the point, saying it had been so adjudged in Sir George Wheeler's Case.""

HOLT v. LIBBY.

(Supreme Judicial Court of Maine, 1888. 80 Me. 329, 14 Atl. 201.) See ante, p. 697, for a report of the case.

In re RATTENBERRY.

RAY v. GRANT.

(Supreme Court of Judicature, Chancery Division. [1906] 1 Ch. 667.) SWINFEN EADY, J.* The rule is that a legacy to a creditor of an amount equal to or greater than the debt is prima facie to be considered a satisfaction of the debt.

66 Reported sub nom. Wheeler v. Sheer in Mos. 288, 301 (1730). In In re Roby, Howlett v. Newington, [1908] 1 Ch. 71, the doctrine that, in applying the analogy of the statute of distribution to the case of partial intestacy of the beneficial interest in undisposed of residue, the advances made by the testator in his life time need not be brought into hotchpot was reaffirmed. Though the decision was unanimous, Fletcher Moulton, L. J., concurred "somewhat reluctantly."

* The statement of facts is omitted.

This rule was, established two centuries ago; but no sooner was it established than it was frequently disapproved of, and exceptions were engrafted upon it. In In re Horlock, [1895] 1 Ch. 516, 522, Stirling, J., said that he joined with the many judges who had disapproved the rule laid down, and that he equally disapproved of the exceptions which had been grafted on it, but that both were binding upon him; they are both equally binding upon me. The present case is in my opinion within the rule, unless there is sufficient indication of intention to exclude it. The debt was £150 money borrowed by the testatrix in 1899 from her sister, the plaintiff, upon which the testatrix paid interest at 5 per cent. during her life, and it was payable on demand.

The legacy is a general pecuniary legacy of £400 without any time. being specified for payment, and without any mention of interest. The will bears date November 23, 1903, and does not contain any direction to pay debts.

It is sought to exclude the rule on the ground that the debt carries interest from the death and the legacy only from one year after the death. But it was decided by Lord Hardwicke in Clark v. Sewell, 3 Atk. 96, 98, that where the legacy is in satisfaction of a debt and no time is fixed for payment of the legacy it carries interest from the death of the testator. If the will mentions a date for payment, then interest will only run from that date; and this was the ground upon which Haynes v. Mico, 1 Bro. C. C. 129, and Adams v. Lavender (1824) 1 McCl. & Y. 41, were decided, as pointed out by Stirling, J. Indeed, in Clark v. Sewell, 3 Atk. 96, 97, Lord Hardwicke said: "According to the rule of this court, a legacy that ought to be deemed a satisfaction must take place immediately after the death of the testator; for the debt, whether of a principal sum or for interest, is due at the death of the testator, and therefore the legacy must be so too. There is no case to make a legacy a satisfaction of a debt, where the legacy is not due at the time of the testator's death, but is made contingent, and to take place at a future day, * whether the postponing the legacy is a month only or a longer time, it makes no manner of difference." Lord Hardwicke, in referring to a legacy that "must take place immediately after the death of the testator," means a legacy the payment of which is not postponed by the testator. A legacy is within the rule laid down by Lord Hardwicke if it is an immediate legacy, although, of course, only payable in a due course of administration and after debts and funeral expenses have been provided for.

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*

In Fowler v. Fowler, 3 P. Wms. 353, where the debt due at the date of the will was £200, for arrears of pin money, and a general pecuniary legacy of £500 was given, Talbot, L. C., held that the legacy was a satisfaction of the debt. In Gaynon v. Wood, 1 Dick. 331, there was a bond debt of £200 and a legacy of £500 given to the creditor by a subsequent codicil, and the Master of the Rolls held that the legacy must be taken in satisfaction of the debt, and the fact that since the

death the executors had paid the bond debt to the creditor made no difference in adjusting the rights of the parties.

So, again, In re Fletcher, 38 Ch. D. 373, 376, before North, J., is an instance of a legacy being given in satisfaction of a debt, where the debt carried interest, and where no time was fixed for payment of the legacy. In that case the debt was in fact paid off by the testator in his lifetime, and the actual decision was that the legacy had been adeemed, but the learned judge first considered how the matter would have stood if the debt had not been so paid off. He said: "Suppose the debt had not been paid, could the widow have taken the debt as well as the legacy? I think clearly not." The fact, therefore, that the legacy is given generally, without any reference to time of payment or interest, will not exclude the rule.

Reliance was also placed on the fact that the plaintiff was appointed executrix and could retain her own debt, but in my opinion this makes no difference. As I have already pointed out, in the case of Gaynon v. Wood, 1 Dick. 331, the debt had been actually paid by the executor. I am therefore bound by the authorities to which I have referred to hold that in the present case the legacy is a satisfaction of the debt.

The distinctions between the cases on the satisfaction of debts by annuities are very slender, as may be seen by comparing Atkinson v. Littlewood, L. R. 18 Eq. 595, before Malins, V. C., and In re Dowse, 50 L. J. Ch. 285, before Hall, V. C., which latter case was followed by Stirling, J., in In re Horlock (1895) 1 Ch. 516; but it is by the decisions on cases of legacies, which leave no room for doubt, that the present case is governed.67

67 "A legacy by a debtor to a creditor will, in the absence of any evidence of the testator's intent, be presumed to have been given in payment of the debt, if the debt was contracted prior to the making of the will, and the legacy is as great or greater than the debt. The rule seems to have little or no foundation in reason, and is followed with reluctance. It does not apply where a debt turns out to be due on an account current, nor where the legacy is uncertain or contingent, or if there is an express direction to pay debts, or if there is a difference in the nature of the debt and legacy, or in the times in which they are respectively payable, or where the legacy is payable upon terms less advantageous to the creditor, or where the debt accrued after the making of the will, or where the property devised is of uncertain value, or where the expressed purpose of the gift, strictly construed, would not include a debt due from the testator." Gardner on Wills, p. 571. See, also, note to Holt v. Libby, reported ante, p. 697.

"In a case of ademption, where the will is first, that is a revocable instrument, and the testator has an absolute power of revoking or altering any gift thereby made. But where the obligation is earlier in date than the will, the testator when he makes his will is under a liability which he cannot revoke or avoid. He can only put an end to it by payment or by making a gift with the condition, expressed or implied, that the legatees shall take the gift made by the will in satisfaction of their claim under the previous obligation. It is therefore easier to assume an intention to adeem than an intention to give a legacy in lieu or in satisfaction of an existing obligation." Cotton, L. J., in In re Tussand, 9 Ch. D. 363, 380 (1878).

In Sharp v. Wightman, 205 Pa. 285, 54 Atl. 888 (1903), it was held that, in case the testator's intention is left in doubt by the will, evidence outside the will may be received to show whether the testator intended a legacy to his son to be an extinguishment of the latter's indebtedness.