Power to compound debts, &c.

Power to

wife, and, af

ter her death,

to trustees for

the time be

ing, to appoint trustees.

delivered to such trustees or trustee by virtue of
my will, and declare that such receipts shall exon-
erate the persons taking the same from liability to
see to the application or disposition of the monies
or effects therein mentioned. I EMPOWER the
trustees or trustee for the time being of my will to
compound or allow time for the payment of any
debt or debts due to my estate, and to settle
all demands against my estate, and all accounts
between me and any person or persons, on
such terms as my said trustees or trustee shall in
their or his discretion think expedient, and to re-
fer any matters in difference relating to my affairs
to arbitration. I DECLARE that if my said trus-
tees, or any of them, or any person or persons to
be appointed under this clause, shall die, or be un-
willing or incompetent to execute the trusts of my
will, it shall be lawful for my said wife during her
life, and, after her death, for the competent trus-
tees or trustee for the time being, if any, whether
retiring from the office of trustee or not, or, if
none, for the executors or administrators, or either
or any
of the executors or administrators, of the
last surviving trustee, to substitute, by any writing
under her, his, or their hand or hands, any fit
person or persons, in whom alone, or, as the case
may be, jointly with the surviving or continuing
trustees or trustee, my trust estate shall be vested;
and I exempt every trustee of my will from lia-
bility for losses occurring without his own wilful
default, and authorize him to retain and allow to

his co-trustee or co-trustees all expenses incidental to the trusteeship, I APPOINT the said [trustees] to be executors of my will. LASTLY, I revoke all other wills. IN WITNESS &c.

of executors.

of executors

and guardians.

No. X.

WILL of a MARRIED MAN, disposing of Personal Property in favour of his Wife and Children. Furniture, &c., bequeathed to Wife absolutely-Income of Residue to Wife during Widowhood-Capital to Children and Issue, living at her Death or Marriage, per stirpes-Husbands and Widows of deceased Children to participate-Maintenance and Advancement.-Directions as to Investment of Residue, with Power to continue existing Investments, and special Provisions as to what shall be deemed Income.Powers to give Receipts, appoint Trustees, &c.

THIS IS THE LAST WILL AND TESTAMENT of Appointment me [testator's name, &c.]. I APPOINT [names, &c.] to be trustees and executors of my will; and I appoint my dear wife [name], during her widowhood, to be guardian, and after her death or marriage the said [trustees], and the survivors and survivor of them, to be guardians and guardian of my infant children. I BEQUEATH the household furniture, &c. furniture, plate, linen, china, glass, liquors, fuel, pecuniary le- and housekeeping stores, of which I shall die pos

Bequest of

to wife abso

lutely, and

immediate

sessed to my said wife absolutely; and I also be- gacy for her queath to my said wife £ for her immediate use. use, to be paid within ten days after my decease.

gacy to bro

I BEQUEATH to my brother [name] the sum of Pecuniary le£, to be paid to him within six calendar ther. months after my decease: and I direct that the same legacy shall not be deemed a satisfaction of the debt owing from me to him (a). I BEQUEATH Income of re

sidue to wife

(a) A gift by will appears prima facie to import bounty, Debts, when satisfied by and yet, in spite of this seemingly obvious principle, it has legacies. been long an established doctrine, that where a person, who is under an obligation to pay a sum of money, bequeaths by his will to his creditor a pecuniary legacy equal to, or greater than, the amount of such debt, he is presumed to mean to discharge the obligation, and not to confer an additional benefit on the legatee, except, indeed, so far as the legacy may happen to exceed the debt. (Brown v. Dawson, Pre. Cha. 240; Fowler v. Fowler, 3 P. W. 353; Beech v. Kennegal, 1 Ves. sen. 124; see also Walker v. Smith, 4 Madd. 325, overruling Cuthbert v. Peacock, Salk. 155). But a legacy of less amount is not a satisfaction even pro tanto; and it seems that, where there are several debts, a legacy equal to one of them will not satisfy such debt; (Graham v. Graham, 1 Ves. sen. 262); nor in any case will a debt be satisfied by a general or residuary bequest; (Barret v. Beckford, 1 Ves. sen. 519; Devese v. Pontet, 1 Cox, 188); nor, à fortiori, by the gift of something entirely different. Thus, the gift of an estate or an annuity would not bar the legatee's right to a pecuniary debt, or vice versa. (Cranmer's case, Salk. 508; Broughton v. Errington, 7 B. P. C. 461, Toml. ed.; Richardson v. Elphinstone, 2 Ves. jun. 463). It is clear, too, that a debt will not be satisfied by a legacy payable expressly at a more distant period; (Nicholls v. Judson, 2 Atk. 300; Haynes

L

during widowhood.

the income of the residue of the personal estate of which I shall die possessed to my said wife for her

v. Mico, 1 B. C. C. 129; Adams v. Lavender, M'Clel. & You. 41); or by a legacy which is subject to a contingency not affecting the debt; (Lee v. Brown, 4 Ves. 362; Tolson v. Collins, 4 Ves. 483); though contra, it seems, if a legacy originally contingent becomes absolute from circumstances occurring in the lifetime of the testator. (Matthews v. Matthews, 2 Ves. sen. 635. Sed quære?). A very slight variation in the mode of payment, rendering the legacy less beneficial than the debt, is sufficient to rebut the presumption such as the circumstance of the legacy being payable a month after the testator's death, and the debt instanter ; (Clark v. Sewell, 3 Atk. 96); or (where the subject is an annuity) the circumstance of the bequeathed annuity having a later commencement than the annuity to which the legatee is entitled; (Richardson v. Elphinstone, 2 Ves. jun. 463); or of the former being payable half-yearly, and the latter quarterly; or of the former being subject to deductions from which the latter is exempt; (Atkinson v. Webb, Pre. Cha. 236); nor is the effect of differences of this nature neutralised by any superiority in other respects, rendering the legacy upon the whole more valuable than the debt. (Lee v. Brown, 4 Ves. 362). The presumed satisfaction is not negatived by the circumstance of the legacy being payable at an earlier period than the debt, (Wathen v. Smith, 4 Madd. 325), which, indeed, seems almost the only kind of variation, except that of mere excess of amount, which will not have such an effect.

The doctrine of satisfaction does not apply to debts due upon a negotiable security, which may not be in the hands of the legatee; (Carr v. Eastabrook, 3 Ves. 564); nor to a debt constituted of the balance of a running account, the result of which may be unknown to the testator; (Rawlins v. Powell, 1 P. W. 299); nor, of course, has it any appli