itself makes the election for his benefit. Where the election is made to take under the instrument, the court effectually binds the interest of the party entitled to set up a paramount title by an appropriate declaration in favour of persons taking under the will, with incidental directions, where necessary, for conveyance, assignment, release, or the like (). The power of a married woman to elect varies with the nature of the property which she is required to give up if she elects to take under the instrument (m). A married woman has always been able to elect so as to bind her separate estate. The better opinion is that she could never elect where she had no power of disposition over the property to be relinquished; but that the court could elect on her behalf as to a fund, which she could dispose of with the consent of her husband and after separate examination by the court (n).

(1) Swanston's note to Gretton v. Haward (1818), 1 Sw. 413 n. (m) Theobald on Wills, p. 102.

(n) Theobald on Wills, p. 102.

CHAPTER XXIX.

Distinction

formance and satisfaction.

PERFORMANCE-ADEMPTION SATISFACTION.

THERE is a fundamental distinction between performance between per- and satisfaction (a). There is no difference between equity and law on the question whether the condition of a bord or whether a covenant has been performed or not. The question whether a bond or covenant has been performed depends not upon the intention of the obligor or covenantor but upon whether that has been done which was agreed to be done. The question whether a gift by will is a satis faction of an obligation depends upon the intention of the obligor. If an obligation has been performed according to its terms, the obligor is discharged. If an obligor makes a gift by will in satisfaction of his liability, it rests with the obligee either to accept the gift or to decline it. If he accepts it, he loses the right to enforce his obligation; if he declines it, he retains his original rights.

Courts of equity in the beginning of the eighteenth century were indulgent in treating acts as equivalent to a legal performance of obligations (b). Thus, it was held that a covenant to purchase lands and to settle them upon the covenantor for life and on his wife for her jointure and to the first and other sons in tail was performed by purchasing lands of the specified value and permitting them to descend (c); and that, where under such circumstances lands of less than the specified value were purchased, it

(a) In the early cases the words are used interchangeably; and the distinctions between satisfaction of a debt in the case of a stranger and satisfaction in the case of a child, and between satisfaction and ademption were only gradually worked out.

(b) See Deveze v. Pontet (1785), Pr. Ch. 240 n., 1 Cox, 188; Gart shore v. Chalie (1804), 10 Ves. 1.

(c) Wilcocks v. Wilcocks (1706), 2 Vern, 558.

was a performance pro tanto (d). Again, a covenant that the covenantor's executors should within three or six months after his decease pay a sum to his wife was held to be performed, where the covenantor died intestate, to the extent of the share taken by his wife in the personal estate (e).

The doctrines of satisfaction and ademption are based on the presumed intention of the party whose acts are alleged to satisfy or adeem, but the strength of the presumption which is raised by the court varies in cases between strangers and in cases between a father and his child.

I. SATISFACTION AND ADEMPTION AS BETWEEN
STRANGERS.

It was established by the beginning of the eighteenth Satisfaction of debt by century that, where a testator gives to a creditor a legacy legacy. equal to or greater than his debt, the legacy is a satisfaction of the debt (ƒ). The rule has been constantly dissented from ever since. "Though it is true," said Lord KING (g), "a man ought to be just before he is bountiful, and therefore shall be presumed to pay a debt rather than give a legacy to the same person, where it is the same sum or more than he owes him, yet why may he not be both just and bountiful, when there are assets to answer both?" The result of this dissatisfaction has been that every circumstance has been laid hold of to establish an exception to the general rule, and a case can seldom arise to which it is applicable. As the rule rests upon the testator's intention, a legacy can be no satisfaction of a debt incurred after the date of the will (h). A legacy is no satisfaction where it is not so advantageous in all respects as the debt (i). Hence a debt is not satisfied even pro tanto by a legacy of

(d) Lechmere v. Earl of Carlisle (1735), 3 P. Wms. 228.

(e) Blandy v. Widmore (1716), 1 P. Wms. 324; Lee v. Cox and D'Aranda (1746), 3 Atk. 419; 1 Ves. sen. 1; Gartshore v. Chalie (1804), 10 Ves. 1; Goldsmid v. Goldsmid (1818), 1 Sw. 211.

(f) Talbott v. Duke of Shrewsbury (1714), Pr. Ch. 394.

(9) Crompton v. Sale (1729), 1 Eq. Abr. 205, pl. 9.

(h) Thomas v. Bennet (1725), 2 P. Wms. 341; Fowler v. Fowler (1735),

3 P. Wms. 353.

(i) Atkinson v. Webb (1704), Pr. Ch. 236.

a smaller amount; it is not satisfied by a legacy of a larger amount if the legacy is uncertain and the debt certain, or if the legacy is contingent and the debt vested, or if the legacy is deferred and the debt immediate (k). STIRLING, J., has held that a legacy for payment of which no time is fixed does not satisfy a debt of a smaller amount payable within three months of the testator's death (1). His lordship followed a similar case before HALL, V.-C. (m); but the rule laid down by him marks a considerable advance upon the early cases. Where a legacy was made payable within a specified time after the testator's death and was charged upon land, it could not satisfy a vested debt, because the legacy was liable to fail if the legatee died within the time (n); and a legacy given upon a contingency does not satisfy a debt, although the contingency happens (o). Where the interest of £10,000 was given to A. for life, and the principal was to be paid to trustees in a month after the testator's death, it could not satisfy an immediate right to receive the interest of £2,000 because if A. had died before the month was out, she would not have been entitled to any interest (p). There is no satisfaction if the will giving the legacy contains a direction to pay debts and legacies (q), or even if it contains only a direction to pay debts (r). The presumption in favour of satisfaction is much weaker where the instrument creating the debt and the will are substantially contemporaneous (s). The presumption may be rebutted by

(k) Lady E. Thynne v. Earl of Glengall (1848), 2 H. L. Cas. 131, p. 153; Theobald on Wills, 5th ed., p. 673.

(1) In re Horlock, [1895] 1 Ch. 516. NORTH, J., assumes in In re Fletcher (1888), 38 Ch. D. 373, p. 376, that such a legacy would satisfy an ordinary debt due from the testator.

(m) In re Dowse (1881), 50 L. J. Ch. 285.

(n) Nicholls v. Judson (1742), 2 Atk. 300. See Richardson v. Greese (1743), 3 Atk. 65, p. 69.

(0) Talbott v. Duke of Shrewsbury, supra; Mathews v. Mathews (1755), 2 Ves. sen. 635.

(p) Clark v. Sewell (1744), 3 Atk. 96, p. 98.

(4) Chancey's Case (1717), 1 P. Wms. 408; Richardson v. Greest (1743), 3 Atk. 65; Field v. Most in (1778), 2 Dick. 543.

(r) Hales v. Darell (1840), 3 B. 324; Cole v. Willard (1858), 25 B. 568 Horlock v. Wiggins (1888), 39 Ch. D. 142; In re Huish (1889), 43 Ch. D. 260.

(8) Horlock v. Wiggins, supra.

evidence of the testator's declarations whether before, at the same time as, or after the making of the will (†).

If a legacy appears on the face of a will to be bequeathed, Legacy given for although to a stranger, for a particular purpose, and a particular subsequent gift appears by proper evidence to have been purpose. made for the same purpose, there is a prima facie presumption in favour of ademption (u). Evidence is admissible of the circumstances under which the gift was made, including contemporaneous or substantially contemporaneous declarations of the donor, whether communicated to the donee or not (x). To constitute a particular purpose within the meaning of the rule, it is not necessary that some special use or application of the money by or on behalf of the legatee should be in the testator's view. It is no less a purpose if the bequest is expressed to be made in fulfilment of some moral obligation recognised by the testator (y).

II. SATISFACTION AND ADEMPTION AS BETWEEN FATHER

AND CHILD.

double If, portions.

A father, according to the language of the early judges, Presumption owes a debt of nature to his children, and it is not to be against presumed that he wishes to pay that debt twice over. therefore, on two occasions he appears to have made provision for the payment of his so-called debt, the court presumes that the later provision was intended to be taken in substitution for the earlier one. A gift made by way of bounty must be distinguished from a gift made in pursuance of "the debt of nature." There is no presumption in equity against the multiplication of bounty on the same head; and a gift made by a parent to a child may be mere bounty. If it is bounty, no presumption arises that it was intended to satisfy or be satisfied by another gift to the same child, whether that other gift was intended as a provision or not. It follows that before the presumption against double

(t) Cuthbert v. Peacock (1707), 2 Vern. 593; Wallace v. Pomfret (1805), 11 Ves. 542.

(u) Roome v. Roome (1744), 3 Atk. 181, p. 184; Pankhurst v. Howell (1870), 6 Ch. 136; In re Pollock (1885), 28 Ch. D. 552; In re Fletcher (1888), 38 Ch. D. 373.

(x) In re Pollock, supra. (y) In re Pollock, supra.