relied strongly on that circumstance in Miall v. Brain (a). The widow here is invested with a power of distress and entry, extending over the whole property, which is clearly inconsistent with her being entitled to have one-third of it set out by metes and bounds. Here, also, there is the devise of a part of the estate itself to her, which, although by itself it would not exclude her from dower out of the residue, is yet, when coupled with the other provisions in this will, entitled to some weight as an indication of the testator's intention. The powers of sale and leasing given to the trustee must be suspended during the widow's life, as to one-third of the lands, if her claim of dower be allowed to prevail.

It must be presumed that the testator was aware, when he made his will, that the debts due to his sons-in-law were absolutely vested in them; and, consequently, that when he directed his debts to be paid, and gave the legacies to his daughters, he did not intend the one to be a satisfaction of the other. This is the case of a debt, in which the leaning of the Court towards presuming satisfaction, is much less strong than in the case of a portion, for the Court will make every presumption against double portions; but it is not disposed to extend the application of the principle in cases of debt. In the latter cases the Court will lay hold of any circumstances of difference between the two, to escape from the application of the rule; Mathews v. Mathews (b); and Hinchcliffe v. Hinchcliffe (c). In the present case there are several circumstances of difference between the debt and legacy, any one of which would be sufficient to take the case out of the general rule. The legacy is given to the wife, the debt is due to the husband; the former, therefore, is a "chose in action" of the wife; and if the husband died before it was reduced into possession, it would belong to her. If both live until it is reduced into possession, the wife will be entitled to a settlement out of it. In a recent case, a legacy given to a wife generally, was held not to be a satisfaction of a sum of money given to her separate use, which was due by the testator; Fourdrin v. Gowdey (d). The legacy is less beneficial than the judgment. In consequence of the rights of the wife in the former, the husband could not dispose of it by will at all; nor by deed, except subject to the wife's equity to a settlement; and the legacy's being less beneficial than the debt, has been held a reason for not presuming a satisfaction; Nicholls v. Judson (e); Crompton v. Sale (f). The legacy here is not payable at the same time as the debt, which was due the day after the testator's death; while the legacy was not payable until a year after the testator's death. That is another ground for not presuming a

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Argument for the plaintiffs, as to the legacies being in satisfaction of

the judgments.

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v.

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Argument for

the plaintiffs as to the admission of parol evidence.

satisfaction; Adams v. Lavender (a). The legacies are not even of the same amount as the judgments; they are less by the costs of entering up judgment. Besides the debt here is assignable at law, and it has been held that a legacy is not a satisfaction of a debt due upon a negociable security, because the latter may be vested in a third person; Carr v. Eastabrooke (b).

The parol evidence is tendered for the purpose of raising a presumption which, it is admitted, does not appear on the face of the will; that is, in fact, to shew that the testator did not mean what he said in his will. That evidence cannot be admitted for such a purpose, was decided by Sir J. Leach in Hurst v. Beach (c), after great consideration. In all the cases in which parol evidence has been admitted, it has been for the purpose of supporting the will itself against some presumption which equity raises, contrary to the intention appearing on the instrument itself. The case of Hinchcliffe v. Hinchcliffe (d), which is relied on by the other side, has been misconceived by several of the Judges who commented on it; the evidence there was not admitted for the purpose of explaining the will, but to shew what were the circumstances of the property of which the testator was disposing in his will. That case was commented on by Lord Eldon in Pole v. Lord Somers (e), and Druce v. Denison (f); and in both cases he rests the decision of Lord Alvanley upon the ground just stated, and approves of it as such. As to the cases of Weall v. Rice (g), Booker v. Allen (h), and Lloyd v. Harvey (i), if taken in the sense attributed to them by the defendants, they are quite opposed to the decision of the same Judge in Hurst v. Beach (k); and it is hardly to be presumed that he intended to overrule so solemn and well considered a judgment as that in the latter case, without even alluding to it; and the cases themselves are capable of a construction quite consistent with his previous decision. In Weall v. Rice it is not stated in the report on whose behalf the evidence was tendered. Evidence may have been adduced to rebut the presumption of satisfaction which was raised on the will and settlement, and the evidence mentioned in the report may have been then adduced in support of the presumption, which would have been quite correct, and the observations of Sir J. Leach probably referred to that, and were misconceived by the Reporter. The same observations apply to Booker v. Allen and Lloyd v. Harvey. In Powys v. Mansfield (1), Lord Cottenham admitted parol evidence of intention; but he

expressly says in his judgment (a) that it was to support a presumption which had been attempted to be rebutted by parol evidence. The present case is precisely the same as Brown v. Selwyn (b), where a testator having appointed his debtor one of his executors, and given to him and his co-executors all his property equally, parol evidence was tendered to shew that the testator intended to have released them from the debt; but Lord Talbot refused to receive it, and his decision was afterwards confirmed by the House of Lords.

There is nothing directly inconsistent with the will, in the widow's being entitled to dower. The devise of part of the estate, it is admitted, would not affect her right to dower out of the residue. That a gift of an annuity will not have that effect, has been decided in Pitts v. Snowden (c), by Lord Hardwicke; in Foster v. Cooke (d), by Lord Thurlow; and in Greatrex v. Carey (e), by Sir William Grant. Lord Camden's decision in Villareal v. Lord Galway (f), so far as it proceeds upon the ground of the annuity alone, has not been followed, and it is not an authority to that extent now. In Roadley v. Dixon (g), Lord Lyndhurst rested his decision upon the direction in the will, that the trustees should manage the farm that he held himself, which his Lordship considered inconsistent with the widow's claim of dower. In Dawson v. Bell (h) and Harrison v. Harrison (i), it was held that a gift of an annuity to the testator's widow, charged on all his estate, with a power of distress and entry, and a devise of "all" his estate subject to that, did not exclude the widow from her dower. By the devise of "all" his estates, the testator must be presumed to devise them subject to all the encumbrances affecting them, of which the widow's right to dower isone. The case of Dummer v. Pitcher (k) shews what little effect a mere general disposition by a testator, of all his property of a particular nature, will have in putting persons who have rights affecting that property independently of his will, to their election.

the defendants as to the pre

satisfaction.

The judgments in this case are to be considered as portions; the debts, Argument for which the bonds were given to secure, being portions. Considering them as portions, there is enough to raise a presumption of satisfaction. The sumption of legacies are absolute, as well as the debts, and were evidently intended as portions. The circumstance of the former being given to the wives, while the latter are vested in the husbands, is not such a difference between the two provisions as will repel that presumption. The case of

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Argument for the defendant

Weall v. Rice (a) shews that slight circumstances of difference between a provision which a father has bound himself to make for his child, and a provision afterwards made by his will for the same child, will not prevent the latter from being considered a satisfaction of the former. The circumstances of the family and the property are clearly admissible in evidence, independently of the question as to our right to read the declarations of the testator-Hinchcliffe v. Hinchcliffe (b); and they clearly shew that the legacies were intended as a satisfaction of the debts; Powys v. Mansfield (c). The case of Fazakerly v. Gillibrand (d) shews that the circumstance of the legacies being less than the debts, does not prevent the presumption of satisfaction pro tanto, even if the Court should place any stress on so trifling a difference as that occasioned by the costs of entering up the judgments. As to the debts being transferable, the statute (e) which makes judgments assignable, expressly makes them subject, in the hands of the assignee, to the same equities that affected them in the hands of the original conusee, and the case cited on the other side refers only to bills and notes, which are transferable by indorsement.

Parol evidence may be used either to raise, to fortify, or to rebut, a as to the ad- presumption. It is not disputed that it is admissible for the latter purpose, missibility of but its admissibility for the former is questioned. We have, however, the parol evidence. on our side the authority of Lord Eldon, who, in Wallace v. Pomfret (f), admitted evidence of this description to shew that a legacy to a servant was not intended to be a satisfaction of a debt due to her for wages. In Monck v. Monck (g) Lord Manners lays it down dictinctly, that parol evidence is admissible to confirm a presumption. In that case no parol evidence had been tendered on the other side to rebut the presumption, which makes it an authority precisely in point. In the recent cases of Weall v. Rice (h), Booker v. Allen (i), and Lloyd v. Harvey (k), parol evidence was admitted by Sir J. Leach for the purpose, in the two former cases, of fortifying a presumption of satisfaction-and, in the latter, of raising such a presumption; and his observations in the first of those cases (1) are most distinct and unequivocal, and are incapable of being explained in the way suggested on the other side. Booker v. Allen is cited without disapprobation, by Lord Cottenham, in Powys v. Mansfield (m); and Lord Langdale, M. R., in his judgment in Lord Glengall

v. Barnard (a), expressly declares that Sir J. Leach has laid down the rule correctly in Weall v. Rice.

THE LORD CHANCELLOR.

There are two questions in this case requiring decision at present; one relates to the admission of parol evidence; the other to the right of the widow to dower, in addition to the benefits given her by the will. As to the latter question, I do not entertain any hope that I shall be able to reconcile all the authorities upon the subject. In the present case, the widow takes under the will of the testator, not only a rent-charge extending over the entire of the estate, but also a portion of the estate itself. Out of that portion, of course, she cannot have any right of dower; but the question remains, whether the residue of the estate has been disposed of in terms which can be considered as shewing an intention on the part of the testator, that she was not to take anything out of it beyond what he had given her by his will. Looking into the authorities upon the question, and particularly the case of Villareal v. Galway (b), it is impossible not to perceive that Lord Camden intended to rest his decision in that case upon the circumstance of an annuity having been given to the widow; and although there was a leasing power given by the will, and other circumstances shewing an intention that the widow was not to have the dower, yet, as he rested his decision entirely on the fact, that an annuity had been given to the widow, overriding the entire of the property subject to her dower, his decision, to that extent, is not an authority to be followed. It is impossible to maintain Lord Camden's authority to that extent unimpeached-because the abstract question is perfectly settled, that the gift of an annuity to the widow, out of the property which is subject to her dower, is not a bar to her right of dowerinasmuch as it is not inconsistent with her claiming her dower; and if it rested upon that alone, it is perfectly clear that she would be entitled to both. But although that is settled, yet in all the subsequent cases, the Judges profess to save whole the authority of Villareal v. Galway. They say it is a binding authority, but each endeavours to distinguish it from the case before him, by resting it on other grounds than those on which Lord Camden himself put it. Lord Redesdale puts it on particular circumstances, which were, in his opinion, sufficient to sustain it; and so Lord Lyndhurst considers it a binding authority upon the subject; but he refers it to special grounds not relied on by Lord Camden himself. I think, therefore, that that decision is an authority upon the special grounds to which it has been referred; but I do not consider it an authority to be followed upon the abstract question whether the devise of an annuity to a widow, charged upon lands out of

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