Edelen's Ex'rs v. Dent's Adm'rs , 2 G. & J. 185 ( 1830 )

Buchanan, Oh. J.

delivered the opinion of the Court.

The question here is a very short one. James Edelen being indebted to his sister Elizabeth Dent on a single bill, which was due before, and at the time of his death, made his will after it had become due, in which he first directs that his executors shall pay and satisfy all his just debts. He then directs, that they shall sell the whole of his real estate, and all his personal estate not specifically bequeathed; the personal property on a credit of six months, and the real estate on a credit of six, twelve, and eighteen months, and that the whole of the proceeds shall be distributed among his legatees therein after named, in the proportions designated. To his sister Elizabeth Dent he bequeaths a sum of money exceeding in amount the debt due from him to her; and whether this pecuniary legacy shall be taken as a satisfaction of the debt, is the question submitted?

The general rule of law, that a pecuniary legacy, of an equal, or a larger amount, is to be taken as a satisfaction of a debt, is undeniable; but it is not an unbending rule, and not being much favored is made to yield to slight circumstances to be found in the will. Such as an express devise for the payment of debts and legacies, the creation of a fund for the payment of debts, and a charge of the legacies on that fund; or if the legacy be uncertain and made to depend upon a contingency, 2. Mad. Ch. 42, 43, 44, 3 Atk. 65, or if the payment of the legacy he postponed by the will to a time subsequent to that, -at which the debt is due and payable, or if the debt be due at the time of the testator’s death, and the legacy be not made payable immediately, but at some future time, 2. Mad. 44. 3 Atk. 96. 1 Brown’s Ch. Rep. 295. In this case with the exception that the legacy is not made to depend upon a contingency, all those circumstances concur. The debt was subsisting and due before and at the time of the testator’s death; there is an express devise for the payment of debts and legacies, the creation of a fund charged with the payment of debts and legacies, and the legacy to Elizabeth Dent is not made payable immediately on the death of the testator, but with the other legacies, is to be paid out of the proceeds of sales of the real and personal property, and might in part at least, not be paid until long after the executors by law were bound to pay the debts, the real property being directed to be sold, at a credit of six, twelve, and eighteen months, from the time of sale.

There is moreover another circumstance presented by this will, which, is worthy of consideration. It is this, that there is a specific bequest, to one of the objects of the testator’s bounty, and a pecuniary legacy to another, to whom he expressly releases the debts respectively due by them to him; which tends to shew the general intention of the testator, that the different legacies bestowed should be enjoyed as clear bounties by those to whom they were given, unaffected by any debts, owing to, or by him, or them. We therefore think, that the pecuniary legacy to jElizabeth Dent, is not to be taken, as in satisfaction of the debt which was due to her by the testator.

JUDGMENT AFFIRMED.