Byrne v. Byrne , 3 Serg. & Rawle 54 ( 1817 )

Ye ates J.

It is indisputable, that the intention of a testator expressed in his will, and fairly collected therefrom, shall govern its construction. Courts of justice, in order to preserve uniformity of decision, and thereby give stability to property, have adopted certain legal principles, to which they will adhere in all proper cases. But it is obvious, that decisions upon wills, are less authoritative than in other instances, arising from the great variety of motives which influence different men, in the disposition of their property, and their manner of conveying their meaning.

A rule has prevailed, that wherever a person by his will, gives a legacy as great or greater than the debt he owes to the legatee, such legacy shall be a satisfaction of the debt, on the presumption that a man must be intended just, before he is bountiful, and that his intent is to pay a debt, and not to give a legacy, 1 Equ. Abr. 203. 2 Salk. 508. 2 Vern. 177. 258. 298. The rule itself is not founded in reason, and often tends to defeat the bounty of testators, and able chancellors have thought it more agreeable to equity, to construe a testator to be both just and generous, where the interests of third persons are not affected. And courts of justice will now lay hold of slight circumstances to get rid of the •rule, Legacies are considered as gratuities, and are always construed favourably. If they be less than the sum due, payable on a contingency, or a future day, on these and the ' like circumstances, they will be construed as additional bounties, and not as satisfactions, 4 Bac. 367. And although the contingency does actually happen, and the legacy thereby becomes due, yet it shall not go in satisfaction of the debt, because a debt which is certain, shall not be merged or lost by an uncertain and contingent recompense. For whatever is to be a satisfaction of a debt, ought to be so in its creation, and at the very time it is given, which such contingent provision is not. Prec. Cha. 395. Talbot v. Duke of Shrews-bury, et al. I am far from wishing to break through any settled rule of decision, and yet I cannot but fully agree with Mr. Finch in his note to this case, that according to the most modern decisions, it is presumed, that the legacy must be in all respects, ejusdem-generis, to cause a satisfaction of the debt, and an apparent intention in the will, that the testator meant it as such.

Taking the whole of the will together, my mind is satisfied, that both plaintiffs stand precisely on the same ground as to joint demands, in right of their mother on their father’s estate. Both of them are precluded from maintaining this suit, or neither of them.

The gratuity of the father,'of the Baltimore stock in trade, amounting to at least g 6000, to Patrick, can have no effect on our decision. It is stated in the case, to be a voluntary gift by the testator to his son. •

It has been objected, that there was no general direction in the will, that the testator’s debts should be paid by his executors. This can be of no moment in Pennsylvania, where all the estate real and personal of deceased persons, are made assets for the payment of debts, as was decided in Smith v. Smith’s executor’s, 1 Binn. 211. In this State, such direction is mere matter of form, pursuing the English precedents. The law imposes on executors and administrators, the obligation of discharging the debts of their testator or intestate.

It is also much relied on, that the testator bequeathed to Patrick, 500 dollars, and no more, and that these last words necessarily imply an intention, that he should have no other claim on the estate. I cannot assent hereto. If such was his meaning, he might clearly have expressed it. But the plain meaning of these expressions is, that Patrick should, participate the bounty of his father no further; not that he should surrender up an honest debt of 700 for 500 dollars; In this particular only, can we discover any dissatisfaction of the father with his eldest son, when he excludes him from a share of the residuum. Nor do I deem the cancelling of the debt of $10,778, as equivalent in all respects, to a devise of so much money. It was not ejusdem generis, with the sum he owed to his two sons jointly, when, as it is stated in the case, the two plaintiffs were not jointly indebted to him, nor was Henry separately indebted to him.

Although Henry is declared by the will to be entitled to one-fourth part of the residuum, it was but a contingency whether his distributive share would surmount his proportion of the 350/. sterling, or not. The strong probability, it is true, was that it would exceed it; but the amount was not certain; and it lay within the range of human events, and the vicissitudes of trade, that the testator’s affairs might, by possibility, wind up differently. The amount of the legacy in its creation was uncertain, and the recompense contingent.

It is a circumstance of weight in my mind, in the present instance, that there is no deficiency of assets whereby fair creditors might be exposed to the risk of losing part of their honest demands. This was relied on by Ld. Ch. Cowper, in Cuthbert v. Peacock, 1 Salk. 155.

Upon the whole will, I am of opinion that there is not such an apparent intention disclosed therein, that the testator meant his two sons should be barred or precluded from maintaining this action for their maternal debt; and therefore judgment should be entered for plaintiffs.

Gibson J. concurred.

Judgment for the plaintiffs,