Dey v. Williams

Gaston, Judge. —

The court cannot decree that the legacies bequeathed to the' plaintiff Elizabeth were given in satisfaction of the debt due to her by the testator. The first bequest to her is of a negro girl, abed and furniture,but not to take effect in possession until after the death of the testator’s wife. The other is of a share of tire 'proceeds of certain negroes directed to be sold, and of the general residuary estate, expressly subject to the payment of the testator’s debts, and to a life estate of his widow. A legacy is not presumed to have been intended in satisfaction of a debt due by the testator to a creditor legatee, where there is no deficiency of assets to pay both debts and legacies, if there be a difference in the nature of the debt and legacy, or a difference in the times when they are respectively payable, or wherethe one is certain arid absolute, and the other contingent and uncertain. The answer indeed avers, and offers to prove by testimony Jehors the will, that the legacies were given in discharge, and because of the debt. We are not prepared to say that testimony for that purpose can be received, but we are not under the necessity of deciding the question, as no such testimony is to be found-jin the proofs,

Upon the pleadings and proofs there is no other matter presented for our determination. An account has been had by consent of the parties, andjno exception has been taken thereto. The report therefore isj to be confirmed, and the plaintiffs to have a decree for the amount thoreof.

Per Curiam. Decree accordingly.