sent Chancellor in Pole v. Lord Somers, and relied on by *him as an authority, as to one of the branches of his decree in the last mentioned cases. For the object with which we fare at pre- [ 49 ]

ed a legacy of 500%. to be paid in six months, this was held to be no pers formance.*

The true reason of the difficulty which has been so often confessed, of separating cases of performance from cases of satisfaction, seems to have arisen from the want of annexing a just idea to the word satisfaction, which is, in truth, a term of loose and general signification, according to the use which has been always made of it in courts of equity, and has been adopted popularly to express the final and substantial effect, as well of cases of performance as of cases of election and cases of ademption or revocation, which are the terms truly expressive of the means and operations of law, by which that result described by the word satisfaction is produced. I hazard the opinion with great timidity and respect, but I cannot help suspecting that it will be difficult, if not impossible, to suggest an example of a pure case of satisfaction, if we treat the term as having an exclusive and appropriate sense, and not rather as generically comprehending certain specific varieties of equitable rules and technical consequences.

Every case upon a will made by a person under a binding contract unless it be considered as an actual performance, can only amount to a case of election; for how can a testator by his will forcibly substitute another thing in the place of that thing which he was bound by his contract to do, or how can such a substitutionary disposition have any other operation than by giving a better thing in lieu of the thing contracted for, to engage and insure the choice of the devisee or legatees on highly presumable grounds of preference? If such a case is termed a case of satisfaction, it is because such is the final consequence of an election, for it may be presumed almost as certain, that where a better is proposed in the place of an inferior benefit, the condition will be accepted. In strictness, therefore, this is a pure case of election, or of satisfaction working by election.

Payment is performance. Thus where a legacy is bequeathed to a creditor, equal to or exceeding the amount of the debt, the debt is considered as meant to be answered by or included in the gift. This is therefore a satisfaction by performance, with this peculiarity distin guishing it from those other cases of performance treated of at the beginning of this note, that there can be no performance pro tanto by a legacy of a smaller sum, whereas, according to the case of Lechmere

Haynes. Mico, 1 Bro. 129, and see Richardson . Elphinstone, 2 Vez. jun. 464.

F

sent concerned, the case of Hinchcliffe v. Hinchcliffe, may be [50] shortly stated thus: "In a settlement made in *contemplation of marriage, the sum of 6000l. standing secured upon bonds, be

Lord Carlisle, above cited, a covenant to make a certain provision may be partially satisfied by an inceptive performance.

Where a man having granted a benefit or provision by a voluntary and revocable instrument, by a subsequent instrument makes an advancement of some other bounty, or gratuity, by way of provision, to the same object, and the circumstances of the case warrant the inference that the second provision was meant to take place of the first, is this properly a case of satisfaction? A satisfaction it ultimately may be, but the true operation of it is to revoke or adeem the legacy. Neither is the term satisfaction expressive, in any other sense than as a discharge, of its ultimate effect in equity, since a smaller sum given in the life-time may, under circumstances, annul a greater provision by will.†

But if a legacy of a larger sum can be wholly set aside by the substitution of a less, this cannot be called a performance, still less a satis. faction by performance, and still less a satisfaction by election; but there seems to be no impropriety or confusion of terms in calling it a satisfaction (meaning only thereby a discharge) by revocation or ademption. And this phrase is the more appropriate, because it is certainly not in strictness of legal language an ademption or revocation simply: it is a satisfaction working by way of revocation; for in truth, it operates as a revocation on a principle of equitable presumption.+

It does not redound much to the accuracy of a science to multiply terms, and apply different rules to them, without first distinguishing between the different ideas to be implied by those terms: and, therefore, until the word "satisfaction" has a more appropriate and exclusive sense, it will only perplex the subject, to talk of cases of satisfaction as distinguished from cases of performance and cases of election. The idea which is meant to be conveyed by satisfaction, simply used, is, neither descriptive of cases of performance, cases of election, nor cases of revocation. It is not descriptive of performance, because it is not used to signify the identical, or substantial, or virtual effectuation of the thing contracted to be done, but the substitution of one thing for another. And as there are only two sorts of cases, wherein this substitution can take place, viz. where the thing to be done is vo

For some useful distinctions on this subject, the reader will do

well to look into the case of Shudall v. Jekyll, 2 Atk. 517.

† Vide Hartop v. Whitmore, 1 P. Wms. 680. Shudall v. Jekyll, 2 Atk. 517. Rosewell v. Bennett, 3 Atk. 77.

+ Vide Ellison. Cookson, 1 Vez. jun. 100, 7 Vez. jun. 516.

ing part of the lady's fortune, and a house in Conduit-street, upon a renewable lease, belonging to the husband, among other property of the marrying parties, were assigned to trustees, by way of provision for the issue of the marriage, after the deaths of the parents. After the marriage, the husband, without the privity of the trustees, received the 6000. due upon the bonds, and laid out the sum of 54251. 178. 8d. part thereof upon a mortgage, retaining and applying the difference, or balance, to his own use, and he also renewed the lease of the house, and afterwards assigned it, without consulting the trustees, and received the purchase money to his own use. In 1793, not long before his death, there being then two sons and three daughters by the marriage, and the wife being alive, the settler made his will, bequeathing out of his general property portions to his children to a much larger amount than their fortunes under the settlement; and a bill was filed by the younger children, praying that they might be declared to be entitled to the benefits provided for them, both by the settlement and the will. The eldest son, to whom the residue was bequeathed by the father's will, insisted in his answer upon the production of certain books kept by the testator, in which were entered regular accounts of the particu lars of his property, and its progressive increase from 1778 to 1781, and from 1784 to 1793; and in which accounts he regularly set down the money due upon the mortgage, as part of his ●wn income, as also the rents of the leasehold premises, till they were sold, and after the sale of them, the produce was brought into those accounts as his own money. The object in producing *these books of accounts, was to show that the testator did not mean the benefit under the settlement, and the bounty under the will, to be accumulative, but to identify the funds out of which the provisions made by the settlement were to come, with the ge neral mass of his property, so that the bequests of the will might attach equally and promiscuously upon the whole, imply

* [ 52 ]

luntary, and where it is obligatory or resting in contract, in the former of which cases, the satisfaction operates by revocation, in the other, by putting the party benefited to his election, the final consequence only of each operation is properly expressed by the word satisfaction, as a sort of genus to which these cases are referrible as the specific va rieties.

ing an intention to substitute the testamentary disposition in the place of the settled provision. Now whether these books were admissible evidence, or not, was the important question; upon which the Master of the Rolls (the late Lord Alvanley) thought, that if the evidence went to explain or alter the will, it ought not to be admitted, and expressed his disapprobation of Heather v. Rider,(e) as being too strong a case for receiving written collateral evidence of intent, in the report of which he suspected there must have been some mistake. His honour seemed to consider the case before him as properly a case of election, which he carefully distinguished from those cases wherein the testimony offered had for its object the explanation of the will; but in cases of election, which to this purpose he treated as similar to cases of satisfaction or performance, he was of opinion, such evidence was only produced to manifest the circumstances under which a testator made his will; and the case of Pulteney v. Lord Darlington was much relied upon, as well as that of Jeacock v. Falconer,(ƒ) wherein Lord Thurlow observed, that evidence as to the facts upon which the testator made his will ought to be admitted.

The judgment in this case of Hinchcliffe v. Hinchcliffe, has a diversity of bearing, and ought to be carefully discriminated from other cases, with which it has many circumstances of affinity, before we can understand how far its principles accord with the prevailing system of law in respect to this great question of evidence.

In Druce v. Dennison, the present Chancellor treated, as irre*[53] concilable with the apprehensions of his own mind on *the subject, the dictum of Lord Alvanley, in Hinchcliffe v. Hinchcliffe, as well as those of C. J. De Grey and Baron Eyre, said to have been pronounced by them in Pulteney v. Lord Darlington, which seemed to import that extrinsic evidence might be admitted so as to raise a case of election upon the words of the testator ; which dictum did not accord with the general proposition laid down by the Master of the Rolls, as the foundation of his judg ment in Hinchcliffe v. Hinchcliffe, viz. that evidence might be admitted to show the circumstances under which a testator made his will, but not to explain a will-that is, in the sense in which the word explain is manifestly used by him, not to annex a mean: (f) 1 Bro. C. R. 295.

(e) 1 Atk. 425.

ing to words beyond their proper legal acceptation. But does. not the resort to facts and circumstances out of a will, for the purpose of raising a case of election, seem to be an admission of extrinsic testimony, to explain or rather alter the will? We are to observe, however, that it was with the dictum of the judge, and not his adjudication in Hinchcliffe v. Hinchcliffe, that the present Chancellor, in his great decision of Druce v. Dennison, expressed himself dissatisfied. He was of opinion, that the proper and just effect of the evidence of the account admitted in Hinchcliffe v. Hinchcliffe, was not to raise a case of election, but to establish and confirm the presumption of satisfaction; for the testator, before making his will, had received the value of the house in Conduit-street, and the difference between the 6000l. and the value of the mortgage, on which, part of that money, on having been called in by him, had again been laid out. Now the effect of this conduct was to constitute him a debtor to his children, to the extent of these provisions under the settlement; and if he was a debtor to his children, then the dispositions of his will in their favour ought, in the juster view of their operation, to be regarded, not as putting the children to their election, but as satisfying their debt. And in cases of satisfaction, Lord Eldon assented to the propriety of admitting parol and extrinsic testimony to prove the intention, as a ground for the construction, where it is not admitted to graft any new or more enlarged meaning upon words, or to strain them out of their genuine and proper direc- [ 54] tion; but, by exhibiting the circumstances under which the testator made the dispositions, and to which they were meant to apply, to create an inference of law upon the whole will, perfectly agreeable to the words of the instrument. Where this extrinsic evidence (16) has been introduced to give to the words their proper subject, without violence to the grammatical sense, and in order to aid the construction of an instrument whose sense floats in ambiguity from the mere uncertainty as to the subjects to which it applies, the principle of admitting the evidence seems to meet the sentiments of the court, as expressed in Pole v. Lord

(16) See a case wherein the extrinsic evidence of papers and writings was very properly rejected, as being offered in direct opposition to the will, 1 Salk. 231, edit. Evans, 6th Ed. Bertie v. Falkland.