Whenever a certain part of a claim is admitted to be just and due, the debtor should tender the amount admitted, in gold or silver, or bank-notes, to the creditor or his attorney, in the presence of a witness, and if the court decide that the disputed portion shall not be paid, the debtor will be relieved from costs. Care, however, must be taken to express distinctly the grounds of the tender, li niting it to the unobjectionable part of the claim, and to make the tender without any qualification or conditions. A tender for more than the amount that is due is believed to be good for what is actually due, but if accompanied with a requirement of change or "of the balance," it is not good.

324. Is a receipt for money paid, or "in full of all demands," conclusive evidence of payment?

A receipt is an exception to the general rule as to contracts in writing, and is always open, not only to explanation, but even to contradiction, by extrinsic evidence. A receipt is strong evidence of payment, but not conclusive, and either party may show that the amount was more or less than the sum stated. Even if it be "in full of all demands," it is still open to explanation or denial by evidence. A release under seal should be taken where evidence of payment is required that is final and conclusive.

325. What is the law in regard to appropriation of payments where several debts are owing to the same creditor?

The general rule of law is, that a debtor, owing several debts to the same creditor, may apply the payment, at the time of making it, to which debt he pleases. If he makes a general payment without appropriating it, the creditor may apply it, as he pleases. And where neither party appropriates it, the law will apply it according to its own

As a

view of the intrinsic justice and equity of the case. general rule, in case of divers claims, courts will apply a payment to those debts for which the security is most precarious. Where there is a running account, in the absence of circumstances to show a different intention, they will apply it to the items of debt antecedently due in the order of the account. If one debt is illegal, and the other is lawful; or, if one debt is not yet payable, but the other is already overdue, a general payment will be ascribed to the latter; and if one debt bears interest, and the other does not, the payment will be applied to the one bearing interest.

If A, says a recognized authority, owes a debt to B on B's own account, and another debt to B as trustee for somebody, and A pays B a sum of money without specifying for which account, B cannot apply it all to the debt due himself; but must divide it between that debt and the trustee debt in proportion to their respective amounts; because it is his duty as trustee to take as good care of the debts due to him for another, as of those due to him on his own account.

CHAPTER XXIII.

HOW TO MAKE A WILL.

"People are and will be careless, and they are and will be presumptuous as to their knowledge of the law. In these cases the penalty falls not upon them, but upon their posterity. Every one either is, or hopes to be, some day in a position to make a will, and there is, perhaps, no one who does not live in hope of some day receiving a legacy. We know no greater benefit, in a small way, to the population generally, than to have facilities offered to them to make a will which shall reduce to a minimum the chances of its becoming the parent of a law suit.”—ANON.

326. HO may make a valid will?

Every person of sound mind, and of the proper, age may make a will. A mar

ried woman, however, cannot, unless the statute law of the State in which she resides gives her the privilege, or unless in relation to trust property, whereof the trust or marriage settlement reserves to her this power. One must be of full age to devise real estate, but minors may bequeath personal property in most of the States, and the usual limitation of the age for such bequest is eighteen years for males, and sixteen for females.

327. Should a person write his own will, or employ a lawyer to do it?

In all cases where it is practicable, and the estate and bequests are not of the simplest kind, he should employ a lawyer, or a person accustomed to write wills. "Nearly

half the business of the courts of law," said the London Times, some years since, "hangs upon blunders made by testators. It is not once or twice in a hundred cases, but it is a normal fact that a laborious, stupid, thrifty manand he is the man who never fails in the art of moneymaking-spends his life in rolling up a huge snow-ball of wealth, and then, in his stupid way, makes a blundering will."

"If you wish to tie up your property in your family," says Sugden, "you really must not make your own will. It were better to die without a will, than to make one which will waste your estate in litigation to discover its meaning. The words 'children,' 'issue,' 'heirs of the body,' or 'heirs,' sometimes operate to give the parent the entire disposition of the estate, although the testator did not mean any such thing. They are seldom used by a man who makes his own will without leading to a lawsuit. It were useless for me to attempt to show you how to make a strict settlement of your property-and therefore I will not try. I could, without difficulty, run over the names of many judges and lawyers of note, whose wills, made by themselves, have been set aside, or construed so as to defeat every intention which they ever had. It is not even a profound knowledge of law which will capacitate a man to make his own will, unless he has been in the habit of making the wills of others. Besides, notwithstanding that fees are purely honorary, yet it is almost proverbial, that a lawyer never does anything well for which he is not feed. Lord Mansfield tells a story of himself, that, feeling this influence, he once, when about to attend some professional business of his own, took several guineas out of his purse and put them into his waistcoat pocket, as a fee for his labor,"

328. Who should be remembered in a will?

The law, both in England and America, gives a widow certain rights in her deceased husband's estate which cannot be defeated even by a will; but where it is purposed to give the widow a provision different from that prescribed by the law it should be stated in the will to be in lieu of dower, and then she can choose between the provision of the law and that of the will. Children have no legal claim to their father's property, contrary to his manifest wishes, not even to a shilling, as is commonly supposed; but if children are not mentioned or provided for in a will, the law presumes they were forgotten; and it gives to any such child the same share as if there were no will. The same rule applies quite generally to the issue of a deceased child. If the child were provided for in the lifetime of the father, the law generally will not presume he was forgotten, but it is best, in order to guard against any question of the kind, to name the children, and say that the omission to give them anything by the will was intentional.

[It is of course the duty of every man who makes a will to provide first of all for those who would inherit his property by law if he made no will, but it is not wise to endow children by testamentary bequests with more than an independence. Inherited wealth is rarely a blessing, and the sons of rich men generally end where their fathers began. But the object in making a will is mainly to remember those whom the law does not provide for, and here a testator's attention should be directed first to those who are likely to suffer hardship by his decease. If he have natural or adopted children unprovided for, these by every principle of justice are entitled to a liberal and most careful testamentary remembrance. No imaginable condition can be more unfortunate than that of those who, having been