CHAPTER V.

PRESUMPTIONS OF LAW CONTINUED.

Of the Performance, and presumed Satisfaction of Covenants for Family Provisions; first, in Cases relating to Personal Property; secondly, in Cases relating to Real.

LORD THURLOW is reported to have said, that between cases of performance, and cases of satisfaction, in regard to covenants, he was at a loss to make any broad and useful distinction; and that in both the governing principle was the covenantor's intention (a). A distinction, however, has in this respect always obtained. The assertion, that cases of performance are to be determined by reference to the intention, is denied. That, it is alleged, is to

be consulted only in cases of satisfaction. And the rule seems now to be so settled: the inquiry, in cases of the former description, invariably proceeding thus; Has the identical act, which the party covenanted to do, been done? in the latter; Was the thing done, intended as a substitute for the thing convenanted? The one is a question of fact; the other only of intention (b).

(a) See 2 Bro. C. C. 395.

(b) See 1 Swans. 219.

The common case of the constructive performance of covenants relative to personal property, is, where a widow, entitled under an agreement by her husband to a particular provision, becomes possessed, on his intestacy, of a distributive share in his personal estate; in such case he is held to have performed, through the operation of the law, what he had bound himself to do. The earliest decision on this subject is that of Blandy v. Widmore (a). There a husband had agreed, before marriage, to leave his wife, if she should survive him, 600/., and covenanted with trustees for payment of the money by his executors: he died without a will: and the widow's legal right, under the statute of distributions, was considered to be strictly a leaving, or payment, within the terms of the stipulation; she obtained specifically that for which she had contracted. This case has been followed ever since (b): and the rule thereby established is applied, as well to the instance of a virtual, as of an actual intestacy; where, for example, a testamentary disposition becomes inoperative by subsequent events (c). In a late case (d), the presumption was admitted, though the widow's distributive share did not equal what she claimed under the covenant. The husband had agreed to secure to her, on his death, a moiety of his whole personal pro

(a) 1 P. Wms. 324; 2 Vern. 709, S. C.

(b) Davila v. Davila, 2 Vern. 724; Lee v. Cox and D'Aranda, 3 Atk. 419; 1 Ves. 1, S. C. See also per Lord Hardwicke in Barrett v. Beckford, 1 Ves. 520, and in Prime v. Stebbing, 2 Ves. 411;

per Lord Alvanley, 2 Ves. jun. 464; and per Alexander C. B. 1 M'Clel. and You. 50.

(c) Goldsmid v. Goldsmid, 1 Swans. 211.

(d) Garthshore v. Chalie, 10 Ves. 1.

G

perty.

The third, to which she became entitled on his dying intestate, was held to go in part performance of the agreement.

The general principle, furnished by the preceding authorities, is, that where a man covenants to leave or give money or other personal property, at his death, to persons who, independently of that engagement, on account of the relation subsisting between them and the covenantor, and the rules of law attaching in the case of intestacy on that relation, take a provision out of his personal estate, such provision shall be accounted in performance, or part performance of the covenant; and the covenant shall be regarded as having been entered into with immediate reference to that circumstance (a). The ground, on which it is probable this principle originally rested, was the leaning which equity professes against double provisions (b). But to whatever origin referrible, the soundness of the doctrine has in latter times been much questioned. It was said, in one case, by Lord Eldon, that the argument on the other side, namely, that the covenant constitutes nothing more than an ordinary debt, and that after that is paid, a distinct claim, founded on the common law, then arises to the undisposed of residue,-would, if the case were new, be difficult to answer (c). And the late Master of the Rolls, Sir T. Plumer, also expressed himself to the like effect (d). But the ques

(a) See 10 Ves. 13; 1 Swans. 218, 219.

(b) See 3 Atk. 421; 1 Ves. 263,

(c) 10 Ves. 10.

(d) 1 Swans. 217.

tion having been set at rest above a century ago, both Judges held themselves to be bound by the rule.

Slight circumstances of difference between the provisions made, and covenanted to be made, are not enough to prevent the application of the rule. The cases which have been already cited show, that the circumstance of the property being acquired by operation of law, instead of the act and disposition of the party, or, of its being inferior in amount to that stipulated for, is unimportant. So with respect to the time of payment, though one, three, or six months, after the death of the covenantor, be the period named for that purpose in the contract, the fact of the distributive share being delayed to be paid until twelve months afterwards, will not affect the determination (a).

Before this part of our subject be dismissed, it is proper to notice two cases, which, though at first sight appearing to militate with the doctrine above stated, will be found, on nearer inspection, to have been decided on their peculiar circumstances. The first case alluded to, turned on the wording of a proviso. In a settlement made before marriage, the husband covenanted for payment of 10,000l. after his death, to trustees, for the benefit of his intended wife, and their children; with a proviso, that the sum thereby intended to be secured for the wife, should not bar her of what the husband might give or leave to her by

(a) Davila v. Davila, 2 Vern. 724; Blandy v. Widmore, 1. P. Wms. 324; Goldsmid v. Gold

smid, 1 Swans. 211; Lee v. D'Aranda, 1 Ves. 1; 3 Atk. 419; Garthshore v. Chalie, 10 Ves. 1.

deed, will, or otherwise. The husband died intestate; and in conformity with the literal construction of the proviso, it was determined, that, in addition to the 10,000l. the widow was entitled to her customary and distributive shares in the residue (a).

In the other case, the husband covenanted, that, shortly after his death, 6000l. should be paid to trustees, as to 15007. for the use of his wife absolutely, and as to the residue, in trust for her for life, remainder over. The husband dying intestate, his widow claimed to be entitled both to the 1500l. and to her distributive share of the personal estate; and Lord Loughborough decided in her favour. The decree was grounded on the circumstance of the covenant being entire, and, that as part of the 60007. engaged to be paid, that is to say, 45007., was not given to the wife absolutely, and could not, therefore, be taken to be satisfied by her distributive share, so neither could the remaining 1500l. (b).

In cases of the satisfaction of covenants as distinguished from performance, it was stated, that the intention of the party forms the only object of inquiry. Of these cases the characteristic circumstances are,first, an engagement to do a certain act; and, secondly, the performance of an act, which, though different from that contracted for, may possibly have been intended in satisfaction of the engagement. The question, therefore, to be determined is, whether the act done was or

(a) Kirkman v. Kirkman, 2 Bro. C. C. 95.

(b) Couch v. Stratton, 4 Ves. 391. See on this case, 10 Ves. 15.