Clarke vs. Bogardus, 12 Wend. 67

By the Court, Savage, Ch. J. The only question is, whether the legacy given to the wife of the defendant and to her children and their legal representatives is a discharge of the defendant’s bond. I know of no rule applicable to this case, except the general rule in the construction of wills, to wit, that the intention of the testator is to be sought for in the will itself, and carried into effect. The doctrine of a legacy, operating as payment of a debt, applies only where the testator is the debtor and the legatee is the creditor.

The rule laid down in the books on that subject is, that a legacy given by a debtor to his creditor, which is equal to or greater than the debt, shall be considered as a satisfaction of it. Toller’s Law of Ex’rs, 336. To this rule there are many exceptions. This subject has been discussed by this court in the case of Williams v.

Crary, 5 Cowen, 368, 8 id. 246, and 4 Wendell, 449, where I came to the conclusion, that the exceptions to the rule are so numerous that the rule should be stated differently, to wit, that a legacy shall not be deemed a satisfaction of a pre-existing debt, unless it appears to have been the intention of the testator that it should so operate. I shall not again go into an examination of that doctrine; it has no application here.

The testator was not the debtor, but the creditor; and the rule in such cases is, that if a legacy be left to the testator’s debtor, the debt shall be deducted from the legacy, for the legatee’s demand is in respect of the testator’s assets without which the executor is not .liable, and therefore the legatee in such case is considered by a court of equity to have so much of the assets already in his hands as the debt amounts to, and consequently to be satisfied pro tanto; for there "can be no pretence to say, because the testator gives a legacy to his debtor, it is an argument to show that the testator meant to remit the debt.

Toller, 338. Mr. Toller cites Rankin v. Barnard, 5 Maddock’s R. 32, to prove that where a legacy was left to the wife of A., who was largely indebted to the testatrix, and A. became a bankrupt, and his wife afterwards died without having asserted any claim in respect to the legacy, and the assignees claimed it, it was held that the executors of the testatrix were entitled to retain the legacy in part discharge of the debt due to the testatrix. This question also arose in Rickets v. Livingston, 2 Johns.

Cas. 98, where Radcliff. justice, says; “ A legacy to one, who at the date of the will is indebted to the testator, does .^-.elease or extinguish the debt, unless it appears to be so intended on the face of the will.” On the face of the will in this case, neither the defendant (Clarke)or the bond in question is mentioned.

The legacy is given to the daughter of the testatrix: not as the extinguishment of a debt, but as evidence of the love and affection of the testatrix to a daughter who was well provided for, and in case of her death, to her children and their representatives, as if she intended that the husband should have no control over it. I am clearly of opinion that the superior court decided correctly, and their judgment must be affirmed.