Page:The English Reports v1 1900.pdf/1545

against the appellant, for an account of the residuary part of the testator's estate, and that the respondent might have his share thereof; and particularly, that he might be paid half the money due for principal and interest on the said bond.

On the 4th of July following, the appellant exhibited his cross bill against the respondent, praying that the said bond, which then was in the respondent's custody, might be delivered up to the appellant; and by this bill, and also by his answer to the original bill, the appellant alledged, that the testator had several times before the making his will declared to Mr. Charles Viner, who drew it, that be designed to give the appellant, for his own use and benefit, the whole money due on that bond; and that it was the testator's intention, by making the appellant one of his [610] executors, to discharge the said bond, that the appellant might have the whole benefit thereof to himself. And in these causes the appellant examined the said Charles Viner as a witness, who clearly proved such intention of the testator, and what discourses had passed between them relating thereto, before the testator's making his will. He also proved that this £3000 was originally secured by a joint bond from the appellant and his partner; and that to prevent the partner from taking any advantage of the benefit intended for the appellant, the testator, about three days before he made his will, delivered up the joint bond to the appellant, and took his single bond for the whole sum.

On the 6th of December 1733, both causes were heard before the Master of the Rolls, who was pleased to allow the deposition of the said Charles Viner to be read, though objected to by the respondent; and decreed, that the respondent's bill in the original cause should be dismissed; and upon the appellant's cross-bill, decreed, that the said bond should be delivered up to the appellant to be cancelled.

From this decree the respondent appealed, and these causes were heard before the Lord Chancellor Talbot, on the 15th and 16th of October 1734, who was pleased to declare, that the money due on the £3000 bond entered into by the appellant to the testator, ought to be considered as part of the residue of the testator's estate, which, by his will, was devised equally between the respondent and the appellant, his executors; and that the respondent was entitled to a moiety of the money due on the said bond: and his lordship therefore decreed, that it should be referred to the master to take an account of what was due for principal and interest on the said bond, and what the moiety thereof amounted to; and that the appellant should pay to the respondent what the master should certify to be due for a moiety of the said principal money and interest; and that thereupon the respondent should deliver up the said bond to the appellant.

And from this decree the appellant appealed, insisting (J. Willes, D. Ryder), that the parol evidence was very proper to be read, and was a sufficient ground to bar the equity of the respondent's bill; for that by the rule of law, if an obligee makes the obligor one of his executors, this act of the testator extinguishes the debt; for the debt consisting only of a right to recover it by way of action, which one executor cannot maintain against the other; the testator, by making the debtor one of his executors, does thereby discharge the action, and consequently discharges the debt. That it was proved beyond contradiction, that the testator not only knew the rule of law in this respect, but intended it should operate for the appellant's benefit; and therefore a court of equity ought to permit it to take place in support of the testator's intention, which is principally to be regarded in the construction of wills; and where the testator's intent to discharge the debt is [611] clear and evident, it is not material whether he does it by express words, or by an act in law amounting to the same thing. That the respondent's case was very different from the case of a creditor, in respect of whom this debt would be considered as assets in the hands of the executor; because a testator cannot by his will extinguish a debt to the prejudice of creditors; but, with respect to a residuary legatee, the testator has an absolute power over his estate, and may extinguish a debt by act in law, as well as by express words. That as the respondent's equity arose only from a presumption that the testator did not intend by act in law to extinguish the debt, it was apprehended that the executor might encounter and rebut this equity, by giving parol evidence that the testator's intent was agreeable to the law, and unextinguishment in equity as well as law of the debt in favour of the executor; and there are many instances in the courts of equity where parol evidence has been allowed to be read in order to support the construction of the law, and rebut an equity that might otherwise arise against the legal operation of a deed or will.