*Columbia*

Heard before Chancellor Thompson.

easy, i.xx.wr..

#### James S. Guignard *vs.*William Mayrant.

A. being about to many, settled on his wife 5001. in lieu, of the fortune he expected to get by her. He afterwards died, leaving her a considerable legacy, expressly in lieu and bar of dower.

The court decreed that the legacy was not a satisfaction of the debt.

This case was argued before Chancellor Thompson? who delivered the following decree therein:

In consequence of a marriage intended to be solemnized between Peter Horry and Margaret Guignard. the said Peter Horry, on the 9th February, 1793, executed a,marriage settlement, wherein it was stipulated, that he should settle on the said Margaret, the sum of five hundred pounds sterling, in lieu ofthe fortune and property of the said Margaret, which amounted to that sum and upwards, and further covenanted and agreed, thatthc said sura should be paid into the hands of Win. Mayrant and George Joor, for such uses, and upon such trusts, as were therein after mentioned. And it was further covenanted and agreed, that the said trustees, and the survivor of them, &c. should permit the said Peter and Margaret during their joint lives, to have, receive and take to their own proper use and behoof, the same and the issues thereof ^ with a further power to the said Margaret, that in the event of a failure of issue, lawfully to be begotten between them, that she should have full authority to dispose thereof by her will.

On the 5th day of June, 1793, the said Peter Horry, fob the better securing the payment of the sum of five hundred pounds aforesaid, executed a mortgage of seventeen negroes to the said trustees. On the 7th day of February, 1815, the said Peter Horry executed his last will and testament, wherein lie devised to the said Margaret, lands and negroes to a much larger amount than the de($t created by marriage settlement.

*615The question therefore which arises in this case, is, whether the legacy is to be considered as an ademption of the bond.

The general rule laid down in the English author!ties, is, that where the legacy is equal to, or exceeds the debt, the court considers it as given in satisfaction thereof, but this general rule is so exceptionable, that although the courts are bound by it, they will lay hold of the most triyial circumstances to take a case out of it; as if the legacy and debt are not payable eodem tempore, or arc not ejusdem generis, &c.

FEB'Y 1816.

It is contended by the counsel for defendant, that the debt and legacy are not payable at the same time, inasmuch as where no time is montioned in a will for the payment of a legacy, it cannot be demanded under twelve months.

I do not consider this argument to hare much weight, for if the executors should refuse to pay both debt and legacy, one could be recovered by law as soon as the other; and it cannot be presumed that the testator, who was a very weak and ignorant man, could have known the legal operation of omitting to mention the time of payment.

Every case of this sort depends upon its own intrinsic circumstances, and where it cannot be plainly inferred from the will itself, that the testator intended that the legacy should go in satisfaction of the debt, I ■ shall consider myself warranted in departing from the general rule.

This case does appear to me to he very different from any referred to in the argument. By tiie marriage deed, the five hundred pounds is given for property to that amount or upwards. This, therefore, cannot be considered in the light of a gift, but an absolute purchase, making Peter Horry debtor, and the trustees creditors to that amount 5 and the will leaves no room for construction, as it emphatically says, that the legacy is in lieu and bar of dower, which if accepted, forms another, ami dtsiinet contract.

*616If I thought it necessary, I could also rely on the circumstance of the debt and legacy being different ia their nature, as one is for the payment of money and the other for lands and negroes.

I am of opinion, that the legacy and debt must both be satisfied, with interest on the debt from the death of the testator, and that the costs bo paid out of the estate of Peter Horry.

W, THOMPSON,

From this decree there was an appeal.

Mr. Starke for appellants, quoted 3 P. Wins. 354. Fowler vs. Fowler. 3 Atk. 98, Clark *vs.*Sewall.

Mr. *W.*F. Desaussurc argued for respondents, that when a particular object is expressed for a legacy, it cannot bo taken as a satisfaction of a debt. 10 Yes. .327, where the lord Chancellor (Eldon) said, *iS*though where a father has advanced to a child a portion upon marriage, it may be supposed, he intended to pay a debt, or satisfy a portion, I always understood th-at presumption was not warranted, where the father has said, what he means to *do;*and in one case, the name of which I do not recollect, lord Thurlow decided upon that ground alone, that he meant to satisfy something else.”

Here the legacy was given expressly in lieu and bar of dower.

The case of Haynes as. Mico, 1 Bro. 130, was also strongly relied on.

Stark for Appellants.

Blanding and Desaussurc for respondents.

After hearing the argument, the Court of Appeals made the following decree in April, 1806 :

It is ordered and decreed, that the decree of lh& Circuit Court be affirmed.

IIeNxiy W. Dbsaussuke,

Theodore Gaiixard,

Thomas Wattes,

Wadbs' Thompson.