Smith v. Marshall

1 Root 159

Opinion

By the Court.

By the note’s being executed and delivered to Barber with instructions to him to deliver it to said Phila after said Daniel’s death, she became interested in it; and said Daniel could not vacate or revoke it by will or otherwise; and although said note did not take effect until the second delivery, yet upon the second delivery it had effect and operation from the date, and was a lien upon his estate, as much as any obligation, or any legacy in his will, which did not take effect until his death. The consideration was a good one; it was the love and affection he had for his natural daughter, given for her support, and advancement in life, and to compensate as far as was in his' power, for the disadvantages accruing from the defect in her birth, of which he was the blamable cause. In all cases where a legacy is to be considered as a satisfaction for a debt, it must be for as great a sum as the debt, and of equal value at least.

The note is for £700 lawful money, payable on demand with the lawful interest; the sum given by the will is to be paid in articles of estate at inventory price, to be set out by distributors, without interest.

The two sums are totally different in their nature and value, given at different times, and by different instruments, and it is impossible they should be considered the same; or that payment of one should be a satisfaction for the other: Indeed had both sums been given by the will, they must have been considered distinct legacies, and both had effect.