sonableness of the rule has been seriously questioned.89 It is viewed with disfavor and slight circumstances are deemed sufficient to take the case out of the general rule.9 The mere fact that a testator leaves a legacy to a creditor without mentioning his indebtedness to him, should not always create the presumption that the legacy was intended to satisfy the debt. Indeed, it would seem more probable that, if the testator intended the legacy as a satisfaction of the debt, he would in some way have referred to it in his will, and silence would create the impression that satisfaction was not intended.91 The pre

1915B, 1156, 165 S. W. 665; Strong v. Williams, 12 Mass. 391, 70 Am. Dec. 81; Allen v. Merwin, 121 Mass. 378; Gilliam v. Brown, 43 Miss. 641; Adams v. Adams, 55 N. J. Eq. 42, 35 Atl. 827; Reynolds v. Robinson, 82 N. Y. 103, 37 Am. Rep. 555; Horner v. McGaughy, 62 Pa. St. 189.

89 "But, although the rule, as to a legacy being an ademption of a debt, is now well established in equity, yet it is deemed to have so little of a solid foundation, either in general reasoning, or as a just interpretation of the intention of the testator, that slight circumstances have been laid hold of to escape from it, and to create exceptions to it."-Story, Eq. Juris., § 1122.

"This general rule, being based upon artificial reasoning, has been distinctly condemned by able judges. It is not favored by courts of equity; on the contrary, they lean strongly against the presumption, will apply it only in cases

which fall exactly within the rule, and will never enlarge its operation. In consequence of this strong leaning against the presumption, it is well settled that courts of equity will take hold of very slight circumstances connected with any particular case, and will regard them as sufficient to remove the case from the operation of the general rule, and to prevent the presumption of a satisfaction from arising."-Pomeroy, Eq. Juris. (3rd ed.), §§ 527, 528.

90 Nicholls v. Judson, 2 Atk. 300; Thynne v. Glengall, 2 H. L. Cas. 131, 136; Edelen v. Dent, 2 Gill & J. (Md.) 185; Strong v. Williams, 12 Mass. 391, 70 Am. Dec. 81; Van Riper v. Van Riper, 2 N. J. Eq. 1; Perry v. Maxwell, 17 N. C. 488; Crouch v. Davis, 23 Gratt. (Va.) 62.

91 Buckner v. Martin, 158 Ky. 522, L. R. A. 1915B, 1156, 165 S. W. 665.

Mere proof that the payee of a note left a legacy to the maker

sumption, however, mentioned under the general rule is equitable and not legal;92 and the general rule applies only where no presumption to the contrary can be drawn from the face of the will.93

Where the general rule applies, the legacy being considered as a satisfaction of the debt, the creditor has always the right of election; he may accept the legacy, in which event he waives his claim against the estate; or he may stand on his debt, in which event he takes no benefit under the bequest. The same situation would result in a case where the testator in express terms gave the legacy to the creditor in satisfaction of the debt.94

§ 729. The Same Subject: Exceptions to General Rule.

There are many exceptions to the general rule stated in the preceding section. If a legacy to a creditor is pay

thereof is not proof of the extinguishment of the debt pro tanto or otherwise.-Lynch v. Lyons, 131 App. Div. 120, 115 N. Y. Supp. 227; affirmed in 197 N. Y. 595, 91 N. E. 1116.

A provision in a will, "I desire that my present crop be appropri ated to the payment of the debt due J. T. S., as he has been kind to me, and balance to my other creditors," is not a legacy to the named creditor of an amount equal to his debt against the testator. It is the expression of the desire of the testator that in the payment of his debts from a specific fund, the indebtedness of the named creditor shall first be extinguished. -Thompson v. Stevens, 138 Ga. 205, 75 S. E. 136.

a

Under art. 1641, Rev. Civ. Code, declaring that a legacy to a servant shall not be deemed to be in compensation of his wages, legacy of $100 to one whose wages for nursing and attendance amounted to $1500, for which adequate compensation was to be made by will, which was not done, was held not made in payment of wages, but as a gift.-Succession of Palmer, 137 La. 190, 68 So. 405. 92 Cloud v. Clinkinbeard, 8 B.. Mon. (Ky.) 397, 48 Am. Dec. 397. 93 Van Riper v. Van Riper, 2 N. J. Eq. 1.

94 Richardson v. Greese, 3 Atk. 65, 68; Shadbolt v. Vanderplank, 29 Beav. 405; In re Fletcher, L. R. 38 Ch. Div. 373; Parker v. Coburn, 10 Allen (92 Mass.) 82; Strong v.

able at a different time from the debt as, for example, where the debt is payable at the testator's death and the legacy is payable at a specified time thereafter, satisfaction of the debt is not presumed.95 If the legacy is uncertain and is made to depend upon a contingency, the presumption of satisfaction does not apply.96 Nor does the general rule prevail where the legacy is given for a different interest or is of a different nature from the debt.97 For instance, a devise of land will not be presumed to be in satisfaction of a money obligation, or vice versa.98 If the legacy given be less than the indebtedness, it will not be regarded as a satisfaction thereof;99 nor will the gen

Williams, 12 Mass. 391, 7 Am. Dec. 81; Van Riper v. Van Riper, 2 N. J. Eq. 1; Horner's Exr. v. McGaughy, 62 Pa. St. 189.

95 Clark v. Sewell, 3 Atk. 96; In re Rattenberry (Ray v. Grant), L. R. (1906) 1 Ch. Div. 667, 4 Ann. Cas. 457; Fetrow v. Krause, 61 Ill. App. 238; Cloud v. Clinkinbeard, 8 B. Mon. (Ky.) 397, 48 Am. Dec. 397; Buckner v. Martin, 158 Ky. 522, L. R. A. 1915B, 1156, 165 S. W. 665; Edelen v. Dent, 2 Gill & J. (Md.) 185; Stone v. Pennock, 31 Mo. App. 544; Van Riper v. Van Riper, 2 N. J. Eq. 1; Phillips v. McCombs, 53 N. Y. 494; Perry v. Maxwell, 17 N. C. 488; Baptist Female University v. Borden, 132 N. C. 476, 44 S. E. 47, 1007.

96 Tompson v. Wilson, 82 Ill. App. 29; Cloud v. Clinkinbeard, 8 B. Mon. (Ky.) 397, 48 Am. Dec. 397; Buckner v. Martin, 158 Ky. 522, L. R. A. 1915B, 1156, 165 S. W. 665; Edelen v. Dent, 2 Gill & J.

(Md.) 185; Strong v. Williams, 12 Mass. 391, 7 Am. Dec. 81.

97 Richardson v. Elphinstone, 2 Ves. Jun. 463; Fetrow v. Krause, 61 Ill. App. 238; Huston v. Huston, 37 Iowa 668; Cloud v. Clinkinbeard, 8 B. Mon. (Ky.) 397, 48 Am. Dec. 397; Buckner v. Martin, 158 Ky. 522, L. R. A. 1915B, 1156, 165 S. W. 665; Waters v. Howard, 1 Md. Ch. 112; Strong v. Williams, 12 Mass. 391, 7 Am. Dec. 81.

98 Bellasis v. Uthwatt, 1 Atk. 428; Van Riper v. Van Riper, 2 N. J. Eq. 1.

A devise of 40 per cent of real property appraised at $750,000 to the holder of the testator's note for $35,000 does not discharge the debt, because the devise is not of the same nature as the debt.Bennett v. Piatt, 85 N. J. Eq. 436, 96 Atl. 482.

99 Gee v. Liddell, 35 Beav. 621; Fetrow v. Krause, 61 Ill. App. 238; Huston v. Huston, 37 Iowa 668;

eral rule as to satisfaction prevail when the debt is unliquidated,1 or is a trust debt, or was contracted after the making of the will.3

Where there is an express direction in a testator's will for the payment of his debts, the general rule as to satisfaction can not prevail, for the testator has thereby directed the payment of the debt as well as the payment of the legacy.⭑

§ 730. The Term "Advancements" Defined: Gifts and Debts Distinguished.

An advancement is the transfer of money or property by the owner to another to whom he stands in loco

Mitchell v. Vest, 157 Iowa 336, 136 N. W. 1054; Cloud v. Clinkinbeard, 8 B. Mon. (Ky.) 397, 48 Am. Dec. 397; Buckner v. Martin, 158 Ky. 522, L. R. A. 1915B, 1156, 165 S. W. 665; Owings v. Owings, 1 Harr. & G. (Md.) 484; Strong v. Williams, 12 Mass. 391, 7 Am. Dec. 81; Gilliam v. Brown, 43 Miss. 641; Rusling v. Rusling, 42 N. J. Eq. 594, 8 Atl. 534; Reynolds v. Robinson, 82 N. Y. 103, 37 Am. Rep. 555; Harris v. Rhode Island Hospital Trust Co., 10 R. I. 313; Pitts v. Van Orden, (Tex. Civ. App.) 158 S. W. 1043; Newell v. Keith, 11 Vt. 214.

1 Van Riper v. Van Riper, 2 N. J. Eq. 1; Horner v. McGaughy, 62 Pa. St. 189.

2 Cloud v. Clinkinbeard, 8 B. Mon. (Ky.) 397, 48 Am. Dec. 397; Buckner v. Martin, 158 Ky. 522, L. R. A. 1915B, 1156, 165 S. W. 665; Pitts v. Van Orden, (Tex. Civ. App.) 158 S. W. 1043.

3 Glover v. Patten, 165 U. S. 394, 41 L. Ed. 760, 17 Sup. Ct. 411; Heisler v. Sharp, 44 N. J. Eq. 167, 14 Atl. 624; Matter of Enos, 61 Misc. Rep. (N. Y.) 594, 115 N. Y. Supp. 863; Williams v. Crary, 4 Wend. (N. Y.) 443; Baptist Female University v. Borden, 132 N. C. 476, 44 S. E. 47, 1007; Sullivan v. Latimer, 38 S. C. 158, 17 S. E. 701; Crouch v. Davis, 23 Gratt. (Va.) 62.

4 Glover v. Hartcup, 34 Beav. 74; Fetrow v. Krause, 61 Ill. App. 238; Mitchell v. Vest, 157 Iowa 336, 136 N. W. 1054; Cloud v. Clinkinbeard, 8 B. Mon. (Ky.) 397, 48 Am. Dec. 397; Buckner v. Martin, 158 Ky. 522, L. R. A. 1915B, 1156, 165 S. W. 665; Edelen v. Dent, 2 Gill & J. (Md.) 185; Strong v. Williams, 12 Mass. 391, 7 Am. Dec. 81; Deichman v. Arndt, 49 N. J. Eq. 106, 22 Atl. 799; Bennett v. Piatt, 85 N. J Eq. 436, 96 Atl. 482; Matter of Cole, 85 Misc. Rep. (N. Y.) 630, 148 N. Y. Supp. 1099; Reynolds v.

parentis, the transfer being made in anticipation of the share which the donee would inherit from the donor's estate in the event of his dying intestate, and intended to be deducted therefrom. Strictly speaking, the term "advancement" is applicable only in the case of the parent dying intestate, whereas ademption has to do with legacies. The term is often used in decisions interchangeably with gifts, or advanced payments, a close scrutiny of the context being necessary to ascertain the meaning intended. An advancement differs from a gift since as to the latter the donor need not stand in loco parentis to the donee, nor is a gift necessarily charged against the inheritance of the donee as is the case with an advancement. And although an advancement is charged against the donee, yet it differs from a debt in that no repayment can be enforced during the lifetime of the donor, and after his death his estate makes collection only by deducting the advancement from the inheritance of the donee.s

Robinson, 82 N. Y. 103, 37 Am. Rep. 555; Baptist Female University v. Borden, 132 N. C. 476, 44 S. E. 47, 1007; Harris v. Rhode Island Hospital Trust Co., 10 R. I. 313.

5 Kramer v. Kramer, 201 Fed. 248, 119 C. C. A. 482; Weston v. Johnson, 48 Ind. 1; Wallace v. DuBois, 65 Md. 153, 4 Atl. 402; Carmichael v. Lathrop, 108 Mich. 473, 32 L. R. A. 232, 66 N. W. 350. 6 Bouvier's Law Dict.; Black's Law Dict.; Dillman v. Cox, 23 Ind. 440; Clark v. Willson, 27 Md. 693; In re Lear's Estate (Tompkins v. Lear), 146 Mo. App. 642, 124 S. W. 592; In re Miller's Appeal, 31 Pa.

St. 337; Rickenbacker v. Zimmer man, 10 S. C. 110, 30 Am. Rep. 87; Cawthon v. Coppedge, 1 Swan (Tenn.) 487.

7 Cawlfield v. Brown, 45 Ala. 552; Davis v. Whittaker, 38 Ark. 435, 449; Johnson v. Belden, 20 Conn. 322, 324; McCormick v. Hanks, 105 Iowa 639, 75 N. W. 494; Turpin v. Turpin, 88 Mo. 337, 340; Burnham v. Comfort, 37 Hun (N. Y.) 216, 220.

In Georgia and Maryland it is only in cases of intestacy that the doctrine of advancement applies.Marshall v. Rench, 3 Del. Ch. 239; Wallace v. Owen, 71 Ga. 544.

8 In re Hall, 14 Ont. 557; Her