1

h

man covenants to do an act, and he does that Constructive performance by which may be converted into a performance of his a collateral act. covenant, he shall be presumed in equity to have done it with that intention, Thus where one covenanted by his marriage settlement with the trustees to pay to them two several sums, amounting to 2000l. to be laid out in land, to be settled to the uses of the marriage, and did not pay the same, but after having purchased an estate for 21507. died in-. testate, without having made any settlement of such estate, though it was strongly contended, that as the husband had covenanted to pay the money to the trustees, he could scarcely mean a performance when he purchased land himself, yet his honour declared, after admitting that if the case had been res integra, he should have thought the reasoning made use of entitled to great consideration, that the case was within the principle of Lechmere v. the Earl of Carlisle.

The construetive performance

must correspond

stipulated bene

But it seems a settled rule, that to constitute a performance, the eventual benefit must correspond in time with the period at which the stipulated bene-intime with the 'fit was to take place: thus where a testator, being fit, under a bond to leave 3001. to be paid in one month after his death, bequeathed a legacy of 5004. to be paid in six months, this was held to be no performance1.

Snowden v. Snowden, 3 P. Wms. 227, in Notis.

1 Haynes v. Mico, 1 Bro. 129, and see Richardson v. Elphinstone, 2 Vez. jun. 464.

The true reason of the difficulty which has been so often confessed, of separating cases of performance from cases of satisfaction, seems to have arisen from the want of annexing a just idea to the word satisfaction, which is, in truth, a term of loose and general signification, according to the use which has been always made of it in courts of equity, and has been adopted popularly to express the final and substantial effect, as well of cases of performance as of cases of election and cases of ademption or revocation, which are the terms truly expressive of the means and operations of law, by which that result described by the word satisfaction is produced. I hazard the opinion with great timidity and respect, but I cannot help thinking that it will be difficult, if not impossible, to suggest an example of a pure case of satisfaction, if we treat the term as having an exclusive and appropriate sense, and not rather as generically comprehending certain specific varieties of equitable rules and technical consequences.

Every case upon a will made by a person under a binding contract, unless it be considered as an actual performance, can only amount to a case of election; for how can a testator by his will forcibly substitute another thing in the place of that thing which he was bound by his contract to do, or how can such a substitutionary disposition have any other operation than by giving a better thing in lieu of the thing contracted for, to engage and ensure the choice of the devisee or legatee, on highly presumable grounds of

preference? If such a case is termed a case of satisfaction, it is because such is the final consequence of an election, for it may be presumed almost as certain that where a better is proposed in the place of an inferior benefit, the condition will be accepted. In strictness, therefore, this is a pure case of election, or of satisfaction working by election (2).

1

Payment is performance. Thus where a legacy is bequeathed to a creditor, equal to or exceeding the amount of the debt, the debt is considered as meant to be answered by or included in the gift. This is therefore a satisfaction by performance: and while this part of the subject is before us, it may be of importance to remind the reader that there can be no performance pro tanto by a legacy of a smaller sum, whereas according to the case of Lechmere v. Lord Carlisle, above cited, a covenant to make a certain provision may be partially satisfied by an inceptive performance.

(2) It is a rule that no one can take under a will, and at the same time do any thing to defeat any of its dispositions. If a man claims by virtue of it he must admit it in toto; but if a will affects to give away, or modify another's right, without bestowing upon him a substituted benefit of equal or greater amount, the person having such right may of course maintain it against the will, though by so doing he gives up all advantage under the will. 1 Vez. 122, Ca. Temp. Talb. 176, 2 Atk. 629, 2 Vez. 628, for references upon the doctrine of election, 9 Vez. jun. 533, N. (a) and see 10 Vez. jun. 589, Blunt v. Clithero.

Where a man having granted a benefit or provi sion by a voluntary and revocable instrument, by a subsequent instrument makes an advancement of some other bounty, or gratuity, by way of provision, to the same object (3), and the circumstances of the case warrant the inference that the second provision was meant to take place of the first, this is not properly a case of satisfaction. A satisfaction it ultimately may be, but the true operation of it is to revoke or adeem the legacy. Neither is the term satisfaction expressive, in any other sense than as a discharge, of its ultimate effect in equity, since a smaller sum given in the life-time may, under circumstances, annul a greater provision by will*:

But if a legacy of a larger sum can be wholly set aside by the substitution of a less, this cannot be called a performance, still less a satisfaction by performance, and less still a satisfaction by election; but there seems to be no impropriety or confusion of terms in calling it a satisfaction, (meaning only. thereby a discharge), by revocation or ademption. And this phrase is the more appropriate, because it is certainly not in strictness of legal language an ademption or revocation simply: it is a satisfaction

* Vide Hartop v. Whitmore, 1 P. Wms. 680, Shudall v. Jekyll, 2 Atk. 517, Rosewell v. Bennett, 3 Atk. 77.

(3) For some useful distinctions on this subject, the reader will do well to look into the case of Shudall v. Jekyll, 2 Atk. 517.

working by way of revocation, for in truth it operates as a revocation on a principle of equitable presumption',

It does not redound much to the accuracy of a science to multiply terms, and apply different rules to them, without first distinguishing between the different ideas to be implied by those terms: and, therefore, until the word satisfaction' has a more appropriate and exclusive sense, it will only perplex the subject to talk of cases of satisfaction as distinguished from cases of performance, cases of election, and cases of revocation. The idea which is meant to be conveyed by satisfaction, simply used, is neither descriptive of cases of performance, cases of election, nor cases of revocation. It is not descriptive of performance, because it is not used to signify the identical, or substantial, or virtual effectuation of the thing contracted to be done, but the substitution of one thing for another. And as there are only two sorts of cases, wherein a substitution can take place, viz. where the thing to be done is voluntary, and where it is obligatory or resting in contract, in the former of which cases, the satisfaction operates by revocation, in the other, by putting the party benefited to his election, the final consequence only of each operation is properly expressed by the word satisfaction, as a sort of genus to which these cases are referible as the specific varieties.

Vide Ellison v. Cookson, 1 Vez. jun. 100, 7 Vez. jun. 516.