
    Joseph Lyman, Esq., Judge of Probate, versus Israel Clark and Others.
    A, having a demand on an executor for a legacy of SOL, and also another demand for twenty-five dollars, being her distributive share of a legacy given to her deceased sister, executes a release, with the others entitled to alike distributive share; in which, after reciting that they had received of the executor twenty-five dollars each, “ as our proportion,” &c., they acquit and discharge the executor from all demands on him, in virtue of the will, &c.; it was holden that the release had no other operation than to discharge the executor of the par ticular demand mentioned, and that A was still entitled to .her legacy of 501.
    
    This was an action of debt upon a bond executed by the defend ants, as sureties for Eleazer Clark, conditioned for his faithful dis charge of the trust of executor of the last will of Caleb Clark, Esq., deceased, dated the 4th day of December, 1792. It appeared that the action was brought for the benefit of Esther, the wife of one Wing, to whom a legacy of fifty pounds was bequeathed in and by the said last will.
    The defendants, after oyer of the bond and condition, plead in bar a release by the said Esther, jointly and severally with others, of all demands, against the said Eleazer, as he was executor as aforesaid.
    *The plaintiff prays oyer of the said release, which is as follows, viz.: “ This may certify that we, Hannah Clark, mother of Hannah Clark, Jun., late deceased, Samuel Clark, Mary Smith, Phinchas B. Clark, Caleb Clark, Roger Leonard, and Jane Leonard, wife of the said Roger, Joshua Clark, and Esther Clark, have this day received of Eleazer Clark, executor of the last will and testament of Caleb Clark, Esq., deceased, twenty-five dollars, each of us, as our proportion to the estate that was left the said Hannah Clark, Jun., deceased, by the said Caleb Clark, Esq., deceased, in his said last will and testament. And we do, each one for ourselves, our executors, and administrators, and assigns, hereby acquit and discharge the said Eleazer Clark from all demands we have or may have on him by virtue of the said Caleb’s last will. In testimony of which, die.; dated March 29, 1805.”
    The plaintiff then demurs generally to the defendants’ plea in bar, and the defendants join in demurrer.
    [There was a second plea in bar, in which the same release is pleaded as the several release of the said Esther; to which the plaintiff, upon oyer of it had, replied that the same was obtained by fraud and imposition, which being traversed by the defendants, and issue joined thereon, a verdict had been returned in favor of the defendants.]
    The plea in bar being adjudged bad, as not being an answer to the whole condition of the bond, and the defendants praying to be heard in chancery, the plaintiff moved for execution in favor of Wing and wife, for a legacy of fifty pounds, lawful money, given to the wife by the last will of Caleb Clark, the testator.
    
      Ashman,
    
    for the defendants, relied on the general release recited above as proof that the legacy had been paid, and the executor discharged therefrom, and he argued that the instrument manifestly consisted of two distinct parts. The first was an acknowledgment of the several proportions of a legacy given to H. Clark, Jun., received by the releasors * respectively ; the other was a full release and discharge of all demands which ‘ they had upon the executor; and all the parts of a deed ought to have operation, if they can have by any rational and consistent interpretation.
    
      Mills for the plaintiff.
    The release contains but one operative part. The first is a mere recital, and contains no words of discharge. The intention of the parties is first and chiefly to be looked to in the construction of any instrument. If this is a settled rule at law, it ought certainly to be adhered to in an equitable inquiry, as the present is.
    It is laid down in Baconh Abridgment,  and the position is abundantly supported by the authorities there cited, “ that where there are general words all alone in a deed of release, they shall be taken most strongly against the releasor; but where there is a particular recital in a deed, and then general words follow, the general words shall be qualified by the particular recital.” The case of Cole vs. Knight 
       was extremely like the one at bar. The defendant to a scire facias upon a judgment of 6000l recovered by the plaintiff’s testator against the defendant’s testator, pleaded a release from one of the plaintiffs, by which he acknowledged to have received of the defendant, as executor, &c., the sum of 51., being a legacy given to him by the defendant’s testator, and then in general words released the defendant of the legacy, and of all actions, suits, and demands, whatsoever, against him as executor, &c. The plaintiff demurred, and had judgment. And a case is there cited from 2 Roll. Abr. 409. “ If a man should receive 10l., and give a receipt for it, and doth thereby acquit and release the person of all actions, debts, duties, and demands, nothing is released but the 101.; because the last words must be limited by those foregoing.” The cases of Wright vs. Russell, 
       and Barclay & Al. vs. Lucas, 
       go to show that the court will vary the construction of instruments in order to meet the intent of the parties. The case of Butcher vs. Butcher 
       is stronger * than the one at bar. There all demands were mentioned in the recital as well as in the operative part of the release; yet the court restrained the operation of the release, and held it to exclude a particular demand.
    
      Ashmun in reply.
    The case at bar is distinguishable from all those cited by' my brother Mills. The general rule is, that the intent of an instrument is to be collected from the" instrument itself, provided the intent be a lawful one. In the release before the Court, each person acknowledges to have received a certain sum. That acknowledgment sufficiently discharged the executor as to that sum. The parties then go on to release him from all demands under the will, thus limiting the words of general release; which differs this case from those which have been cited, which were of all demands generally; although, in all those cases, the plain intent of the parties was confined to the lesser sum mentioned. To put such a construction on this release would be to make another contract for the parties, by applying a construction where there is no ambiguity in the language.
    The verdict of the jury, having negatived the idea of fraud, would seem to be decisive of the question upon its merits. For it must be upon some notion of imposition, that words so plain as these can be construed away.
    
      
      
        Bar. Abr. Release, K., cites And. 64. — Hob. 74.— Dyer, 240.
    
    
      
       3 Mod. 277.
      
    
    
      
       2 Wils. 530.
    
    
      
       1 D. & E. 291.
    
    
      
       4 Bos. & Pul. 113.
    
   By the Court.

The words used in this release ought not to be extended beyond the consideration. Otherwise we should make a release for the parties which they never intended or contemplated. The whole instrument is to be taken together, and not divided into parts, as has been ingeniously attempted by the counsel for the defendants. It is a general and a reasonable rule, that more general words in an instrument shall be restrained by other expressions more limited in the same instrument, But in examining the instrument under consideration, it is hardly necessary to appeal to this rule. The plain meaning here is, that twenty-five dollars had *been paid to each of the releasors. This is recited in the preamble. This was obviously the cause and occasion of making the release, and it cannot be understood as intended to have any other operation than to discharge the executor from that particular demand. It is, then, no answer to the demand of Wing and his wife, for. whose benefit this suit was instituted, and they are entitled to recover the legacy bequeathed to the wife. Therefore let execution issue in their names for the amount of that legacy, with interest from the respective times it was made payable, and costs. 
      
      
         [Vide Worcester Bank vs. Reed & Al., post, 267. — Ed.]
     