
    NATHANIEL MORRILL vs. ORLANDO A. MORRILL.
    Where a testator gave to one of his sons “ $150, one-third payable in one, one-third •' m *\¾and one-third ia three years after his decease,to he paid at the rate of ** and in proportion to likely six feet oxen at $50 per yoke,” it was held to be agilt of the rakte of a yoke of oxen at the respective times when the payments were to he made ; and such oxen being, at the time the first payment became doe, worth $70fh was held that the legatee was entitled to that sum.
    This was an action of assumpsit, brought to recover a legacy given to the plaintiff in the will of his father, Oliver Morrill.
    
    The cause was submitted to the decision of the court upon a statement of facts agreed to by the parties, in substance as follows. Oliver Morrill, the father of these parties, made his will, whereby, among other things, he bequeathed to the plaintiff $150; one-third part to be paid in one, one-third part in two, and one-third part in three years after his death; “ to be paid at the rate of and in proportion to likely six feet “ oxen, at $50 per yoke and appointed the defendant his executor. The said Oliver died in June, 1817, and the defendant caused the said will to be duly approved and allowed, and took upon himself the burthen of executing the same. And there is in the hands of the defendant, as executor. sufficient personal estate to pay all debts and legacies.
    In June, 1818, when one-third of the said legacy became due, the plaintiff demanded the same of the defendant. Such oxen as are mentioned in the will were, at the lime of the said demand, and also at the time of making the will, and still are worth $70 per yoke. The plaintiff demanded the delivery of such a yoke of oxen, or the payment of their value, to wit, $70. The defendant tendered $50 in satisfaction of said third part of said legacy, and now brings the same sum into court, an 1 offers it to the plaintiff, but lie refuses to accept it. And it was agreed by the parties, that if the court should bo of opinion that the plaintiff was entitled to recover more tfcar. ,rm $50, ⅛-n the defendant to be defaulted, otherwise the ukmtiffdo become nonsuit.
    .'"•.bee?», for Use plaintiff.
    Su//.-.mi, for the defendant.
   by ih' viurt

It seems to us impossible to doubt what$r.as the intention of the testator in this case. He gives $150, 44 to be paid at the rate of and in proportion to likely six “ feet oxen, at $50 per yoke,” This, in our opinion, is dearly tantamount to a gift of $150, payable in such oxeo at $50 a yoke, It is, in fact, a gift of a sum of money equal to the value of three yokes of six feet oxen. The amount of the legacy is then to be ascertained by the value of oxen at the several times when the legacy becomes payable. When the third of the legacy, for which this action is brought, became due, likely six feet oxen are agreed to have been worth $70 a yoke. That sum is of course the amount the plaintiff is entitled to recover in this action.

Defendant defaulted.  