
    *Stout against Hart and Muirheid, Executors, &c. of Houghton.
    A devise of “ all the money due on a bond against P. and I.” is a specific legacy.
    When, after such bequest, the testator, at the request of one of the obligees, accepted another bond in lieu of the first, for his accommodation, rt is not an ademption of the legacy. There is a distinction between voluntary and compulsory paj-ments ; when payment is tendered to the testator of a debt specifically bequeathed, it is not a circumstance from which to infer an intention to adeem; when he calls in the money himself, it is a circumstance from which such intention may be presumed, unless accounted for on other grounds.
    This was an action of debt, brought by the plaintiff to recover a legacy, and the following statement of the case was agreed upon by the counsel.
    Thomas Houghton, late of Hopewell, in the county of Hunterdon, deceased, on the 23d of December, 1784, having then in his possession a certain bond or obligation executed by Peter Phillips, as principal, and John Phillips, Jun., as surety, to the said Thomas Iioughtou, dated the 1st oí May, 1782, conditioned for the payment of £119 18s. 6d., with interest, at the expiration of one year from the date of the bond, duly made and published his last will and testament, and in it appointed the defendants his executors; and, in and by the said will, he bequeathed to the plaintiff as follows, viz. “Item. I give and bequeath to my nephew, Joab Stout, <fec., &c-., all the money due on a bond against Peter Phillips and John Phillips.”
    After the making and publishing the last will and testament, as aforesaid, to wit, in or about the month of February, 1786, the testator, at the request of John Phillips, the surety in the bond above mentioned, and for the accommodation of John Phillips, and to enable him to secure -and indemnify himself, as surety in the said bond, did agree to accept from John Phillips a bond, to be executed by one Jesse Titus,, as principal, and John Phillips, as surety, to the said Thomas Houghton, conditioned for the payment of a sum of money equal to the principal money and interest which had accrued on the first mentioned bond, and thereupon to deliver up the first bond to the obligors in the second. This agreement was carried into effect, and the first bond delivered up to Titus or Phillips.
    On this charge or transfer, no money was paid on the first bond to Houghton.
    After the delivery of the first bond, Jesse Titus caused a writ *to be issued' against Peter Phillips and John Phillips, Jun., on the said first bond, but proceeded no farther in the suit than the serving of the writ.
    After this transfer of bonds, Peter Phillips died intestate, and administration of his estate was regularly granted to John Phillips and Lott Phillips.
    The administrators of Peter Phillips, after his death, and John Phillips,'Jun., on the 1st of May, 1792, adjusted and settled between themselves the shares or proportions which each party agreed to pay of the original debt to Thomas Houghton, secured by.the first bond; and in pursuance of an agreement between them, the administrators of Peter Phillips, on the said 1st of May, 1792, executed to Thomas Houghton, the testator, a bond conditioned for the payment of £118 3 7s., being their proportion of the original debt, with interest, at the expiration of one year ; and John Phillips, Jun., and Jesse Titus, on the same day, executed to the said Thomas Houghton their bond, conditioned for the payment of .672 2s. 6d., with interest, at the expiration of one year from date. The sum mentioned in the condition of this last bond, together with .£6 in money then paid by John Phillips, Jim., to Houghton, being the residue of the amount of the original debt.
    On the delivery of these two last mentioned bonds to the testator, the two first mentioned were cancelled and delivered up. On the 5th of May, 1792, the administrators of Peter Phillips paid the sum of .£14 5s. in part payment of their bond. On the 1st of May, 1793, they made a further payment of .£1 19s., and on tho 1st of May, 1794, paid the whole interest then due on their bond above mentioned, all which payments are endorsed on the obligation.
    Thomas Houghton, the testator, died on the 13th of March, 1795, unmarried and without issuo, not having revoked or altered his said will.
    On the 6th of April, 1796, tho administrators of Peter Phillips paid to the defendants, as executors of Houghton, £118 2s. 6d., in full discharge of their bond, which was then delivered up and cancelled.
    The last bond given by John Phillips, Jun., and Jesse Titus is yet unpaid to the defendants.
    *The will of Thomas Houghton contains a residuary bequest to the children of his two brothers, Joab and John Houghton.
    After the death of Thomas Houghton, the testator, assets sufficient to pay and discharge all the debts and legacies came to the hands of the said defendants, and a small surplus will remain for the residuary legatees.
    Upon the foregoing case, Joab Stout, the legatee in the said will named, has commenced an action in tho Supreme Court against the said executors, to recover the legacy aforesaid, and. it is agreed by and between the parties and their attorneys, that judgment be entered for the plaintiff for the amount of the said legacy, with interest, subject to the opinion of the court on a motion for a non-suit on the case as above stated ; each party to have the same advantage as he would have had on a motion for a non-suit, had the same been made at the trial, with liberty to make this state of the case a part of the record, and bring a writ of error thereon, if either party please.
    The case was argued at November term, 1800, by F. Stockton for the defendant, and Johnson and Frelinghuysen for the plaintiff.
    
      For the defendant.
    
    On the facts agreed upon in the state of the case, this action cannot be sustained ; but a non-suit must be entered. The plaintiff’s declaration is founded upon the bond of May, 1782, which is mentioned in the bequest; and, in fact, a suit could only be brought in that mode on this case. "
    Under this special bequest, it is contended, on the part of the defendant, that the plaintiff has no right to the bonds dated in 1792. The bequest is a specific one, it is of moneys due on a certain bond, particularly described; and where the legacy is specific nothing but the particular article mentioned passes by the will.
    In the case of Pearce v. Snaplin (1 Atk. 417) Lord Uardwicke gives an accurate description of a specific legacy. He says there are two kinds of gift included within it. First. When a particular chattel is specifically described, and distinguished from all others of the same kind. Secondly. Something of a particular species, which the executor may satisfy by delivering something of the same kind, as a per se, &c. It is evident that the present case furnishes an example. of the former kind; the *particular bond is specifically described, and distinguished from all others. It is a bond against Peter Phillips-and John Philips: the case shows there was such an obligation at that time belonging to the testator, and there could ho no danger of mistaking it for any other bond in his possession. Lord Ilardwicke then proceeds to state the law with regard to this species of legacy. He says, the first kind may be more properly called an individual legacy; and if such a chattel, thus bequeathed, is not found among the testator’s effects, the legacy fails; or if it is disposed of in the life of tho testator it is an adomption of such legacy.
    It may be urged, that, in the present instance, the words of the testator do not pass the bond itself, but merely the money due on it, and therefore the legacy is not specific. It would be sufficient to reply to this, that it is the debt which is the subject matter of the bequest, and that the written instrument is nothing inoro than the evidence of that debt. To give the debt, is to give the evidence which is to prove its existence; to give the bond itself, is to give the debt which it secures. The more giving of tho paper and wax is nothing; it is the money which is secured by the instrument, that alone gives it value. To take a distinction so refined is not conformable to tho principles of the law in construing wills; the intent of the testator is manifest, and is not to be destroyed by over nice distinctions.
    But, on the strict grounds of law, such a distinction would be immaterial. Money may be the object of a specific legacy. Although it may be more difficult, yet repeated decisions shew it to be legal; and that money may be so distinguished as to he the subject of a specific bequest, is expressly recognized in Lawson v. Stitch, (1 Atk. 508) where an instance is put, as money in a certain chest. The true distinction is laid down in Hinton v. Pinke, (1 P. Wms. 540) where it was held, that the devise of a particular sum of money in the hands of B. was specific.
    In the case of Lord Castleton v. Lord Fanshaw, (1 Eq. Ca. Ab. 298, pl. 2) where a testator having £4000 secured to him by bond, devised it to his daughter, the court held that the devise of this sum of money was a specific legacy. So the bequest of a particular debt was held in Ellis v. Walker, (Ambl. 309) to be specific.
    The authorities that have been cited, establish the principle, that a bequest of'this kind is .a specific legacy.' The conclusion, *then, is inevitable, that as the bond was cancelled and delivered up by the testator during his life, the legacy is adeemed. In the case of Ellis v. Walker, the language of Lord Hardwieke seems decisive of the question. After having shewn that the legacy in the case' before him came within the general description of specific legacy, he observes, “ where legacies are clearly specific, and any act is done to take away or change the thing, it is an ademption of the -legacy.” “If he parts with the horse, or calls in the debt, it is an ademption.” The same doctrine is recognized in Ashton v. Ashton, (Ca. temp. Talb. 152) where the chancellor observes, “ if a man devise a thing which he hath not, it is not such an estate as a court of equity can relieve against. If in this case he actually had as much as he devised, but before his death had sold a part, it had been an ademption for so much.”
    The only answer which it is apprehended can be given to these and numerous other cases establishing the same general doctrine, is founded upon a distinction which formerly prevailed between voluntary and compulsory payments. It is now perfectly immaterial, as regards the question of ademption, whether the testator voluntarily called in the debt bequeathed, or received it when tendered by the debtor. There is no foundation for the distinction that was formerly taken between the cases. 2 Fonb. 367. The whole doctrine is fully investigated by Lord Thurlow, in Ashburner v. M’Guire, (2 Br. Ch. Ca. 108) and all the cases examined, and the doctrine now contended for adopted in its fullest extent.
    But there is an insuperable difficulty in the way of the plaintiff in the present action. He has declared specifically for ,-0:247 due on the bond of Peter Phillips and John Phillips. How the facts set forth in the state of the case shew, conclusively, that nothing was duo on this bond at the time the testator died. The plaintiff, before he can recover, must shew that this money has been received by the executors. But he has shewn that the bond on which he declares never came to their hands, and that they have never received one cent upon the bond which he alleges was bequeathed to him. The pleadings are conformable to his case, but they are not comformable to the facts. He should either have spread all the facts upon his declaration, or he should have gone into a court of equity; but, standing on the ground *which he has taken, the facts of the case will not warrant a recovery.
    
      For the plaintiff.
    
    The will of the testator, undor which
    the defendants act as executors, and the validity of which -cannot be, and has not been questioned, contains a bequest in favor of the plaintiff, which he is entitled to recover, unless some circumstances have since intervened, depriving him of his right. The legacy has been bequeathed, and unless an ademption has occurred, he is entitled to reap the fruits of the testator’s benevolence to him.
    It is a general principle of the law, that ademptions of legacies are not to be presumed, any more than the revocation of the testament-. Swinb. 545; 4 Bac. Abr. 364. Every ademption is quoad hoe a revocation, and every revocation is to be expressly proved, not inferred. Swinb. 529. An ademption is the taking away of a legacy before bequeathed. Ibid. 544. It is conceded, that this ademption may arise by implication a-s well as by express words. Here it is not pretended there was any express revocation -of this legacy, and the question is, whether the circumstances before the court necessarily require that an ademption should be presumed ? In the construction of wills, the rule is firmly established, that where the revocation is, as is eon-tended here, an implied one, the subsequent act must be wholly inconsistent with the original bequest, and the implication must be a necessary one. 2 Fern. 496. The-presumption of the law is hostile to all such implications ; the utmost constancy shall be presumed in the testator till the contrary appear. 4 Bac. Ab. 355.
    All cases of ademption arise from a supposed alteration of the intention of the testator. Partridge v. Partridge, Ca. temp. Talb. 226. The mere calling in of the money, much less the mere change of security, is not a circumstance from which any alteration in his- mind towards the legatee can be presumed. Ford v. Fleming, P. Wms. 469. It is a measure which may proceed from a variety of motives, and consequently, any one inference that can be drawn is. not so-necessarily indicative of the testator as to amount to an implied revocation of a bequest.
    The distinction between voluntary and compulsory payments does not, it is true, hold so strongly as it did formerly, but the change of doctrine has given it a more decisive leaning in favor *of the plaintiff. The language of the master of the rolls, in Drinkwater v. Falconer (Ves. 623) is strictly applicable to the present case. He says, in that case, “ the payment was occasioned by a mixed act of vthe debtor and creditor. But supposing it was a voluntary act, and that she was merely passive, it is clear, that a voluntary payment of a debt to a creditor who has specifically bequeathed it, will create no variation in the thing-bequeathed; because the testator is out of the question”, has done no act to signify a variation of intention. Next,, supposing the payment compulsory, that does not, of course, vary the case, but may or may not adeem the legacy, according to the circumstances with which it is accompanied. If a man, after having given a legacy, compels payment of the debt, that does not of itself import an ademption of the legacy, for he m,ay have other sufficient reasons to induce him to call it in, which may be a compulsion of payment for Lite benefit of the legatee, so far from being an ademption, as if the debt was in danger of being lost.” The same rule is recognized in Hambling v. Lister, (Ambl. 401) where the master of the rolls says, there must be an indication of change of mind to -work an ademption; and that if there is proof that the debt wms called in for any other reason than from an intention to adeem, it is not an ademption. This other reason for the act is expressly sot forth in this state of the case, it is alleged to be at the request of the obligee, to secure and indemnify him. The doctrine is carried still further in Ashton v. Ashton, (3 P. Wms. 385) where Lord Chancellor Talbot would not consider the calling in the debt by the testator as even prima facie evidence of an intention to adeem. This appears, also, to have been the idea of Lord Chancellor Parker in Earl of Thomond v. Earl of Suffolk, (2 P. Wms. 469) who says, he cannot approve of the diversity; that if the testator gives away a debt by his will, and afterwards calls it in, this must be a revocation; seeus if it be paid in to the testator unasked for; for, continues he, suppose the testator called in the debt, fearing it might be lost, and not liking the security, is there any reason that this should deprive the legatee of his legacy ? Lord Chancellor King decided the case of Ford v. Fleming, (2 P. Wms. 469) on the same grounds, and the doctrino is now too firmly established to he shaken.
    As to the objections arising from the peculiar wording of the *declaration, they are utterly groundless, and prove nothing by proving too much. If there is any weight in them they shew that the plaintiff can never recover in a court of common law ; for as to stating all the circumstances of the case in his declaration, it would be impossible, in most instances, for the plaintiff to ascertain what they are previous to the trial, and consequently impossible to set them forth with any degree of certainty, and, upon the trial, his proof must correspond with his averments. It would be utterly useless if it could be done, because his whole claim rests upon the words in the will, and if they are insufficient to ground his action upon, they cannot be helped by any after averments. In this case he has set forth the clause in the will by which the legacy'is bequeathed; all the other circumstances are rather urged as a defence against his claim, than as furnishing additional ground upon which it is to rest.
    
      In reply. The cases cited on behalf of the plaintiff are plainly distinguishable from that before the court. They are not, in their character, specific legacies. The note to Hinton v. Pinke takes this distinction, and it will reconcile all the apparently conflicting cases that have been cited. A devise of a sum of money out of a debt is not specific, but considered to be given out of the debt as a readier fund. Ambl. 310. The authority from 2 Vesey is evidently grounded upon the exploded distinction between voluntary and compulsory payments, and is therefore entitled to little regard in the present case.
    There is, however, a degree of contrariety in the language of the books, which it is difficult to reconcile. But the more modern authorities, which place the circumstances of each case upon their own bottom, and regard the question arising upon them as a question of legal construction, are more to be regarded than those which throw us adrift in searching after the ever varying intention of the testator.'
   The opinion of the court was delivered at the present term by

Kinsey, O. J.

(After recapitulating the facts set forth in the state of the case.) This suit is brought by Joab Stout, the legatee mentioned in the preceding clause of the will of the testator, to recover the amount of the bond thus devised to him, and the general question to be considered is, whether, under all the *circumstances that have been brought before the court, he is entitled to recover the whole or any part of that sum ?

It is not questioned but that such a bequest is contained in the will; .that the bond therein referred to was then in existence, and if the legacy is not recoverable, this consequence must result from some or all of the following circumstances.

1. The acceptance, by the testator, of tho second bond from Titus, as principal, and John Phillips, as surety, in lieu of tho first bond, on which Titus caused a writ to be issued.

2. Or because the testator, in 1792, accepted of two bonds, the one executed by the administrators of Peter Phillips for the larger proportion of the first debt, the other executed by John Phillips for the residue of it, which bonds wero given to him in pursuance of some adjustment of the respective proportions for which the estate of Peter Phillips and John Phillips wero answerable on the first mentioned bond ; or—

3. The administrators of Peter Phillips paid to the testator, in his lifetime, three several sums of money on account of the bond so given by them, and, after his death, paid off the residue to the defendants, as his executors.

In addition to these circumstances, applying directly to the merits of tho controversy, it has been further contended, on the part of the defendant, that tho plaintiff ought to be non-suited, because he has declared for so much money due on the bond from Peter and John Phillips to the testator, which not being true in fact, is a variance from the proof fatal to his action.

This objection is perfectly immaterial, the plaintiff’s claim is founded wholly upon the clause in the will which he has set forth in his declaration; of this part of his case he was consonant, and is so presumed to be ; the after circumstances, to which he was neither party nor privy, cannot in any manner affect the form of his pleading. These circumstances, to which he was a stranger, if they have any operation, go in bar for his recovery, and the real question in the case appears to me to be, whether the legacy be or be not adeemed by them ?

In the argument of this case, it has been justly observed, that courts have leaned against considering legacies as specific, †on account of the consequences which would frequently follow. If *the article specifically bequeathed was not found among the effects of the testator, or is proved' to have been disposed of in his lifetime, the legatee, contrary to the obvious design of the testator, is deprived of all benefit from the bequest Ambl. 310. 1 Atk. 416.

Lord Camden, who seems to have thought this doctrine too firmly established to be overturned, and desirous of avoiding the consequences of considering a legacy as specific in a case before him, took a distinction between a bequest of £500, due on a bond from A. B. and a bequest of the bond itself. This distinction had been before taken in Pawlet’s case, (T. Ray. 335) but is doubted by Lord Hardwicke, (Ambl. 310) and by Lord Thurlow, in 2 Br. Ch. Ca. 111. Had this distinction been established by express adjudications, it would have been decisive of this question; but it seems to be altogether exploded, and not to have been made the basis of a decision in any case. I consider the correct doctrine upon this point to be laid down in Cox’s note to P. Wms. 540, that wherever the testator specifically describes the chattel, and distinguishes it from all others of the same kind, it is a specific legacy. That when he bequeaths money in a particular chest, or a particular debt, it comes within this description. This is obviously the intention of the testator in the present case, and, under the authority of the best considered opinions, it must be considered as a specific legacy.

Upon the question of ademption, the variety and inconsistency of the opinions which seem to have been entertained by men highly distinguished for their judicial characters, is not a little surprising. It is not only impossible, by any distinctions that can be drawn, to reconcile their opinions, but it is difficult to make some of those able lawyers consistent with themselves.

It is not necessary that I should go into an investigation of all the cases that have been cited in the argument, but I shall confine myself to those which furnish principles sufficiently certain and well supported, to decide the present controversy.

Among the discordant, decisions which have taken place, we can readily extract two propositions, which seem to, if not universally, yet generally to be recognized. 1. That there is a distinction between voluntary and compulsory payments. 2. That the first is not in itself an ademption; and that the second is not *necessarily an ademption, but at the utmost, only prima facie evidence of one, and may he explained so as to destroy this presumption.

In the case cited from 2 Br. Ch. Ca. 108, Thurlmo, while he denies the propriety of this distinction between voluntary and compulsory payments, admits that it had gained so much ground as to be a governing principle, and that it had been recognized both by Lord Talbot and Lord Hardwicke; he even goes farther, he admits there are innumerable cases which support the doctrine, that a voluntary payment will not adeem a legacy of a debt. Parker evidently entertained the same opinion in 1 P. Wms. 461, King in 2 P. Wms. 471, and finally it seems to have been acquiesced in by Loughborough, in Coleman v. Coleman, 2 Ves. jun. 640. Thwrlow assigns no other reason for disapproving of the distinction, than that it seems not warranted by authority, and that it was exploded by Lord Camden in The Attorney General v. Parkin, (Ambl. 566) and by Lord Macclesfield. But I am by no means satisfied that Lord Camden’s language will warrant such a construction, nor do I even think that Lord Thurlow intended to decide that a compulsory payment was necessarily an ademption of the legacy, and did not admit of being explained by testimony.

Sir Thomas Clark, in 2 Ves. 624, lays down what I conceive to be the real rule, which I think ought not to be varied from. A voluntary payment is not an ademption, because accepting money when tendered does not imply any alteration in the intentions of the testator; but when the testator compels payment, this fact may or may not amount to an ademption, according to circumstances. The quo animo is an important point to be considered. With this opinion, those of King, Parker, and Talbot fully coincide, and the reason they give carries conviction with it, that so far from designing to revoke his bounty, the testator may have called in the money from an apprehension of danger, and with a view to secure the legacy, rather than to defeat it.

The present chancellor, Loughborough, who had no doubt maturely weighed the discordant opinions on the subject, in Coleman v. Coleman, lays down his opinions, corresponding *with those of Sir Thomas Clark. He says, where the testator is compelled to receive payment of the debt, a pretty strong presumption arises, that there is no variation of intention; where he goes of himself, no necessity urging him, and destroys the form of the thing specifically given, that is a good ground of argument the other way.

These authorities are, in my mind, sufficient to establish the first general position I have stated, that there is a distinction between voluntary and compulsory payments.

All the authorities seem to recognize one general principle, that the question of ademption is, in all cases, a question of intention, as are most of the cases of implied revocations of wills. Hor has any one of the authorities cited gone so far as to intimate, that, when the reasons upon which the testator proceeded in calling in the debt wero accounted for and explained, by reasons which indicate no change of intention towards the legatee, this shall amount to an ademption.

In the case before us, the fact is expressly stated, that the change of the first for the second bond, was done at the request of the surety, to accommodate, to secure, and to indemnify that surety; and, no othor cause being suggested, I do not think we are warranted in inferring, from mere conjecture, any other motive. The motives stated imply rather a negation of any other, and therefore the fact being fully accounted for, leaves no reason to infer any change of intention, and consequently it is no ademption.

If this be the case with regard to the change of the first, for the second bond, there seems no reason to presume an ademption from tho subsequent change for the third and fourth. Tho whole seems in continuation of the first design, to accomodate the debtor; and this last act seems to have been done with no other view, than to ascertain the proportions which the original debtors were respectively to pay of the first debt. They afford no ground, then, to presume a change in the mind of the testator.

In the case of Hambling v. Lister. (Ambl. 401) the master of the rolls did not consider the circumstance, that tho testator had agreed to a composition, and accepted £1000 in lieu of £1240, though secured by a mortgage, and soon afterwards laid out the money thus received on other securities, as an ademption. He considered it as shewing the testator apprehended it was in danger, *and therefore rebutted any presumption of an intention to adeem.

In the present case, we need not search for other motives, or infer them from dubious circumstances, to lead to tho same conclusion. The state of the case' shews what were the views of the testator, and negative any intention to adeem. It is the opinion of the court, therefore, that'the plaintiff is entitled to judgment for the sum bequeathed to him.

Judgment for plaintiff. 
      
      
         See the authorities on this point. 4 Ves.jun. 555, 568, 748; 5 Ibid. 199, 461; 8 Ibid. 410 : 3 Dess. Ch. Rep. 373, 383.
     
      
       See Smith v. Fitzgerald, 3 Ves. & Beam. 2.
     
      
       See the opinion of the master of the rolls in Inner v. Johnson, 4 Ves. jun. 574. See, also, Fryer v. Morris, 9 Ves. 360. Stanley v. Potter, 2 Cox Rep. 180.
     
      
       In the case of Stanley v. Potter, (2 Cox Eq. Rep. 180) it is decided, that a bequest of a debt is adeemed by the debt being paid to the testator in his lifetime, whether the payment be compulsory or voluntary, or whether the sum be expressed in the bequest or the debt bequeathed generally.
     