case sibthorp versus MOXOM November SC Ves the plaintiff grandmother say by  her will I likewise forgive my soninlaw Richard Chillingworth a debt of pound  due to I upon bind and desire my executor to deliver the same to be cancel the  legatee die in the lifetime of the testatrix the plaintiff his representative  ought to have the benefit of this discharge of the debt and the court order  the bind to be deliver up to be cancel the question in this case be whether a  legacy shall be deem to be lapse and sink into the inheritance for the benefit  of the heir or go to the representative of the legatee the testatrix the  grandmother of the plaintiff devise in the follow word I likewise forgive my  soninlaw Richard Chillingworth a debt of pound due to I upon bind and all  interest that shall be due for the same at my decease and desire my executor  to deliver up the bind to be cancel and make her son John very sole executor  the legatee die in the lifetime of the testatrix Mr attorney general for the  plaintiff argue that this be a extinguishment of the debt and shall enure to  the benefit of the representative of that person who debt it be and  distinguish upon the force of the word I give or I forgive a difference that  be take in the case of Elliot versus davenport report in vern and also in p  wms the reason he say of the word likewise be introduce in this clause be  because she have before give XI oh apiece to the legatee for mourning Mr brown  counsel of the other side say the true question be if this devise be of a  legatory nature or to operate by way of extinguishment it do not certain  amount to a release of the debt because it do not take place till the death of  the testatrix a will can release a debt I Ventr side the legatee also must be  in be capable of take at the death of the testatrix the legatee point out in  the present case be Richard Chillingworth not his ex atkins er p ecutor or  administrator it be a personal atkins bounty to he and couple with the  pecuniary legacy of ten pound she have give he before Mr Wilbraham counsel of  the same side argue that as to the word direct the bind to be deliver up to be  cancel they stop too short they shall have go so far as to say it shall be  deliver up to the legatee his executor or administrator that will he agree  have be sufficient Lord chancellor I be of opinion the plaintiff ought to have  the benefit of this discharge of the debt and that the bind shall be deliver  up to be cancel the testatrix have in contemplation some benefit to all the  branch of her family the daughter of Richard chillingworth wife be the person  who now apply for this benefit and it will be hard to say that because the  soninlaw die in the testatrixs lifetime that the grandaughter who be of the  testatrixs blood shall lose it to be sure where a testator give a debt or  forgive a debt it be a testamentary act and will not be good against creditor  but against a executor it may and though this can operate as a release at law  yet equity will carry it that length and if a action have be bring on the bind  this court will have grant a injunction or a original application may be make  to this court if so what operation will it have in the present question in the  case of Elliott versus davenport as devise to b pound which he owe her provide  that thereout he pay several sum to his wife and child and the rest she free  give to he and direct her executor to deliver up the security and not to claim  any part of the debt but to give such release as b his executor c shall  require b die in the lifetime of the testatrix the master of the roll sir John  Trevor decree the legacy give out of the pound to be pay and the residue of  the debt to the executor Elliott versus davenport vern I bad it be say I  forgive my son such a debt and the bind have be order to be deliver up by the  executor to be cancel it have be hold a discharge there be nothing personal in  the present come in the direction that the bind shall be deliver up to be  cancel but it be object this be not a independent clause but ancillary atkins  the question then be what construction the court shall put upon it I think the  testatrix intend in all event the bind shall be deliver up to be cancel if  this be her intention the case be clear and will operate most for the benefit  of her family in Elliott and davenport the word be not pen as forgiveness or  remission there be no intention to release the recognizance till sir William  Elliott pay thereout but b ere be a clear intention to release the debt there  it be to be deliver up to sir William Elliott here in general to be cancel  there the right of action subsist which be the reason of that opinion here it  will be too nice to make such a distinction and will narrow the bounty too  much intend by the testatrix to her family and therefore I decree the bind to  be deliver up to the plaintiff to be cancel but without cost N B it be agree  by all that a will design to prevent the lapse of a legacy by the death of the  legatee in the life of the testator ought to be special pen vide Sibley v cook  atk