case earl of thomond versus earl of suffolk et all Reg lib a fol Lord  chancellor Parker Eq can ab pl pl one devise to her grandchild a debt of pound  owe to the testatrix by I S provide if any part of the debt shall be pay in  before the testatrixs death then so much as shall be pay in to be make good to  the grandchild out of the surplus of her estate afterward the testatrix  release pound of the say debt to I S without have receive any of the money  decree that this be no ademption of the legacy pro tanto but that the legatee  or her representative be entitle to the whole pound as much as if the same  have be pay in to the testatrix the countess dowager of thomond have two  several sum of pound and pound due to her on two several bind the one for  pound from her grandson the plaintiff the present earl of thomond the other  from her granddaughterinlaw the lady Henrietta obrian afterward countess of  Suffolk and since decease for pound also peer William the countess dowager of  thomond by will give these two sum of pound and pound and all interest due for  the same to her granddaughter the lady mary obrian and devise away the surplus  of her estate with a proviso that in case all or any part of these two sum  shall be pay in before the testatrixs death then the say testatrix give to the  say lady mary obrian pound or so much money as the principal money so pay in  shall amount unto as the case shall fall out afterward the testatrix in her  lifetime release to her grandson the Lord thomond the pound which be due to  her upon his bind without have receive any part of the money and die and her  legatee the lad mary obrian die intestate upon which the plaintiff the earl of  thomond her brother administer to her and as her administrator demand the  pound which be release to himself upon his bind and also the pound due upon  the other bind give by the lady Henrietta obrian the first he demand out of  the asset of the testatrix the countess dowager of thomond and the latter he  claim against the defendant the earl of Suffolk who though he be not executor  or administrator of his say late countess nor have any legal asset yet as be  insist by the plaintiff remain still Chargeable therewith in equity in respect  of a great jointure which he have long enjoy by his lady and diverse rich  jewel which she bring he upon their intermarriage in regard to the first it be  object for the defendant that the testatrix after have bequeathe these two sum  of peer William pound and pound due upon the two bind to her granddaughter the  lady mary obrian release one of they be a revocation or ademption of the  legacy pro tanto that the diversity which have be usual take be if the debtor  spontaneous and uncalled upon by the testator pay in a debt to he which he the  testator bad before give away by his will this be not a revocation of the will  for in such case the testator be only passive and do not act himself whereas  it must be his act which revoke the will and the testator can not help receive  in the money if the debtor will pay it but if the testator himself call for  the debt and receive it there it must be a revocation it be the testator own  act to call in the debt now in the principal case it be the testatrixs own  voluntary act to release and extinguish that bind which she have before devise  to lady mary obrian and consequent be a revocation of the will for so much and  if this be a revocation the subsequent word can not make it a new bequest of  two thousand pound out of the surplus of the testatrixs estate it be give upon  a condition precedent videlicet if this pound or any tart thereof shall be pay  in then the testatrix give pound or so much as shall e pay in out of the  surplus of her estate to her say granddaughter but no part of the pound be pay  in this pound be release by the testatrix without be pay in here be no bequest  out of the residuum peer William also the meaning of the testatrix be say to  be that if any part of the pound peer William er p shall be pay in by which  the bulk of the surplus shall be so much increase then and not otherwise the  testatrix give a new legacy out of such surplus videlicet to the amount of the  money so pay in beside a release of a debt be not a payment for it be most  plain even by the present case that there may be a release without payment  that it appear the word be against the claim of this new legacy and as the  word be against it so also be the intent of the testatrix who do not purpose  to give a new legacy out of the surplus to lessen the same unless such surplus  be increase by the pay in of this pound or some part of it Lord chancellor the  testatrix intend by this will among other thing to make a provision of pound  for her granddaughter lady mary and though she have show her kindness to her  grandson one of these bind be give to he for pound yet this no way import a  alteration or diminution of her kindness to her granddaughter I can approve of  the diversity that if the testator give away a debt by his will and afterward  call it in this must be a revocation by if it be pay in to the testator  unasked for for suppose the testator call in that debt fear it may be lose see  Vol two the case of ford v Fleming accord and not like the security be there  any reason that this shall deprive the legatee of his legacy and the case of  Orme and smith vern prove that the testator receive in the debt be no  revocation or ademption of the legacy I peer William as to the matter of the  release that sure imply payment and satisfaction of a debt be tantamount to  the testator receive it and give it back again and in the present case it be  the same as if the will have say if these debt be pay or discharge there have  be a objection make that the plaintiff the Lord thomond be administrator to  his sister lady mary crave a double advantage of this debt for first say they  it be give he by the release and then he take it over again by the will as  represent his sister but it be to be observe that this claim as represent his  sister be in auter law with vern Jason v Jarvis and post Copping v Copping Vol  two and as if the sister be alive and make her claim it must be liable to her  debt if she owe any and be the same thing as if any other person have be her  executor or administrator with regard to the other point videlicet the  plaintiff demand due by bind from the defendant wife dumb sola against the  defendant her husband in respect that he have receive much by the consequence  of the marriage it be urge that though the same be not legal asset yet there  be great reason the defendant shall be liable in equity on account of the  benefit so receive that if a husband shall have a vast portion with a wife in  good ready money or jewel or become entitle to a term for year in her right  and the wife shall die owe a debt peer William contract dumb sola there be  great equity though they may not be legal asset that the husband shall be  charge by reason thereof and not go away with his wife fortune at the same  time that he be not liable to pay her debt that here the question in equity be  whether the husband have not with his wife so much as will pay this debt if be  have he ought to pay it and it may be a common and will be a hard case if  there be a feme sole trader who have a shop full of valuable good and she  shall marry and die indebt there the husband shall by the marriage be entitle  to all these good which not be legal asset will not be liable sure under such  circumstance nothing can be more reason able than that he shall be charge with  his wife debt it be admit to be different where the husband make a settlement  in consideration of a portion for in that case he be a purchaser the portion  shall not be asset to pay the debt of the wife by if the husband make no  settlement that in the principal case the jewel which the defendant the earl  of Suffolk have with his wife together with a rentcharge of pound a yea that  he be entitle to in her right ought to be liable to the wife debt dumb la and  equity shall favour any construction for the payment of debt see the case of  freeman v Goodhan chancery case where Lord chancellor Nottingham with some  earnestness say he will change the commonlaw in that point peer William on the  other side it be insist that the defendant the earl of Suffolk be neither  executor nor administrator of his late countess nor be it pretend that peer  William er p he have possess himself of any thing that be her legal asset so  that at law he be no way liable to this bind and in equity all circumstance  when consider be rather in his favour as that he have before or soon after the  marriage pay such of his lady debt as be disclose to he and advance  considerable sum for her that the two thousand pound bind in question be not  discover to he at the time of the marriage nor until long after which if it  have appear he may have live in that provident manner as to have pay this her  debt out of her own estate that it be in the election of the countess dowager  of thomond with regard to this two thousand pound bind to have make the  defendant the earl of Suffolk liable by put the bind in suit and recover  judgement upon it during the coverture that she have a long time to make her  election the marriage have continue ten year or upward and her choose not to  put this bind in suit be tantamount to a declaration that she will abide by  her original security and not involve the defendant the earl therein and on  the other hand there can be no question but it be in the power of the countess  dowager of thomond to choose that security for her debt it be the same which  be original give her peer William that a court of equity will possible relieve  in case the wife who be the debtor have die in so short a time as that  judgement can not have be obtain against the husband but there be not the like  reason that equity shall relieve when the testatrix have time sufficient to  have make the husband liable and yet voluntary nay perhaps industrious have  omit it that by the know rule of law the husband be only liable during the  coverture and here not be circumstance to vary the law equity ought not to  interpose indeed if there have be a great personal estate of the wife or if  part of that estate have still remain in specie as in the case of a term for  year there may have be some ground for a application of this nature but in the  present case it be prove that the defendant the earl of Suffolk since his  marriage have advance his manner of live and that the increase of his charge  have amount to the full value of his countess jointure Lord chancellor if the  defendant the Lord Suffolk the husband have be executor or administrator of  his wife or executor of his own wrong he have be liable at law as far as asset  but in none of these capacity do he appear before the court any person that  have any of the countess of Suffolk asset be liable the creditor of the  countess of thomond have a fair opportunity of recover judgement against the  earl and countess of Suffolk and thereby of make the earl of Suffolk liable  but this she have not do and for ought appear have purposely omit peer William  the husband during the coverture be answerable for the wife debt and as  perhaps this may be hard when he have nothing with her so you be to set  against such hardship that if the husband have receive a personal estate with  his wife and happen not to be sue during the coverture he be not liable but it  be to be consider that the husband during the coverture be to answer for the  whole debt of the wife though he have nothing with her whereas a executor or  administrator be responsible only so far as he have asset as to the case that  have be put where a husband marry a feme sole trader and the wife die indebt  that though the husband in such case be not at law liable to the debt yet he  ought to be so in equity that be with I a question for the husband run a  hazard in be liable to the debt much beyond personal estate of the wife and in  recompense for such hazard he be entitle to the whole of the personal estate  though exceed the debt and discharge therefrom and indeed be entitle to the  same upon the very marriage and with regard to the jointure enjoy by Lord  Suffolk during the coverture that may have determine the next moment after the  marriage though how long soever it continue it be in the husband power during  the coverture to sell and dispose of it at his discretion upon the whole it  will be a great imputation upon the court in a case thus circumstance to make  the defendant peer William the earl of Suffolk liable to the bind of his wife  dumb sola wherefore as to this let the bill be dismiss with cost as to this  distinction between a voluntary and compulsory payment vide crockat v crockat  post Vol two rider v wager ib pound ford v Fleming peer William er p ib Ashton  v Ashton post Vol III from Barker v Rayner mad it appear that this distinction  notwithstanding the countenance give it in Coleman v Coleman Ves jun and  Robert v pocock Ves be incorrect and that the true question in each case be  whether the legacy be specific or demonstrative I e a general legacy but with  a particular security if the legacy be specific and the subject give do not  exist in specie at the testator death it be adeemed if demonstrative mere it  will still be due though the fund point out for its payment shall have be  dispose of in the testator lifetime Stanley v potter Cox chaworth v beech Ves  inn v Johnson ib friar v morris Ves Barker v Rayner ub sup be case of specific  Coleman v Coleman Robert v pocock ub sup Kirby v potter Ves Raymond v Brodbelt  Ves Le grice v finch mere of demonstrative legacy and see smith v Fitzgerald v  b grave v Hugh mad as to specific legacy see Hinton v pink post in the office  of executor chap sect this be mention as a hard case and proper for equity  agreeable to this resolution and on the authority thereof be a case of hear et  ux v Stamford et ux determine by Lord Talbot in LincolnsInnHall march post Vol  III and can tempt Talb S c see Adair v shaw I Sch l