In re Leslie

The Surrogate. — On the motion to confirm the report of the auditor, the counsel for the executor claimed that the auditor had no authority to pass upon the claims of the estate against the executor, as they were disputed; and that the giving of the legacy was evidence that the deceased did not intend to enforce the payment of his . claims against the executor. It appears, however, that the claims against the executor were not only included in the inventory, but inserted as subsisting claims in the account rendered by the executor, and there is no pretence, on [282] his part, that he has ever paid any of said claims, nor is there any evidence that the sums thus advanced by the testator were intended as gifts. Considerable stress is laid by the executor’s counsel -upon the authority of Aden v. Smith (5 Ves., 340), .where it was held that the legatee was entitled to his legacy discharged from the debts due by him to the testator, upon evidence from the testator’s accounts, letters and memoranda, in his handwriting, strongly tending to show that it was so intended by the deceased at the time when he made his will. The facts tending to show that intention constitute the material distinction between that case and the present, for in this case there is no evidence tending to show that the legacy was intended to be a release of the indebtedness referred to. ■ Roper on Legacies (vol. 2, p. 1062, 2d American ed.) lays down the rule that where a creditor bequeaths a legacy to a debtor in his' will, and either does not notice the debt, or mentions it in such a manner as to leave his intention doubtful, and after his death securities for the debt are found uncancelled among the testator’s property, courts of equity do not consider the legacy to the debtor as necessarily, or even prima facie, a release, or extinguishment of the debt, but require evidence clearly expressive of the intention to release. If such intention does not appear clearly expressed or implied on the face of the will, evidence from other sources will be admitted, and the. learned author proceeds to examine, with great particularity and research, the numerous authorities sustaining that doctrine. This doctrine is fully [283] sustained by the authorities cited, and without further examination of the question, I am of the opinion that the auditor’s report should in all things be confirmed. Let a decree accordingly be entered.