The opinion of the court was delivered,
by Thompson, C. J.That a bequest by a debtor to his creditor equal in amount to the debt he owes, without any contingency or postponement of time of payment, is presumed in equity to be in satisfaction of the debt, is not to be doubted: 3 S. & R. 54; 2 Wms. on Ex. 1168, and the authorities there cited, and Redf. on Wills, part 2, 516, et seq.
The doctrine is not, however, a favorite with us. Yeates, J., deliyering the opinion of the court in the case referred to (3 S. & R. 54), says: “The rule itself is not founded on reason, and often tends to defeat the bounty of testators; and able chancellors have thought it more agreeable to equity to construe a testator to be both just and generous, where the interests of third persons are not affected. And courts of justice will now lay hold of slight circumstances to get rid of the rule. Legacies are considered gratuities, and are always considered favorably.” In the same spirit is the doctrine discussed by Redfield, at pages 517 and 518 of the volume referred to. In the late case (Wesco’s Appeal, 2 P. F. Smith 195), this court asserted and applied the principle, in an opinion by Read, J. Like all presumptions of fact, however, it may be set aside whenever intrinsically or aliunde the will is averse to it; And it has many exceptions to its operation at all; *192for instance, it does not apply where the legacy is contingent .and uncertain as to amount or time of payment, or where there is a running account between the testator and his creditor, and where the legacy is not ejusdem generis with the debt, such as where a bond or specific property devised or bequeathed. There may be many other exceptions.
The will in this case was dated the 18th of May 1865. Although the greater portion of the plaintiff’s claim had accrued prior to that date, there were a number of charges against the testator after this time and before his death, by the plaintiff, for services of the same nature as those which preceded the date of the will; the jury found that there had been no settlement of accounts between the plaintiff and testator before the. date of the will; and this was, in substance, a finding that the claim was a continuing and running account. . j
On authority, therefore, this was not a case for the application of the principle that the debt was satisfied, or to be satisfied, by the legacy: 2 Williams on Ex. 1167. It would need the aid of an intention to be deduced to that effect, either from the will or aliunde: Williams v. Crary, 6 Cowen 368; Clark v. Bogard, 2 Edw. Ch. 387; Zeigler v. Eckert, 6 Barr 13. It would be as unreasonable a presumption that a debt was satisfied, the amount of which was not known, as it would be to apply the principle to a case where the existence of it altogether was unknown. A much more natural presumption in this case, it seems to me, would be, that the testator, bound by the ties of consanguinity and family, and by the legal tie of guardian to the plaintiff, meant to give him a gratuity of $500, and let him come in with other creditors for what the estate owed him for labor performed. If the charge for services were proper at all in the pre-existing relations of the parties (and this seems not to have been controverted), this would seem to be the most natural presumption. Besides this, the legacy was not payable immediately, but within a year; and according to some authorities this would raise an exception to the rule and render it inapplicable, unless there was express evidence by the will, or otherwise, to the contrary. We do not see that the learned judge erred in giving effect, as he did, to the circumstances of the continuing and unascertained amount of the accounts between the parties at the date of the will, and by refusing effect to the presumption of satisfaction, unaided as it was by anything in the will, or dehors it.
Nor was there any ground of complaint that the judge withdrew from the jury the consideration of any fact or circumstance, which might tend.to show the intention of the testator that the legacy was to redeem the debt. In fact, I see not where any such fact or circumstance appears; but, supposing I am wrong in this, the error is not made out, for in the charge the judge expressly said: *193“ Unless you can gather from the evidence and will, that there was such intention in giving the legacy,'the mere fact of the legacy to the plaintiff will not prevent plaintiff’s recovery.” This was not contradicted or set aside by the answer to the point, and was all that the defendant could claim. It may be that it is inequitable and unjust on part of the plaintiff to make the demand complained of, but the evidence and the case as presented does not make this appear, and, on the other hand, it may be exactly' in accordance with the testator’s will, and therefore just. Tested by legal rules it is so, and it must, and ought to be regarded to be so in fact.
Judgment affirmed.