The evidence introduced by the plaintiff tended to prove, and the jury have found, that John Parker agreed to pay to his son, the plaintiff, as the price of one half of a farm, $1500 in cash, and at his death the further sum of $500, “ and $100 for interest on it.”
1. This agreement, made for a valuable consideration, to pay a certain sum of money at the time of the promisor’s death, was not in the nature of a testamentary gift, but was a valid contract binding on Ms executor, the defendant. Jenkins v. Stetson, 9 Allen, 132.
2. The conveyance of the 'and having been executed, the *84promise to pay the price was not within the statute of frauds. Nutting v. Dickinson, 8 Allen, 542, and cases cited.
3. There is no ground for the suggestion of the defendant that the contract was usurious. The testator did not agree to pay more than the lawful rate of interest on so much of the purchase money as was to be paid at a future time; but to pay in addition to that part of the purchase money a certain sum, which might or might not exceed the amount of interest if computed at the lawful rate, according to the length of life of the testator after making the promise. The sum of $100, though called “ interest,” was not paid for a loan of money, but was a part of the purchase money which the defendant at the time of the bargain agreed to pay. And there is no evidence whatever that the transaction was intended as a cover for a loan. Beete v. Bidgood, 7 B. & C. 453; S. C. 1 Man. & Ry. 143.
4. The legacy of $500 in the subsequent will of the father was rightly held to be inadmissible in evidence of a satisfaction of this debt of $600 or any part of it. The debt to the son was contracted for a valuable, consideration and stood upon the same footing as a debt to a stranger. The legacy was in the ordinary form of a simple gift, without any reference to the defendant. A debtor cannot oblige his creditor to be satisfied with receiving less than his whole debt; and it would be a forced construction to hold that the testator intended to pay all of his debt except the part which he called “ interest,” leaving that in force. A legacy to a creditor of a sum less than his debt is not to be applied towards payment of the debt without clear evidence of the testator’s intention that it should be. Strong v. Williams, 12 Mass. 390. Smith v. Smith, 1 Allen, 130. Tolson v. Collins 4 Ves. 490,491. Thynne v. Glengall, 2 H. L. Cas. 153. 2 Story on Eq. §§ 1104, 1122.
5. The defendant in his answer put in issue the making of the contract alleged by the plaintiff, and averred that the testator never agreed to pay more than $1500 for the land. That sum was the consideration named in the deed to him from the plain tiff. The testimony of one of the plaintiff’s witnesses tended to show that the half of the farm was not worth $2000 without *85the wood, and that there xvas $1000 worth of wood standing on the whole farm, or $500 to each undivided half. The deeds offered in evidence by the defendant showed that the plaintiff had some years before conveyed to his father the right to cut the wood, and were material evidence upon the question what price he agreed to pay for the land. Bradbury v. Dwight, 3 Met. 31. Those deeds having been excluded by the presiding judge, the defendant is entitled to a new trial.
Exceptions sustained.