Debt. Plea, payment, with leave to give the will of testatrix in evidence. The case was simply this : Mrs. Massey, the testatrix, was in a low state of health, for some time before her death; the defendant took the charge of her affairs, and had some accounts against her ; but he borrowed 150i. from her, for which he gave a bond, payable in one year, with interest. On the 5th of June 1784, she made her will, which was proved on the 21st of June, containing, among other things, this bequest : “I give to T. Learning, in consideration of his many services to me, 200i. in real specie ; provided, he brings no account against me and my estate ; and if he happen to bring any account against me, or my estate, then this bequest to be void with a devise over of the testatrix’s estate. The legacy was paid to T. Learning ; the present action was brought upon his bond; and the question of law arose, whether the bequest operated as a release ?
The plaintiff’s counsel suggested, that they were ready to prove, that there was a deficiency of assets to pay debts. Upon this suggestion, it was agreed, that a verdict be given for the plaintiff, subject to the opinion of the court, whether the bequest was an extinguishment of the debt ? If it was so considered, then the plaintiff shall be at liberty to prove a deficiency of assets, for the payment of debts.
After depending for a great period on the docket, the suit was, finally, marked “ not to be brought forward.”
A legacy to a debtor is not, per se, a discharge of the debt; but it may be shown to have been so intended, by extrinsic proof. Zeigler v. Eckert, 6 Penn. St. 13; Strong v. Bass, 35 Id. 333. And see Richets v. Livingston, 2 Johns. Cas. 97; Smith v. Kearney, 2 Barb. Ch. 533; Stagg v. Beekman, 2 Edw. Ch. 89; Clark v. Bogardus, Id. 387; Negley’s Estate, 25 Pitts, L. J. 99.