Stewart's Appeal

The opinion of the Court was delivered by

It has been so frequently held that the legatee’s taking a bond from the executor for his legacy is a payment and extinguishment of it, that the point seems settled. Goodwyn v. Goodwyn, (Yelv. 39), is almost the very case before us. There a man, by his will, bequeathed £20 to his daughter. The executor entered into a bond of £40 to the daughter for payment thereof, *478according to the will. The daughter married. Her husband sued the executor in the spiritual court as for a legacy. The executor pleaded payment, according to the bond, and because the spiritual judge would not allow this plea, the executor brought a prohibition, and showed for surmise the matter aforesaid. The court held the surmise good; for the executor, by his entering into bond to the daughter, for payment of the legacy, had extinguished the legacy, and made the £20 bequeathed a debt merely at the common law, and not suable there. Gardner’s Case, cited in 8 Mod. 328, is to the same effect, and the opinion of Mr Justice Doderidge to the contrary is overruled. In Geyer v. Smith, (1 Dall. 347), it was decided that a creditor’s taking a bond from the executor or administrator discharges the old debt, even though the bond be given as executor or administrator, for calling himself so is surplusage, and he is chargeable only in his own right. There is no ground for treating this single bill as a collateral security, as has been argued. The executor is bound for the legacy if he has assets, and may become personally responsible by a devastavit. It is, therefore, giving a bond, in a certain sense, for his own liability. Nor is there any strength in the argument which compares it to the case of a promissory note. A mere note is not payment unless received as such; and the presumption is that it is not received in payment, until it be shown the party agreed to take it as such. Whereas, where a party takes from his debtor a sealed instrument for a simple contract liability, the presumption is the reverse; and it lies on the party receiving it to show that it was not so received; and upon that distinction the case of Wallace v. Fairman, (4 Watts 379), went; for there it was expressly declared in the receipt, that the bond was only to be in full when paid.

Independent of this, the husband’s suing alone on the sealed bill, and recovering a judgment, is such a complete reduction of it into possession, that it becomes vested in him or his representatives. 1 Vern. 396; 2 Vez. 677; 12 Mod. 346; 3 Lev. 103; Noy 70. Such being the case, had the wife survived the husband, his representatives could have recovered on the judgment. The wife certainly could not also have proceeded to recover it.

Judgment affirmed.