A gift to a debtor in the will does not release the debt. However, before the debtor may take any benefit under the will, the debt that he or she owed to the testator must be brought into account.17 The debt must be a set-off against a general legacy or a pecuniary gift, as well as any share of residue. However, it appears that the rule of set-off does not apply simply where there has been a specific gift of real property.

The executors have a right of retainer against the debtor-legatee even if the debt is statute barred at the date of the deceased’s death, as the debtor cannot take any benefit without first bringing in his or her debt.18

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