CHAPTER XXVI.

ADEMPTION AND SATISFACTION OF LEGACIES AND DEVISES.

§ 708. Ademption defined.

§ 709. Ademption and satisfaction distinguished.

§ 710. The same subject.

§ 711.

The same subject: The class of legacy to which each is applicable.

§ 712. Effect of ademption.

§ 713. Adeemed or satisfied legacies not revived by republication or re-execution of will.

§ 714. As to evidence of the testator's intention.

§715. The same subject.

§ 716. Ademption by act of the testator: Delivery by testator to legatee.

§ 717. Ademption by loss or destruction of property specifically bequeathed.

§ 718. Ademption by alienation of property bequeathed.

§ 719. Ademption by change in form of property bequeathed. § 720. The same subject: Conversion after testator's death, or while he is of unsound mind.

§ 721. Ademption by removal of property.

§ 722. Ademption by fulfillment of purpose for which legacy was given.

§ 723. Satisfaction of general legacies.

§ 724. Where legatee is a stranger: Presumptions.

§ 725. Legacy of a debt paid before testator's death.

§ 726.

Legacy to debtor by creditor: No presumption that debt is forgiven.

§ 727. The same subject: Parol evidence of intention.

§ 728. Legacy to creditor as satisfaction of debt: General rule. § 729. The same subject: Exceptions to general rule.

§ 730. The term "advancements" defined: Gifts and debts distinguished.

( 1038 )

§ 731. Meaning of "in loco parentis."

§732. The same subject: Gift by parent to spouse of child. §733. Legacy must precede advanced portion in point of time, otherwise no deduction.

§ 734. Presumption as to advanced portions: General rule. $735. The same subject: Slight differences between gift and

legacy.

§736. The same subject: Exceptions to general rule.

§ 737. Reason for presumption of satisfaction of legacy by advanced portions.

§ 738. Advancements, value thereof and interest thereon. § 739. Statutory regulations as to gifts and advancements. § 740. Evidence of testator's intention: Statutory regulations and provisions of the will.

§ 741. The same subject: Parol declarations and other evidence.

§ 742. The same subject: Oral declarations: By whom, time when made, and parties present.

§ 743. The same subject: Declarations against interest.

§ 744. A devise of real property fails if the testator has no interest therein at his death.

§ 745. The same subject: Effect of re-acquiring ownership. 746. The same subject: Effect of agreement to sell.

§ 747. The same subject: Effect of mortgage.

§748. The same subject: Realty directed to be converted into

money.

§708. Ademption Defined.

Ademption, properly, has reference only to legacies, the term not being applicable to devises of real estate.1 Swinburne says ademption is taking away a legacy which was before bequeathed, which may be done by an express

1 Davys v. Boucher, 3 Y. & C. 397; Marshall v. Rench, 3 Del. Ch. 239, 256; Weston v. Johnson, 48 Ind. 1, 6; Swails v. Swails, 98

Ind. 511; In re Brown's Estate, 139 Iowa 219, 117 N. W. 260; Fisher v. Keithley, 142 Mo. 244, 64 Am. St. Rep. 560, 43 S. W. 650;

revocation thereof; or it may be done secretly and by implication, as by giving away or voluntarily alienating the thing bequeathed. He defines the translation of a legacy as the bestowing of the same on another, which is likewise an ademption; and therefore there may be an ademption without a translation, but there can be no translation without an ademption.2

Burnham v. Comfort, 108 N. Y. 535, 2 Am. St. Rep. 462, 15 N. E. 710; Allen v. Allen, 13 S. C. 512, 36 Am. Rep. 716; Clark v. Jetton, 5 Sneed (37 Tenn.) 229, 236.

Compare:

Hansbrough's Exrs.

v. Hooe, 12 Leigh (Va.) 316, 37 Am. Dec. 659.

Alderson, B., in Davys v. Boucher, 3 Y. & C. 397, said that so far as his researches had extended, he did not find any instance of ademption having been extended to devises of real estate.

The distinction has been uniformly made by the courts, not because the equities were not the same, but because of the safeguards which have ever been thrown around transfers of real estate. Fisher v. Keithley, 142 Mo. 244, 64 Am. St. Rep. 560, 43 S. W. 650.

"We do not think the courts, at this day, should take the initiative in abrogating a rule which has been so long and so universally approved."-Fisher v. Keithley, 142 Mo. 244, 64 Am. St. Rep. 560, 43 S. W. 650.

"A rule of law which has heretofore been sanctioned and relied upon, which is in unison with the

spirit and with the sense of our statute, which offers a safe rule of property, is rather to be followed than to be departed from for reasons moving from the circumstances of a particular case."Burnham v. Comfort, 108 N. Y. 535, 541, 2 Am. St. Rep. 462, 15 N. E. 710.

In a Virginia case wherein a devise of re al property was adeemed by a subsequent marriage settlement, the prevailing opinion said "that no case has occurred in which the doctrine of ademption of legacies has been extended to devises of real estate. This is true. But it is equally true that there is no case, in Virginia at least, deciding that the doctrine is inapplicable to such devises."-Hansbrough v. Hooe, 12 Leigh (Va.) 316, 322, 37 Am. Dec. 659.

Regarding devises of real estate, see, post, §§ 744-748.

As to revocation of a devise by reason of a conveyance thereof, or an agreement to convey, by the testator, or an alteration of his estate generally, see §§ 540-545. 2 Swinb. Wills, 522, 526.

Ademption, strictly speaking, is applicable only to specific legacies, and where a specific article bequeathed does not exist at the time of the testator's death, there is an ademption of the legacy. It has been defined as the extinction or withholding of a legacy in consequence of some act of the testator. Ademption, perhaps, may better be said to be the extinction of a legacy, or the withdrawal thereof by some act of the testator equivalent to a revocation of the bequest or which indicates such an intention. It may be accomplished in several ways, to which we will hereafter refer.

§709. Ademption and Satisfaction Distinguished.

The words "ademption" and "satisfaction" are often interchangeably used, but the highest authorities clearly distinguish them. Ademption may result from the accidental loss or destruction of some specific article bequeathed, but generally speaking, ademption differs from satisfaction in that it is accomplished solely by the act of the testator, and in all cases without the necessity of the consent of the legatee. A testator may make a specific bequest of a designated article. His testament is revocable. Subsequently he may transfer the thing bequeathed either to the legatee named or to another. Since

3 Tanton v. Keller, 167 Ill. 129, 47 N. E. 376; Beck v. McGillis, 9 Barb. (N. Y.) 35.

4 Ellard v. Ferris, 91 Ohio St. 339, 110 N. E. 476.

5 Kramer v. Kramer, 201 Fed. 248, 250, 119 C. C. A. 482; Kenaday v. Sinnott, 179 U. S. 606, 45 L. Ed. 339, 21 Sup. Ct. 233; In re Goodfellow's Estate, 166 Cal. 409,, 137 Pac. 12; Estate of Brown, 139 II Com. on Wills-12

Iowa 219, 117 N. W. 260; Burnham v. Comfort, 108 N. Y. 535, 2 Am. St. Rep. 462, 15 N. E. 710.

6 "I think that a full view of the cases and a consideration of the doctrine on this subject do not justify the observation that there exists no distinction between ademption and satisfaction. I venture to think that the distinction is marked, and that it is recognized in all the decided cases on

the testator has parted with the property, it can not pass under his will, and the legacy is adeemed. Or after making his will the testator may transfer other property to the legatee and may, either by express words or by implication of law, substitute the second gift for the one contained in his will, which he has the power of altering. The legacy is thereby adeemed, or taken out of the will. The ademption is occasioned by the act of the testator alone. But if the testator is under some prior financial obligation to a particular person, and executes his will with a bequest in favor of such person which is stated to be in satisfaction of the obligation, the beneficiary can elect whether or not he will take under the will. The testator is not the sole arbiter. The term "ademption" could not be applied to such a case, "satisfaction" being proper. Where a parent makes a general bequest in favor of one of his children and later gives him money by way of advancement, the presumption being against double portions, the prior legacy may be satisfied in this way. The will is not revoked, even partially, but the legacy is taken out of the will by the act of the testator. Such satisfaction of the legacy may to an extent be deemed an ademption thereof, but it must not depend upon the assent of the legatee. The doctrine of satisfaction or ademption of legacies by advancements to the legatee by the testator in his lifetime, is not applicable to specific legacies."

the subject.". - Lord Romilly, in Lord Chichester v. Coventry, L. R. 2 H. L. Cas. 71, 90.

7 Lord Chichester v. Coventry, L. R. 2 H. L. Cas. 71; Lord Durham v. Wharton, 3 Cl. & Fin. 146; In re Tussaud's Estate, L. R. 9 Ch. Div. 363, 380; Suisse v. Low

ther, 2 Hare 424; Pym v. Lockyer, 5 Myl. & C. 29, 34.

As to satisfaction of a former legacy by a later one, see cumulative and substitutional legacies, §§ 682-686.

8 See citations in preceding note. 9 Weston v. Johnson, 48 Ind. 1.