queathed does not act as an ademption thereof, and the legatee may call upon the executor to redeem them."" 45 §719. Ademption by Change in Form of Property Bequeathed. Some early English decisions were to the effect that any change in the form of personalty specifically bequeathed would work an ademption. However, it was held that ademption was dependent on the presumed intention of the testator, and therefore a change affected by public authority or without the will of the testator did not cause such a result. But the present English rule seems to be that where a change has occurred in the nature of personalty specifically bequeathed, even though affected by virtue of an act of Parliament, ademption will follow. An exception, however, is recognized as in the case where shares in a company are converted into another form by a vote of the company, the change being in name rather than substance.48 Where the testator of his own volition affects the change in the form of the property, such as converting debentures into debenture stock, a specific legacy of the former is adeemed.19 In the United States the general rule is that slight or immaterial changes in the form of personalty specifically bequeathed, will not work an ademption.50 Thus the transformation of state to national bank stock is not 44 Ashburner v. Macguire, 2 Bro. C. C. 108. 45 Ashburner V. Macguire, 2 Bro. C. C. 108; Badrick v. Stevens, 3 Bro. C. C. 431; Gardner v. Hatton, 6 Sim. 93; Fryer v. Morris, 9 Ves. Jun. 360. 46 Bronsdon v. Winter, Ambl. 57. 47 In re Slater, L. R. (1907) 1 Ch. 665. 48 Oakes v. Oakes, 9 Hare 666. 49 In re Lane, L. R. 14 Ch. Div. 856. See, also, Harrison v. Jackson, L. R. 7 Ch. Div. 339. 50 In re Frahm's Estate, 120 Iowa 85, 94 N. W. 444; Brady v. Brady, 78 Md. 461, 28 Atl. 215; Prendergast v. Walsh, 58 N. J. Eq. 149, 42 Atl. 1049. such a change as will cause a legacy of the former to fail.51 § 720. The Same Subject: Conversion After Testator's Death, or While He Is of Unsound Mind. Where the change in the form of property specifically devised is effected without the knowledge or consent of the testator, as where the conversion takes place while he is of unsound mind, ademption does not result.52 The conduct of an executor, after the death of the testator, in substituting or exchanging stocks for bonds, can not work an ademption;53 it must take place during the life of the testator.54 § 721. Ademption by Removal of Property. In order that a specific legacy may take effect, the subject matter thereof must, at the time of the testator's death, correspond to the description given in the will.55 Thus, if a bequest be made which is described as all that the testator owns of a particular kind of property located in a certain place, the removal of the property to another 51 Maynard v. Mechanics' Nat. Bank, 1 Brewst. (Pa.) 483. Where the form of a fund has been changed from a deposit in a bank to an investment in bonds, the fund has not ceased to exist, but remains in an altered form, and such a change does not work an ademption of the legacy.Cornwell v. Mt. Morris M. E. Church, 73 W. Va. 96, 80 S. E. 148. In Kenaday v. Sinnott, 179 U. S. 606, 45 L. Ed. 339, 21 Sup. Ct. Rep. 233, it was held that a change from money into bonds was not an ademption where the intention of the testator was clearly indiIcated in the will. 52 Jenkins v. Jones, L. R. 2 Eq. 323. 53 In re Frahm's Estate, 120 Iowa 85, 94 N. W. 444. 54 Maynard v. Mechanics' Nat. Bank, 1 Brewst. (Pa.) 483. 55 Humphreys v. Humphreys, 2 Cox 184; Hayes v. Hayes, 1 Keen 97; Ashburner v. Macguire, 2 Bro. C. C. 108; White v. Winchester, 6 Pick. (23 Mass.) 48; Walton v. Walton, 7 Johns. Ch. 258, 262. place by his authority or consent will effect an ademption of the legacy,56 as in the case of the removal of furniture on account of the expiration of the lease of a house.57 But if the reference to the location of the specific property bequeathed be merely for the purpose of identifying the goods and not to denote the extent or measure of the legacy, the removal will not work an ademption if the property may still be otherwise identified.58 And if the removal is for mere temporary purposes, there is no ademption since it is the intention that they are to be returned.59 §722. Ademption by Fulfillment of Purpose for Which Legacy Was Given. If a testator who has given a legacy for a specified purpose, himself after the execution of the will carries out the purpose in his lifetime, he is presumed to have in 56 Spencer v. Spencer, 21 Beav. 548; Heseltine V. Heseltine, 3 Madd. Ch. 276; Colleton v. Garth, 6 Sim. 19; Basan v. Brandon, 8 Sim. 171; Shaftsbury v. Shaftsbury, 2 Vern. 747; Patton v. Patton, 2 Jones Eq. (55 N. C.) 494. 57 Colleton v. Garth, 6 Sim. 19. Contra: When the removal is on account of fire (Chapman v. Hart, 1 Ves. Sen. 271); or when on account of the testator's alternate residence in two houses, Land v. Devaynes, 4 Bro. C. C. 537. Where the testator directed his furniture in Gloucester Square to be applied in payment of his debts, and later in the same will gave all his furniture in England to his sisters, and thereafter he A bequest of goods aboard ship was held good and not adeemed, although they were afterwards removed and were not on board at the testator's death.-Chapman v. Hart, 1 Ves. Sen. 271. 59 Spencer v. Spencer, 21 Beav. 548; Land v. Devaynes, 4 Bro. C. C. 537; Brooke v. Warwick, 2 De G. & S. 425. tended to cancel the legacy, and it will be held adeemed." For example, where a testator bequeathed money to pay the debt on a chapel, and afterward paid the debt himself, although the sum was less than the bequest, the payment was considered an ademption of the legacy.1 But the purpose for which the legacy is given and the subsequent advancement thereof must correspond exactly in order to effect an ademption.62 The conveyance to a person of land previously devised to him is a satisfaction of the devise; not so, however, if the conveyance is of a different interest than the estate devised.64 63 § 723. Satisfaction of General Legacies. The satisfaction of a general and the ademption of a specific legacy depend upon different principles, the former on the act and intent of the testator, the latter resulting irrespective of intent.65 A testator, during his lifetime, has the power of disposing of his property or of revoking testamentary dispositions. If specific property bequeathed be not in esse or be not owned by the testator at his death, the legacy is adeemed, motive on the part of the testator being immaterial. But if he bequeaths a sum of money generally and thereafter in his lifetime makes a gift to the legatee expressly as "payment," "satisfaction," "release" or "discharge" of the legacy, the legacy will fail. Any such gift by the testator which can 60 Debeze v. Mann, 2 Bro. C. C. 165, 166; Rosewell v. Bennett, 3 Atk. 77; Taylor v. Tolen, 38 N. J. Eq. 91, 97. 61 Taylor v. Tolen, 38 N. J. Eq. 91. 62 Spinks v. Robins, 2 Atk. 491; Roome v. Roome, 3 Atk. 181; Debeze v. Mann, Bro. C. C. 165. 63 Marshall v. Rench, 3 Del. Ch. 239. 64 Clarke v. Berkeley, 2 Vern. 720; Rider v. Wager, 2 P. Wms. 328; Davys v. Boucher, 3 You. & Coll. 397; Marshall v. Rench, 3 Del. Ch. 239; Arthur v. Arthur, 10 Barb. (N. Y.) 9, 20. 65 See §§ 709-711. be shown by express proof to have been intended as a substitute for the legacy, is a satisfaction of it." If a chattel specifically bequeathed be thereafter delivered by the testator to the legatee, the legacy is both satisfied and adeemed.67 A general legacy is satisfied by a testator, during his lifetime, making a gift to the legatee with the intent that it shall be in satisfaction of or as a substitute for such legacy.68 The intent of the testator is the test, the assent of the legatee not being necessary. Satisfaction does not result because of any act of the legatee in receiving the gift or releasing the legacy, but solely from the act of the testator in substituting other property for that bequeathed with the intent that it shall act as a payment thereof.69 66 Cowles v. Cowles, 56 Conn. 68 Hartopp v. Hartopp, 17 Ves. II Com. on Wills-13 Mich. 567, 119 N. W. 1104; Nor- 69 Cowles v. Cowles, 56 Conn. 240, 13 Atl. 414; Richards v. Humphreys, 15 Pick. (23 Mass.) 133; Ellard v. Ferris, 91 Ohio St. 339, 110 N. E. 476. If a testator's estate be compelled to pay a debt of a legatee for whom the testator was surety, the amount may be offset against a general legacy. — Manning v. Thruston, 59 Md. 218. |