1 § 724. Where Legatee Is a Stranger: Presumptions. Where a testator makes a gift to some person to whom he does not stand in loco parentis, it is not necessarily presumed that it is in payment or in satisfaction of a bequest previously made to the donee.70 If, however, it clearly appears from extrinsic evidence that the testator intended to satisfy the legacy, or if the gift in terms is made as a substitute for the legacy, the legatee takes nothing by the bequest. If the benefit subsequently conferred be the same as that bequeathed or so far identical as to be ejusdem generis, it will be presumed that satisfaction of the legacy was intended." Such presumption, however, may be rebutted by any evidence of the conduct and language of the testator by which it may be demonstrated that the testator considered the legacy as a subsisting benefit.72 § 725. Legacy of a Debt Paid Before Testator's Death. If a specific bequest be made to a legatee of a debt that is owing to the testator, and the debt be paid to the testator before his death, the legacy will be adeemed.73 70 Powel v. Cleaver, 2 Bro. C. C. 499; Fowkes v. Pascoe, L. R. 10 Ch. App. 343; Re Smythies, L. R. (1903) 1 Ch. Div. 259; Kramer v. Kramer, 201 Fed. 248, 119 C. C. A. 482; Rogers v. French, 19 Ga. 316; Swails v. Swails, 98 Ind. 511; Estate of Youngerman, 136 Iowa 488, 15 Ann. Cas. 245, 114 N. W. 7; Wallace v. DuBois, 65 Md. 153, 4 Atl. 402; Carmichael v. Lathrop, 108 Mich. 473, 32 L. R. A. 232, 66 N. W. 350; Grogan v. Ashe, 156 N. C. 286, 72 S. E. 372; Todd's Estate, 237 Pa. 461, 85 Atl. 843; Allen v. Allen, 13 S. C. 512, 36 Am. As to cumulative and substitutional legacies, see §§ 682-689. 71 In re Youngerman's Estate, 136 Iowa 488, 15 Ann. Cas. 245, 114 N. W. 7. 72 Jones v. Mason, 5 Rand. (Va.) 577, 16 Am. Dec. 761. 73 Rider v. Wager, 2 P. Wms. 328; Badrick v. Stevens, 3 Bro. C. C. 431; Barker v. Rayner, 5 Madd. 208; Fryer v. Morris, 9 Ves. Jun. 360; Ford v. Ford, 23 N. H. 212; Wyckoff v. Perrine, 37 N. J. Where a will bequeathed a certain bond and mortgage to trustees to pay the interest to the beneficiary for life, but before the testator died the bond and mortgage were paid to him by the debtor, it was held that the legacy being specific was thereby adeemed, although the money paid to the testator remained on deposit at his bank."+ The partial payment of a debt specifically devised is an ademption pro tanto only." But a legacy forgiving a debt is not adeemed by exchanging the original evidence of the debt for the debtor's bond;78 nor does a mere change in the form of an investment always defeat the gift." Where the change in the form of the property Eq. 118; Walton v. Walton, 7 Where a testatrix bequeathed any and all sums that might thereafter be payable to her or her estate from insurance policies on her husband's life, the collection of the same by her during her lifetime, and the mingling of the funds with her other property, worked an ademption of the legacy.-Nusly v. Curtis, 36 Colo. 464, 118 Am. St. Rep. 113, 10 Ann. Cas. 1134, 7 L. R. A. (N. S.) 592, 85 Pac. 846. 74 Abernethy v. Catlin, 2 Demarest (N. Y.) 341. Where a debt or specific chattel is bequeathed, the specific legacy is extinguished in the lifetime of the testator, by the extinguishment of the thing itself, as by the payment of the debt, or by the sale or conversion of the chattel. 75 Ashburner V. Macguire, 2 Bro. C. C. 108; Fryer v. Morris, 9 Ves. Jun. 360; Barker v. Rayner, 5 Madd. 208; Hoke v. Herman, 21 Pa. St. 301. 76 Irwin's Succession, 33 La. Ann. 63. 77 Browne v. McGuire, 1 Beatt. 358; In re Johnstone, L. R. 14 Ch. Div. 162, doubting Gale v. Gale, 21 Beav. 349; Walton v. Walton, 7 Johns. Ch. (N. Y.) 258, 265. Under the Georgia Code, "if the testator exchanges the property bequeathed for other of the like character, or merely changes the investment of a fund bequeathed, the law deems the intention to be, to substitute the one for the other, and the legacy shall not fail."— Ga. Code, (1861) § 2432; Ga. Code, (1882) § 2464. See, also, Clark v. Browne, 2 Smale & G 524; Brons bequeathed is effected without the authority of the testator, there is no ademption,78 unless it be by operation of law.79 § 726. Legacy to Debtor by Creditor: No Presumption That Debt Is Forgiven. A pecuniary legacy by a testator to one who at such time is indebted to him does not raise a presumption that the testator intends to forgive the debt;80 and this is so even though a legacy to another person is by the same will made conditional upon the payment by the legatee of a debt due from him to the testator equal in amount don v. Winter, Amb. 57; Hambling v. Lister, Amb. 401; Graves v. Hughes, 4 Madd. 381. By statute, in Kentucky, the conversion in whole or in part of money or property, or the proceeds of property devised to one of the testator's heirs, into other property or thing, with or without the consent of the testator, will not be an ademption of the legacy or devise, unless the testator so intended, but the devisee shall have and receive the value of such devise, unless a contrary intention on the part of the testator appear from the will, or by parol or other evidence; nor in that state does the removal of property devised operate as an ademption, unless it appear that such was the testator's intention. -Stimson's Am. Stat. Law, § 2811, citing Ky. Genl. Stats., (1873) ch. 50, §§ 1, 3. 78 Shaftsbury v. Shaftsbury, 2 Vern. 747. 79 Partridge v. Partridge, Cas. temp. Talb. 226. Where stock in a certain railroad, specifically devised by a testator who afterwards became insane, was sold under an order of lunacy and the proceeds invested in consols which were carried to the credit of the lunatic on an account entitled, "proceeds of the sale of stock in the G. Railway Company," the legacy was considered adeemed, and the consols fell into the residue.-Freer v. Freer, L. R. 22 Ch. Div. 622. See, also, Jones v. Green, L. R. 5 Eq. 555; In re Leeming, 3 De Gex, F. & J. 43. 80 Spath v. Ziegler, 48 La. Ann. 1168, 20 So. 663; Blackler v. Boott, 114 Mass. 24; Rickets v. Livingston, 2 Johns. Cas. (N. Y.) 97, 1 Am. Dec. 158; Clarke v. Bogardus, 12 Wend. (N. Y.) 67; Sharp v. Wightman, 205 Pa. St. 285, 54 Atl. 888. 81 to that of the legacy. No different presumption arises whether the debt is incurred before or after the making of the will, but the debt may be applied in payment of the legacy. 82 A testator may in his will expressly forgive a debt and give a legacy in addition thereto, but such intention must be clear and unambiguous in order to warrant such construction.88 Where the will declared that "all foregoing legacies are intended and declared to be for the individual estate of said legatees, exclusive of any indebtedness to me at this date or otherwise," the legatees were not released from indebtedness due from them to the testator, but the language of the will was construed to mean that their legacies should be paid them irrespective of their debts which might be collected in the ordinary manner.84 The preservation by the testator of the uncanceled evidence of the legatee's indebtedness is strong evidence that it was not his intention to forgive the debt.85 A leg of a trust created by the will for the legatee's benefit.-Matter of Bogert, 41 Misc. Rep. 598, 85 N. Y. Supp. 291. 83 Baldwin v. Sheldon, 48 Mich. 580, 12 N. W. 872; Rickets v. Liv. ingston, 2 Johns. Cas. (N. Y.) 97, 1 Am. Dec. 158; Sharp v. Wightman, 205 Pa. St. 285, 54 Atl. 888. 84 Baldwin v. Sheldon, 48 Mich. 580, 12 N. W. 872. 85 Leask v. Hoagland, 64 Misc. Rep. 156, 118 N. Y. Supp. 1035. When a note twenty-four years old was found among the papers of the testator, the presumption of payment prevented its being treated as an advancement. White v. Moore, 23 S. C. 456. acy by a creditor to the wife of a debtor is not a satisfaction of a debt due to the testator.86 § 727. The Same Subject: Parol Evidence of Intention. Parol evidence on an issue as to whether or not a legacy was intended to forgive a debt from the legatee to the testator, is generally admissible; it does not offend against the rule forbidding the varying or altering of a written instrument by oral testimony.87 § 728. Legacy to Creditor as Satisfaction of Debt: General Rule. The general rule, early established in equity, is that where a testator, owing an ordinary debt, bequeaths to a creditor money of equal or greater value than the debt, the presumption, in the absence of any circumstances showing a contrary intent, is that the legacy is intended as a satisfaction of the debt, it being reasonably supposed that such was the intention of the testator.88 The rea 86 Clarke v. Bogardus, 12 Wend. (N. Y.) 67. 87 Cuthbert v. Peacock, 2 Vern. 593; Pole v. Somers, 6 Ves. Jun. 309, 324; Wallace v. Pomfret, 11 Ves. Jun. 542; Bromley v. Atwood, 79 Ark. 357, 96 S. W. 356; Henry v. Henry, 81 Ky. 342; Gilliam v. Brown, 43 Miss. 641; Williams v. Crary, 4 Wend. (N. Y.) 443; Zeigler v. Eckert, 6 Pa. St. 13, 47 Am. Dec. 428. In a case where the testator had bequeathed $500 to his sister, and later advanced her $466 to purchase some land, for which sum he took a receipt, and he stated to her that he was desirous of paying off the legacy and offered to pay her the residue, which she refused, the receipt and the declarations of the testator were admissible to show that the payment was intended as an ademption pro tanto of the legacy.-Richards v. Humphreys, 15 Pick. (Mass.) 133. 88 Atkinson v. Webb, 2 Vern. 478; Nicholls v. Judson, 2 Atk. 300; In re Horlock, L. R. (1895) 1 Ch. Div. 516; In re Rattenberry (Ray v. Grant), L. R. (1906) 1 Ch. Div. 667, 4 Ann. Cas. 457; Tompson v. Wilson, 82 Ill. App. 29; Cloud v. Clinkinbeard, 8 B. Mon. (Ky.) 397, 48 Am. Dec. 397; Buckner v. Martin, 158 Ky. 522, L. R. A. |