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Although the term "advancements" may not be strictly applicable with reference to the ademption of legacies, yet the result is practically the same. Where a parent makes a bequest in favor of his child, the law presumes the legacy as a portion to which the child would thereafter become entitled, out of the parent's estate. If such parent thereafter transfers money or property to such child, since the law does not favor double portions, such gift will be presumed, under conditions hereinafter mentioned, as an advanced payment of the natural obligation of parent to child. The result is that the legacy is satisfied or adeemed, in whole or in part, according to the amount of the subsequent payments made by the testator to his child.10

§ 731. Meaning of "In Loco Parentis."

The rule as to advancements applies only to those to whom the donor stands in loco parentis. As to what constitutes such relationship, the authorities are not entirely harmonious. Primarily it has reference to the duty assumed by one to make provision for another because of a parental obligation so to do, such as the duty of a father to make provision for his children.11 If the child

kimer v. McGregor, 126 Ind. 247, 254, 25 N. E. 145, 26 N. E. 44; Proctor v. Newhall, 17 Mass. 81.

9 Watson v. Lincoln, Ambl. 325; Pym v. Lockyer, 5 Myl. & C. 30, 35; Wallace v. DuBois, 65 Md. 153, 4 Atl. 402.

10 Jenkins v. Powell, 2 Vern. 115; Hartop V. Whitmore, 1 P. Wms. 681; Trimmer v. Bayne, 7 Ves. Jun. 508, 515; Grave v. Salisbury, 1 Bro. C. C. 425; Sidney v. Sidney, L. R. 17 Eq. 65; Wilson

v. Smith, 117 Fed. 707; May v. May, 28 Ala. 141; Clayton v. Akin, 38 Ga. 320, 95 Am. Dec. 393; Hayward v. Loper, 147 Ill. 41, 51, 35 N. E. 225; Davis v. Close, 104 Iowa 261, 73 N. W. 600; Wallace v. DuBois, 65 Md. 160, 4 Atl. 402; Langdon v. Astor, 16 N. Y. 9; In re Turfler's Estate, 1 Misc. Rep. 58, 23 N. Y. Supp. 135; Williams v. Batchelor, 74 N. C. 557.

11 Ex parte Pye, 18 Ves. Jun. 140; Powys v. Mansfield, 3 Myl.

be illegitimate, the common law rule is that the relationship does not exist.12 The relationship, however, has been held applicable to a grandfather who assumed such obligation;13 but in South Carolina, ademption is not presumed from advanced gifts to grandchildren. 14 Under a New York statute relating to advancements, the word "children" has been held to embrace all an intestate's descendants who were entitled to share in his estate.15 Uncles have been included,16 also excluded.17 The principle of advancements can not be applied to gifts from a husband to his wife,18 but it has been extended to a case of a moral obligation, other than parental, which was previously recognized in the donor's will.19

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L. R. 10 Ch. Div. 474.

12 Ex parte Pye, 18 Ves. Jun. 140; Smith v. Strong, 4 Bro. C. C. 493.

As to rights of illegitimate children, see § 642.

13 Pym v. Lockyer, 5 Myl. & C. 30.

14 Allen v. Allen, 13 S. C. 512, 36 Am. Rep. 716.

In a South Carolina case, a testatrix gave property, during her lifetime, in unequal portions to her three daughters and married son, which they received at a valuation to be accounted for in the final settlement of her estate. Her will directed that her entire estate bè divided in equal shares to the daughters and to her son, in trust for the wife and children of the latter. It was decided that the trust estate to his wife and children was distinct from the ad

vancements to the son, and was not to be charged with what he had received over and above onefourth; but that as between the daughters and the son's wife and children, the former must each account for what had come to them over and above one-fourth of the entire estate. Kennedy v. Badgett, 26 S. C. 591, 2 S. E. 574. 15 Beebe v. Estabrook, 79 N. Y.

246.

16 Powys v. Mansfield, 3 Myl. & C. 359.

17 Dunham v. Averill, 45 Conn. 61, 87, 29 Am. Rep. 642; Gilchrist v. Stevenson, 9 Barb. (N. Y.) 9, 16. 18 In re Morgan (Le Coulteux de Caumont v. Morgan), 104 N. Y. 74, 9 N. E. 861.

19 Pollock v. Worrall, L. R. 28 Ch. Div. 552.

Where a testatrix bequeathed to a niece of her deceased husband five hundred pounds, "according

§732. The Same Subject: Gift by Parent to Spouse of Child.

The decisions are not harmonious on the question as to whether or not a gift by a parent to the husband or wife of his child shall be deemed an advance payment of a legacy theretofore given such child. Thus, a gift to the husband of a daughter upon the occasion of her marriage, of the exact amount theretofore bequeathed such daughter, without stating anything regarding a satisfaction of the legacy, has been held not to work an ademption thereof. The fact that the testator subsequently said the money had been advanced in lieu of the bequest, but not in the presence of the daughter, did not alter the rule.20 Gifts of money to the husband of a child prior to the execution of his will which makes no mention thereof, can not be charged to the child.21 But in Maryland an advancement to a daughter's husband is an advancement to the daughter.22 And it has been said that whether or not such a legacy is satisfied depends on the intention of the testator.23

§ 733. Legacy Must Precede Advanced Portion in Point of Time, Otherwise No Deduction.

The rule as to deducting advanced portions from legacies given in a will is applicable only where the testa

to the wish of my late beloved husband," and afterwards in her lifetime paid three hundred pounds to the niece, making an entry in her diary at the same time that the payment was a "legacy" from the legatee's "Uncle John," the court considered that an ademption pro tanto was thereby effected.-Pollock v. Worrall, L. R. 28 Ch. Div. 552.

20 Ravenscroft v. Jones, 32 Beav. 669; Hart v. Johnson, 81 Ga. 734, 8 S. E. 73.

21 In re Lyon's Estate, 70 Iowa 375, 30 N. W. 642.

22 Dilley v. Love, 61 Md. 603. Contra: Rains v. Hays, 6 Lea (Tenn.) 303, 40 Am. Rep. 39.

23 McClure v. Evans, 29 Beav. 422.

mentary gift precedes the advanced payment. There can be no deduction unless the advanced payment is made subsequent to the execution of the testator's will wherein a legacy or devise is given to one to whom payment is thereafter made, except the will so direct, or there be an agreement or understanding on the part of the beneficiary that the prior payment shall be applied to reducing the legacy.24 To apply a gift made before the execution of a will in full or part satisfaction of a legacy therein necessarily varies the terms of the legacy and the expressed intention of the testator.25 The rule may be stated to be that a legacy is not adeemed unless the legatee received the money from the testator after the execution of the will and, further, that such money was advanced as a portion with the intention of satisfying the legacy.26 Advances made prior to the execution of the donor's will are not

24 Jaques v. Swasey, 153 Mass. 596, 12 L. R. A. 566, 27 N. E. 771; Matter of Crawford, 113 N. Y. 560, 5 L. R. A. 71, 21 N. E. 692.

Where a testatrix, after declaring in her will that she had previously loaned to each of the legatees the sum of four thousand dollars, expressly directed that her estate should have due credit therefor and that these amounts should be deducted from the shares of the legatees, it was held that the shares given to the legatees should be diminished by the amount of said loans, notwithstanding in a previous document to which the will made no reference, the testatrix has released the legatees from paying such loans.

In re Tompkin's Estate, 132 Cal. 173, 64 Pac. 268.

This rule has been applied to a single gift, even where advancements were designated as such at the time when made.-In re Cumming's Estate, 120 Iowa 421, 94 N. W. 1117.

Where a testator directed that advancements should be deducted from the respective shares of his children, and one of them had received from his father more than the amount of his share, he was required to repay the excess to the estate. Sayre v. Sayre, 32 N. J. Eq. 61.

25 Jaques v. Swasey, 153 Mass. 596, 12 L. R. A. 566, 27 N. E. 771.

26 Van Houten v. Post, 33 N. J. Eq. 344.

to be offset against legacies under a will making no mention of them and directing an equal division of the residue of the estate among the children of the testator.27 So, also, a legacy in one will, repeated in a subsequent one, will take effect notwithstanding an advancement made prior to the execution of the latter.28

§ 734. Presumption as to Advanced Portions: General Rule.

Where a parent has given a legacy to a legitimate child without stating the purpose for which it was given, he is presumed by law to have intended it as a portion, and so if before his decease he make other provision for the child, it will be deemed to have been in lieu of the legacy; and the advanced portion and the legacy being for the same purpose, the latter will be adeemed.20 Though

27 Brewton v. Brewton, 30 Ga. 416; In re Lyon, 70 Iowa 375, 378, 30 N. W. 642; Loring v. Blake, 106 Mass. 592; Richmond v. Vanhook, 3 Ired. Eq. (38 N. C.) 581; Snelgrove v. Snelgrove, 4 Desaus. Eq. (S. C.) 274. See, also, Upton v. Prince, Cas. temp. Talb. (3rd ed.) 71.

28 Clark v. Kingsley, 37 Hun (N. Y.) 246.

See, however, Low v. Low, 77 Me. 37, where a son for a sum of money released the payment of legacies under an existing will "or any other will."

29 Farnham v. Phillips, 2 Atk. 215; Ward v. Lant, Prec. Ch. 182; Scotton v. Scotton, 1 Strange 236; Watson v. Lincoln, Amb. 325; Grave v. Salisbury, 1 Bro. C. C. 425, 427; Jenkins v. Powell, 2 Vern. 115; Chichester v. Coventry,

L. R. 2 H. L. Cas. 71; In re Tussaud, L. R. 9 Ch. Div. 363; Clendening v. Clymer, 17 Ind. 155; Weston v. Johnson, 48 Ind. 1; Roquet v. Eldridge, 118 Ind. 147, 20 N. E. 733; Wallace v. DuBois, 65 Md. 153, 4 Atl. 402; Richards v. Humphreys, 15 Pick. (Mass.) 133; Carmichael v. Lathrop, 108 Mich. 473, 32 L. R. A. 232, 66 N. W. 350; Twining v. Powell, 2 Coll. Cas. 262; Ellard v. Ferris, 91 Ohio St. 339, 110 N. E. 476; Johnson v. Patterson, 13 Lea (Tenn.) 626; Jones v. Mason, 5 Rand. (Va.) 577, 16 Am. Dec. 761; Moore v. Hilton, 12 Leigh (Va.) 1.

The presumption arising from the passing of money from the parent to the child has been said to be so slight and so easily overcome, that the rule might be stated to be that whether the

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