the advanced portion be given to the child upon the occasion of his or her marriage or other occasion calling for it, the same presumption prevails.30 But the principle applies only to the duty to make provision for the child. Money expended by a father for the professional education of his son,31 or a conveyance from a father to his son for an adequate consideration of value, can not be presumed to be by way of advancement.32

The rule in regard to ademption by an advance payment from one in loco parentis, is based upon the equitable presumption that the parent intends to make an equal provision for his children, and not to give double portions to any.33 Accordingly, if a contrary intention be shown, the presumption falls, and the rule ceases to apply. For example, where a father who had previously conveyed land to a son in consideration of his releasing all claims of inheritance, made a will in which he di

30 Schofield v. Heap, 27 Beav. 93; Trimmer v. Bayne, 7 Ves. Jun. 508, 6 Rev. Rep. 173; Phillips v. Phillips, 34 Beav. 19; May v. May, 28 Ala. 141; Paine v. Parsons, 14 Pick. (31 Mass.) 318; Hansbrough v. Hooe, 12 Leigh (Va.) 316, 37 Am. Dec. 659.

31 White v. Moore, 23 S. C. 456. 32 Miller's Appeal, 107 Pa. St. 221.

33 Ex parte Pye, 18 Ves. Jun. 140; Grave v. Salisbury, 1 Bro. C. C. 425, 427; Watson v. Lincoln, Amb. 325.

rected that his son should share in his estate "with the rest of my heirs," it was considered to revoke the prior arrangement, and to entitle the son to take a portion of the estate.34 The word "advancement" as used in a will in its general sense to denote gifts or loans to a son, is not to be construed according to its strict technical meaning.35

§ 735. The Same Subject: Slight Differences Between Gift and Legacy.

Slight circumstances of difference between the advancement and the portion bequeathed will not repel the presumption against double portions. A mere difference in amount will not preclude the inference of intention to adeem the legacy in whole or in part. If the amount of the advance be equal to or greater than the legacy, the latter will be wholly adeemed, but if less, then the ademption will be pro tanto only. The presumption that an advancement of a sum smaller than the legacy was an ademption pro tanto only, has been held not to be overthrown by evidence that more than a year before the advancement was made the testatrix asked the legatee

34 Turner's Appeal, 52 Mich. 398, 18 N. W. 123.

35 Eisner v. Koehler, 1 Demarest (N. Y.) 277; Wright's Appeal, 93 Pa. St. 82; s. c., 89 Pa. St. 67. See, also, Porter's Appeal, 94 Pa. St. 332.

A clause in a will reading, "I hereby declare that any advancements I may hereafter personally make to the before mentioned legatees or to either of them shall be deemed partial satisfaction of said legacy," was held not to apply to

subsequent legacies left by the testator to the same legatees, but that the testator meant by the word "advancements" any money or property which he might give to said legatees before his death. -In re Zeile's Estate, 74 Cal. 125, 136, 15 Pac. 455.

36 Hoskins v. Hoskins, Prec. Ch. 263; Thellusson v. Woodford, 4 Mad. 420; Clendening v. Clymer, 17 Ind. 155; Benjamin v. Dimmick, 4 Redf. (N. Y.) 7.

whether she would prefer to have the smaller sum "down" or a larger sum after the testatrix's death, and that the legatee had replied that she would prefer the smaller "down.''37

§ 736. The Same Subject: Exceptions to General Rule.

An exception to the presumption of ademption is made in the case where the legacy and the gift are not the same in kind.38 Thus, a devise of real estate is not to be adeemed by a payment in money, without clear proof that it was so intended; nor a legacy in money by a share in a business.40 A second exception occurs when the subsequent advancement depends upon a contingency, and the testamentary portion is certain." A third exception arises where the legacy or the advancement is not given as a portion, but in lieu of property to which the child is otherwise entitled.42 A fourth exception is in a case where the legacy to the child is absolute, and the gift is for life only with the capital over to others than the issue of the child.43

Fifthly, the doctrine of ademption of legacies by gifts during the life of the testator is applicable principally to general legacies of definite amounts of money, rather than to specific or residuary legacies. As to residuary

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

38 Clendening v. Clymer, 17 Ind. 155; Benjamin v. Dimmick, 4 Redf. (N. Y.) 7; Allen v. Allen, 13 S. C. 512, 36 Am. Rep. 716.

39 Allen v. Allen, 13 S. C. 512, 36 Am. Rep. 716; Evans v. Beaumont, 4 Lea (72 Tenn.) 599.

40 Holmes v. Holmes, 1 Bro. C. C. 555.

41 Crompton v. Sale, 2 P. Wms. 553; Spinks v. Robins, 2 Atk. 491, 493; Powys v. Mansfield, 3 Myl. & C. 359, 374, 375; Benjamin v. Dimmick, 4 Redf. (N. Y.) 7.

42 Baugh v. Read, 1 Ves. Jun. 257.

43 Alleyn v. Alleyn, 2 Ves. Sen. 38; Trimmer v. Bayne, 7 Ves. Jun. 508, 516.

legacies it has been said that they could neither be adeemed nor satisfied since the amounts thereof are always indeterminate and in some cases nothing may remain, and that, therefore, no presumption could arise as to intended ademption or satisfaction. But the more correct rule is that the question of satisfaction or ademption does not depend upon the indefinite character of a residuary legacy, but is a matter of intention as in other cases of ademption.""

§ 737. Reason for Presumption of Satisfaction of Legacy by Advanced Portions.

The rule that advanced portions will cause the ademption of a prior legacy is applied on the same principle as

44 Watson v. Earl of Lincoln, Ambl. 325, 327; Freemantle v. Bankes, 5 Ves. Jun. 79, 85; Farnam v. Phillips, 2 Atk. 216; Smith v. Strong, 4 Bro. C. C. 493. See, also, Davis v. Whittaker, 38 Ark. 435; Clendening v. Clymer, 17 Ind. 155, 159; Gray v. Bailey, 42 Ind. 349; Weston v. Johnson, 48 Ind. 1; Langdon v. Astor, 16 N. Y. 9, 33; Allen v. Allen, 13 S. C. 512, 36 Am. Rep. 716.

45 Montefiore v. Guedalla, 6 Jur. N. S. 329; Dawson v. Dawson, L. R. 4 Eq. 504; Sims v. Sims, 10 N. J. Eq. (2 Stockt. Ch.) 158; Van Houten v. Post, 32 N. J. Eq. 709, 712.

As to a bequest of the residue of an estate being in satisfaction of a portion, wholly or partially, according to amount, see Lady Thynne v. Earl of Glengall, 2 H. L. Cas. 131.

1 Roper on Legacies 379, 380, is

authority for a sixth exception in relation to devises of real estate. In Davys v. Boucher, 3 You. & C. 397, it was said by Alderson, B., that as far as his researches had extended, he had not found any instance of this principle having been extended to devises of real estate. Weston v. Johnson, 48 Ind. 1. While some authorities would seem to sustain this statement, in Burnham v. Comfort, 37 Hun (N. Y.) 216; Clark v. Jetton, 5 Sneed (37 Tenn.) 229, 236; Williams v. Bolton, 1 Dick. 405; Lechmere v. Carlisle, 3 P. Wms. 211; Wilcocks v. Wilcocks, 2 Vern., pt. 2, 558, its correctness has been doubted. Dissenting opinion of Boardman, J., in Burnham v. Comfort, 37 Hun (N. Y.) 216, 218, where the authorities are reviewed at length.

See 708, n. 1.

that of advancements in cases of intestacy. It is founded on the presumption that a parent intends all the natural objects of his bounty to share equally in his estate. Where he makes a gift to a child of a similar amount of money previously given by a general legacy in his will, it is presumed that he intends to take away the legacy, wholly or partially, according to the value of the gift. The relationship of the parties creates the presumed intention, therein differing from the case where the legatee is a stranger, although the actual intention may always be shown.16 The rule seems unreasonable, as putting a stranger on a better footing than the testator's own children, but it is well established.47 There are, however, cogent reasons in its favor. A legacy from a father to his child is deemed a portion, double portions are not favored, and a father's natural inclination to treat his children alike renders it more probable that his gift was in the nature of an advancement rather than a discrimination in favor of one.48

8738. Advancements, Value Thereof and Interest Thereon. The value of an advancement is to be computed as of the date at which it was made and possession taken;19

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

47 "But here, as in many other cases, we must be content to declare, Ita lex scripta est-It is established, although it may not be entirely approved."-2 Story, Eq. Jur., § 1110.

"This rule has excited the regret and censure of more than one eminent judge, though it has met with approbation from other high authorities."-2 Williams Exrs. (7th Am. ed.) 1194.

48 Suisse v. Lowther, 2 Hare 424; Richardson v. Eveland, 126 Ill. 37, 1 L. R. A. 203, 18 N. E. 308; Weston v. Johnson, 48 Ind. 1; Estate of Youngerman, 136 Iowa 488, 15 Ann. Cas. 245, 114 N. W. 7; Carmichael v. Lathrop, 108 Mich. 473, 32 L. R. A. 232, 66 N. W. 350; Mat ter of Weiss, 39 Misc. Rep. 71, 78 N. Y. Supp. 877.

49 Pigg v. Carroll, 89 Ill. 205; Kyle v. Conrad, 25 W. Va. 760.