should be made from a legacy. Entries in an account book, which appeared not to be contemporaneous with the transactions recorded, have been rejected as evidence of advancements.67 §742. The Same Subject: Oral Declarations: By Whom, Time When Made, and Parties Present. The general rule is that only declarations of the parent contemporaneous with making the gift are admissible to show that it was intended as an advancement.68 But subsequent verbal declarations made by the father to the child, and not at the time controverted by the latter, may be offered in evidence. So, conversely, the declarations of the parent in the absence of the son, not known to the latter nor agreed to by him, can not prove an advancement.70 And, again, if at the time a parent took a note or obligation of a child, anything was said or done to indicate an intention that the payment should be regarded as an advancement, subsequent acts or declarations recognizing that fact are admissible.71 Verbal declarations made by a parent to third persons, that he had made an advancement to the child, are incompetent when offered in the interest of the estate.72 And loose verbal declarations of the father to a third party, that he intended a debt due him from a son to be 66 Benjamin v. Dimmick, 4 Redf. (N. Y.) 7. 67 Nelson v. Nelson, 90 Mo. 460, 464, 2 S. W. 413. 68 Fennell v. Henry, 70 Ala. 484, 45 Am. Rep. 88. See, also, Watkins v. Young, 31 Gratt. (Va.) 84. 69 Nelson v. Nelson, 90 Mo. 460, 463, 2 S. W. 413. 70 Miller's Appeal, 107 Pa. St. 221. 71 Merkel's Appeal, 89 Pa. St. 340; Watkins v. Young, 31 Gratt. (Va.) 84. 72 Ray v. Loper, 65 Mo. 470; Nelson v. Nelson, 90 Mo. 460, 464, 2 S. W. 413. an advancement, are insufficient evidence that such was the fact.78 A son's statement to a third party that he was indebted to his father, and that the amount would be deducted from his share in the paternal estate, is not sufficient evidence that the money was received as an advancement." § 743. The Same Subject: Declarations Against Interest. In connection with the rules laid down in the preceding sections, must be borne in mind the admissibility of accounts or oral declarations against the interest of the declarant, for then it is immaterial when the entries were made or the words spoken. On this ground, where a conveyance has been made by the father to a child, the father's subsequent declarations may be received to show that the conveyance was not an advancement, but an out and out gift.75 § 744. A Devise of Real Property Fails If the Testator Has No Interest Therein at His Death. The term "ademption," as has been shown, is properly applicable only to legacies of personal property.78 But a will operates only upon property legally or equitably belonging to the testator at the time of his death." If a testator die possessing no interest in real property, no testamentary gift of realty, either specific or residuary, can become effective. Although a testator may own certain lands at the time of the execution of his will and 73 Harley v. Harley, 57 Md. 340. See, also, Watkins v. Young, 31 Gratt. (Va.) 84. 74 Green v. Hathaway, 36 N. J. Eq. 471. 75 Johnson v. Beldon, 20 Conn. 322; Phillips v Chappell, 16 Ga. 16; Nelson v. Nelson, 90 Mo. 460, 76 See §§ 708, n. 1; 736, n. 45. 431. may specifically devise them, yet if they are disposed of in any manner during his life, the devise must fail. The disposition by the testator of real property previously devised may effect a revocation of such devise either in express terms or because it is wholly inconsistent with his previously expressed testamentary intention. The effect may be said to be the same as in the case of the ademption of a specific legacy and in many decisions the term ademption has been applied to devises. A sale and conveyance of realty operate as a revocation of a previous devise thereof.78 The same result is reached if the ownership of the property is lost by reason of its sale for the non-payment of taxes,79 or by 78 In re Benner's Estate, 155 Cal. 153, 99 Pac. 715; Worrill v. Gill, 46 Ga. 482; Crist v. Crist, 1 Ind. 570, 50 Am. Dec. 481; Meily v. Knox, 269 Ill. 463, 110 N. E. 56; Walker v. Waters, 118 Md. 203, 84 Atl. 466; White v. Winchester, 6 Pick. (23 Mass.) 48; Brown v. Thorndike, 15 Pick. (32 Mass.) 388; Gregory v. Lansing, 115 Minn. 73, 131 N. W. 1010; Marshall v. Hartzfelt, 98 Mo. App. 178, 71 S. W. 1061; Hattersley v. Bissett, 51 N. J. Eq. 597, 40 Am. St. Rep. 532, 29 Atl. 187; Adams v. Winne, 7 Paige Ch. (N. Y.) 97; Ametrano v. Downs, 170 N. Y. 388, 88 Am. St. Rep. 671, 58 L. R. A. 719, 63 N. E. 340; see 542. Compare: Nutzhorn v. Sittig, 34 Misc. 486, 70 N. Y. Supp. 287. Even if property devised be conveyed by the testator to the devisee in trust for the benefit of the testator himself, it has been held to act as an ademption of the devise. Coulson v. Holmes, Fed. Cas. No. 3274, 5 Sawy. (U. S. C. C.) 279. In New Hampshire, Massachusetts and Maine, when a testator is disseised of lands which he had devised, the devisees take in the same manner that the heirs would have taken had he died intestate; and in the latter two states the devisees have all the remedies for the recovery of the lands that the heirs might have used.-Stimson's Am. Stat. Law, § 2814. As to the implied revocation of a devise from a void conveyance, see § 540. As to revocation of a devise from alteration of the testator's circumstances, see §§ 541, 544, 545. 79 Borden v. Borden, 2 R. I. 94. loss of property through condemnation proceedings. So This is so because the property is subject to the right of sale for the collection of taxes and to right of eminent domain and the taking thereof from the testator is clearly a conveyance by due process of law and is inconsistent with any devise of the property by will. The rule has been applied where the testator exchanged the lands devised for town lots, the property thus acquired passing to the residuary legatee.81 But where the testator parts with only a portion or a part interest in the lands disposed of by his will, the devise will fail pro tanto only,82 § 745. The Same Subject: Effect of Re-Acquiring Ownership. The common law rule was that devises of lands were effective only if the testator owned them at the time of making his will, and also that such ownership continued uninterrupted until his death. An interruption of the ownership worked a revocation.88 This rule has been generally changed by statute, but the decisions are conflicting. The question of revocation is largely statutory, many states having laws similar to the statute of 1 Victoria, ch. 26, sec. 19, which provides that no will shall be revoked by any presumption of intention on the ground so Ametrano v. Downs, 62 App. Div. 405, 70 N. Y. Supp. 833; s. c., 170 N. Y. 388, 88 Am. St. Rep. 671, 58 L. R. A. 719, 63 N. E. 340. 81 Decker v. Decker, 121 Ill. 341, 12 N. E. 750. 82 In re Kean's Will, 9 Dana (Ky.) 25; Walton v. Walton, 7 Johns. Ch. (N. Y.) 258; Brown v. Brown, 16 Barb. (N. Y.) 569; Vandemark V. Vandemark, 26 Barb. (N. Y.) 416; Philson v. 83 See 28. See, also, Miller v. Malone, 109 Ky. 133, 95 Am. St. Rep. 338, 78 S. W. 708; Hawes v. Humphrey, 9 Pick. (26 Mass.) 350, 20 Am. Dec. 481. 84 See §§ 229-234. As to the date from which a will speaks, see §§ 235, 236. of an alteration in circumstances; and sec. 23 of the same act, which says that no conveyance or other act made or done subsequently to the execution of a will of or relating to any real or personal estate therein comprised, except an act by which such will shall be revoked as provided for by the statute, shall prevent the operation of the will with respect to such estate or interest in such real or personal property as the testator shall have power to dispose of by will at the time of his death. Thus where a testator devises certain lands, subsequently conveys them to a third party, but later re-acquires the ownership thereof which continues until his death, the authorities are conflicting as to whether or not such devise was revoked by the conveyance. There is authority that it is sufficient if the realty devised be in the testator's possession at his demise, 85 also authority to the contrary.88 8746. The Same Subject: Effect of Agreement to Sell, In equity, if the owner of lands has entered into a valid contract for their sale, as to such owner they are considered as personalty, and as to the vendee they are deemed to be realty.87 Where real property devised is thereafter, by the testator, contracted to be sold, it is held a revocation of the devise.88 The contract, however, must be executory and binding at the time of the testator's death. If unenforceable, it will not effect a revocation. But in many jurisdictions, by statute, the fact that the testator enters into a contract to sell lands 85 Woolery v. Woolery, 48 Ind. 523; Brown v. Brown, 16 Barb. (N. Y.) 569. 86 Walton v. Walton, 7 Johns. Ch. (N. Y.) 258. 87 See § 244. 88 Watts v. Watts, L. R. 17 Eq. 217; Walton v. Walton, 7 Johns. Ch. (N. Y.) 258; Donohoo v. Lea, 1 Swan (31 Tenn.) 119, 55 Am. Dec. 725. See § 244, n. 72. 89 Crowe v. Menton, L. R. 28 Ir. 519. |