§ 710. The Same Subject.

Satisfaction may be further distinguished from ademption, in this, it is a gift of property accompanied by the intention, express or implied, that such gift is to be taken as a substitute for or in satisfaction of some prior obligation. Mr. Pomeroy makes four divisions, (1) satisfaction of debts by legacies, (2) satisfaction of legacies by subsequent legacies, (3) satisfaction of portions by legacies, and (4) satisfaction of legacies by portions or advancements.10 It is only the second and fourth classes mentioned that could be confused with ademption, since ademption has reference to the extinction of a legacy, in whole or in part, not the satisfaction of a prior obligation. With ademption, the legacy must precede the obligation of the testator or the acts by which it is extinguished. As to the second class named, the satisfaction of legacies by subsequent legacies, the question is determined by the character of the second gift, whether cumulative or substitutional.11 As to the satisfaction of legacies by portions or advancements, the testator must stand in loco parentis to the beneficiary, the courts being unfavorable to double portions and consider the later gift as the satisfaction, pro tanto or in toto according to the amount, of the obligation owed by the testator and which he intended to pay, as evidenced by his will.12

§ 711. The Same Subject: The Class of Legacy to Which Each Is Applicable.

A general legacy may be satisfied, although not strictly speaking adeemed. It depends on the intention of the

10 2 Pomeroy Eq. Juris. (3rd ed.), § 521.

11 See §§ 682-686, cumulative and substitutional legacies.

12 Watson v. Lincoln, Ambl. 325; Pym v. Lockyer, 5 Myl. & C. 29, 35; Wallace v. Du Bois, 65 Md. 153, 4 Atl. 402.

testator as inferred from his acts.13 Ademption, strictly speaking, is applicable only to specific legacies, and operates independently of intention where the specific thing bequeathed is not owned by the testator at the time of his death. The doctrine of satisfaction rests wholly upon the intention of the testator and may be applied to the extinction of general or demonstrative legacies. Satisfaction is of equitable origin, while ademption depends upon a rule of law. 14

General residuary legacies may abate and become entirely exhausted, but the doctrine of ademption does not apply to bequests of such character.15 Demonstrative legacies become general upon the failure of the fund out of which they were to be satisfied; and being then payable out of the general assets of the estate, they are not subject to ademption.16

13 In re Brown's Estate, 139 Iowa 219, 117 N. W. 260.

14 Kramer v. Kramer, 201 Fed. 248, 119 C. C. A. 482. See, also, Kenaday v. Sinnott, 179 U. S. 606, 45 L. Ed. 339, 21 Sup. Ct. 233; In re Bradley's Will, 73 Vt. 253, 50 Atl. 1072.

Liability to ademption is said to be the most distinctive feature of a specific legacy.-May v. Sherrard's Legatees, 115 Va. 617, Ann. Cas. 1915B, 1131, 79 S. E. 1026.

As pointed out in Beck v. McGillis, 9 Barb. (N. Y.) 35, "Ademption is only predicable of a specific legacy. It takes place, as the term imports, when the thing which is the subject of the legacy is taken away, so that when the testator dies, though the will purports to bestow the legacy, the thing

...

takes place or not is a conclusion of law, and does not depend upon the intention of the testator. . . Satisfaction, on the other hand, is predicable, as well of a general as of a specific legacy. It takes place when the testator, in his lifetime, becomes his own executor, and gives to his legatee what he had intended to give by his will. Thus it may happen, in respect to a specific legacy, that it has been both adeemed and satisfied. . . . And this (satisfaction), unlike that of ademption, is purely a question of intention."

15 Stirling v. Lydiard, 3 Atk. 199; Digby v. Legard, Dick. 500.

163 Pomeroy Eq. Jur., 3rd ed., § 1131; 2 Williams' Exrs., 3d Am.

§ 712. Effect of Ademption.

Ademption may result in the partial or total loss of a legacy. It, however, affects no other provisions of the will. The testamentary document still remains in full force and effect as to its other provisions. If the ademption is total, the entire legacy is eliminated;17 if only pro tanto, the legacy is affected only to the extent of its reduction, the remaining portions being effective.18

§ 713. Adeemed or Satisfied Legacies Not Revived by Republication or Re-execution of Will.

The republication of a will merely brings it down to the time of republication, as if it had been executed as of that date. Re-execution of a will has no other effect than that of republication.19 Where personalty specifically bequeathed has been lost, destroyed, removed or disposed of so as to work an ademption thereof, or a legacy has been satisfied, neither the re-execution20 nor the re

Ed., *1132; Fowler v. Willoughby, 2 Sim. & St. 354, 57 Eng. Repr. 381; Kramer v. Kramer, 201 Fed. 248, 119 C. C. A. 482; 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; Enders v. Enders, 2 Barb. (N. Y.) 362; Spinney v. Eaton, 111 Me. 1, 46 L. R. A. (N. S.) 535, 87 Atl. 378; Balliet's Appeal, 14 Pa. St. 451; Tipton v. Tipton, 1 Cold. (41 Tenn.) 252.

17 Gregory v. Lansing, 115 Minn. 73, 131 N. W. 1010.

18 New Albany Trust Co. v. Powell, 29 Ind. App. 494, 64 N. E. 640.

19 See §§ 570, 571.

20 Tanton v. Keller, 167 Ill. 129, 47 N. E. 376; Estate of Youngerman, 136 Iowa 488, 15 Ann. Cas. 245, 114 N. W. 7; Paine v. Parsons, 14 Pick. (31 Mass.) 318; Richards v. Humphreys, 15 Pick. (32 Mass.) 133; Louisville Trust Co. v. Southern Baptist Theological Seminary, 148 Ky. 711, 147 S. W. 431; Langdon v. Astor's Exrs., 16 N. Y. 9, 57.

The Lord Chancellor, in Powys v. Mansfield, 3 Myl. & Cr. 359, at page 375, says: "It is very true that a codicil republishing a will makes the will speak as from its own date for the purpose of passing after-purchased lands, but not for the purpose of reviving a

publication21 of the testament will revive a legacy at such time adeemed or satisfied. Though the legacy remain in the will, yet it is of no more force or effect than any adeemed or satisfied legacy.22

§ 714. As to Evidence of the Testator's Intention.

As to whether the intention of the testator may be shown in determining whether or not a legacy is adeemed, depends upon the manner in which such intention is expressed and upon the particular circumstances of the case. In this connection the distinction between ademption and satisfaction must be borne in mind. Satisfaction of a legacy, as has been shown, depends largely upon the intention of the testator, while an ademption, strictly speaking, takes place irrespective of such intention.23 Border-line cases, such as whether or not a parent has satisfied or caused the ademption of a previous legacy to one of his children by advancements thereafter made, are governed largely by intent.24 Whether or not a general legacy in a will previously executed has been thereafter adeemed or satisfied by delivery of property to the legatee by the testator during his lifetime, may depend upon the express terms by which such transfer was made or upon circumstances from which the law presumes that the testator intended the gift as a substitute legacy revoked, adeemed, or satisfied. The codicil can only act upon the will as it existed at the time; and at the time the legacy revoked, adeemed, or satisfied formed no part of it."

21 Tanton v. Keller, 167 Ill. 129, 47 N. E. 376; Hayes v. Welling, 38 R. I. 553, 96 Atl. 843.

22 Howze v. Mallett, 4 Jones Eq. (57 N. C.) 194.

23 See § 711.

24 The fact that a father had made advancements to his son in his lifetime may be considered in arriving at the father's intentions in making his will, but for no other purpose. Estate of Low, Myrick's Prob. Rep. (Cal.) 143, 151.

for the legacy.25 But the question of determining the character of a legacy, whether it is specific, demonstrative or general, must not be confused with the question of ademption. The character of a legacy is determined by the intention of the testator subject to the general rule that specific legacies are not favored. Such intention is a question of fact to be determined by the jury.20

§ 715. The Same Subject.

At common law, and in the absence of statute, extrinsic evidence of the testator's intention, either by his declarations or by reason of the circumstances of the condition of his property, is not admissible on the question of ademption. The courts will not consider the matter of intention further than appears from the will itself.27 Thus

25 Clayton v. Akin, 38 Ga. 320, 95 Am. Dec. 393.

Question as to whether legacies left in a second will or codicil were advancements to legatees to whom testator had left legacies in a prior will is one of interpretation, in order to ascertain real intent of testator, and in arriving at this intent court will, if necessary, look at all parts of will and construe the will and codicil together. In re Estate Zeile, 74 Cal. 125, 136, 15 Pac. 455.

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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 directs that her estate shall have due credit therefor and that these amounts shall be respectively deducted from the shares to which such legatees

would otherwise be entitled, such clause must be construed to be her intent that shares left to the legatees should be diminished by reason of these loans, notwithstanding in a previous document, to which the will makes no reference, she had released legatees from payment of such loans.-In re Tompkins' Estate, 132 Cal. 173, 177, 64 Pac. 268.

As to cumulative and substitutional legacies, see §§ 682-689.

26 Walton v. Walton, 7 Johns. Ch. (N. Y.) 258. See § 646.

27 Ford v. Ford, 23 N. H. 212, wherein the court further says: "Where shall the line be drawn? If he possesses herds of cattle when he makes his will, and bequeaths them specifically, and then disposes of them, and in the course of his business transforms