where a testator bequeaths specific property by will, and afterward parts with the title and possession thereof and does not regain the same, and there is no provision in his will for the contingency, the legacy is adeemed. Such result can not be obviated by extrinsic evidence tending to show that the testator did not so intend.28

Ademption, strictly speaking, results as a conclusion of law and does not depend upon the intention of the testator. When it has been determined that a specific, and not a general, legacy has been given, ademption is entirely a rule of law, and if the specific property bequeathed has been extinguished, the legacy is adeemed.29

The general rule may be affected by legislative enactment. Where the statute declares that the conversion of property by a testator shall not result in ademption, but that the legatee shall have the value thereof unless a contrary intent appear from the provisions of the will or from parol or other evidence, those claiming against the legatee must show that the conversion was made with an

the proceeds of them into the shape of manufactories or ships, would it be safe to admit evidence that, although he had not altered his will, he still intended that under the bequest of his cattle, the legatee should take his ships and manufactories? And yet such might be the result, if we relied on evidence of the testator's intention."

28 Lang v. Vaughan, 137 Ga. 671, Ann. Cas. 1913B, 52, 40 L. R. A. (N. S.) 542, 74 S. E. 270.

29 Stanley v. Potter, 2 Cox 180; Beck v. McGillis, 9 Barb. (N. Y.) 35; Ametrano v. Downs, 62 App. Div. (N. Y.) 405, 70 N. Y. Supp.

833; May v. Sherrard's Legatees, 115 Va. 617, Ann. Cas. 1915B, 1131, 79 S. E. 1026. See § 711.

Lord Thurlow, in Humphreys v. Humphreys, 2 Cox 184, says: "The only rule to be adhered to is to see whether the subject of the specific bequest remained in speIcie at the time of the testator's death, for, if it did not, then there must be an end to the bequest; and the idea of discussing what were the particular motives and intentions of the testator in each case in destroying the object of the bequest would be productive of endless uncertainty and confusion." Quoted with approval in

intention to adeem. In such a case it follows that parol and other extrinsic evidence may be introduced to establish such contention.30 Where, however, there arises a presumption of an intention to adeem, such presumption may be rebutted by evidence of a contrary intent.81

§ 716. Ademption by Act of the Testator: Delivery by Testator to Legatee.

A total ademption by reason of acts of the testator occurs in two cases only, as where in his lifetime the testator gives to the legatee the specific property theretofore bequeathed to him, or where, prior to his death, the testator so deals with the subject of the bequest as to render impossible a passing of the property as directed by his will.32 Thus a legacy may be adeemed where the testator, during his lifetime, delivers to the legatee property specifically bequeathed to him.33

Georgia Infirmary v. Jones, 37
Fed. 750.

30 Wickliffe's Exrs. v. Preston, 4 Metc. (Ky.) 178.

The Statute of 1 Victoria, ch. 26, § 23, reads: "That no conveyance or other act made or done subsequently to the execution of a will or relating to any real or personal estate therein comprised, except an act by which such will shall be revoked as aforesaid, shall prevent the operation of the will with respect to such estate or interest in such real or personal estate as the testator shall have power to dispose of by will at the time of his death." Section 24 of the same statute makes all wills speak as if executed at

the moment of the testator's death.

As to the date from which a will speaks, see §§ 235-239.

31 White v. Winchester, 6 Pick. (23 Mass.) 48; Wells v. Wells, 35 Miss. 638; Stout v. Hart, 7 N. J. L. 414.

32 Connecticut Trust & Safe Dep. Co. v. Chase, 75 Conn. 683, 55 Atl. 171.

33 Gilmer v. Gilmer, 42 Ala. 9; Clayton v. Akin, 38 Ga. 320, 95 Am. Dec. 393; Gardner v. McNeal, 117 Md. 27, Ann. Cas. 1914A, 119, 40 L. R. A. (N. S.) 553, 82 Atl. 988.

A bequest to a son of a specific amount to be paid by deducting it from the amount due from the son to the testator, as evidenced by

The general rule of the common law is that the change or destruction which constitutes ademption must occur during the life of the testator;34 and that if the value of the thing devised or bequeathed be diminished after his decease, the devisee or legatee will be entitled to be reimbursed from the estate. But the rule is different under the Civil Code of Louisiana, which provides that ademption may occur by the perishing of the subject of gift after the testator's death, if it be without the fault or act of the heir.35

§ 717. Ademption by Loss or Destruction of Property Specifically Bequeathed.

A specific legacy is adeemed when, in the lifetime of the testator, the particular thing bequeathed is lost, destroyed, disposed of, or is changed in substance or form so that it does not, at the time the will goes into effect, remain in specie to pass to the legatee. If a horse, for instance, be specifically bequeathed and then die during the testator's lifetime or be disposed of by him, the legacy will be lost or adeemed because there will be nothing on which the bequest can operate.36 If a specific leg

notes, is adeemed by the father's returning the notes to the son during his lifetime.-Davis v. Close, 104 Iowa 261, 73 N. W. 600.

In the Virginias and Kentucky, a provision or advancement to any person is deemed a satisfaction, in whole or in part, of a devise or bequest to the same person contained in a will made prior thereto, if it would be so deemed in case the beneficiary were a child of the testator, or if it appear from parol or other evidence to have been intended as a satis

faction.-Stimson's Am. Stat. Law,

§ 2812.

34 Durrant v. Friend, 5 De Gex & S. 343; Ashburner v. Macguire, 2 Bro. C. C. 108; Ford v. Ford, 23 N. H. (3 Fost.) 212; Walton v. Walton, 7 Johns. Ch. (N. Y.) 258, 262.

35 La. Civ. Code, (1875) §§ 1700, 1701.

36 Georgia Infirmary v. Jones, 37 Fed. 750; Ford v. Ford, 23 N. H. 212; Walton v. Walton, 7 Johns. Ch. (N. Y.) 258; Ametrano V. Downs, 62 App. Div. (N. Y.) 405,

acy does not exist at the death of the testator, it is adeemed, and this rule prevails without regard to the intention of the testator or the hardship of the particular case. The thing given is gone and no court is at liberty to substitute different property for that which the testator had himself given.37

Where the loss or destruction is partial only, the rule is partially applied. Thus, when the testator has made a specific bequest of certain stock, and at his death only a part thereof can be found, the ademption is pro tanto only.38

70 N. Y. Supp. 833; Starbuck v. Starbuck, 93 N. C. 183; Ga Nun v. Palmer, 159 App. Div. (N. Y.) 86, 144 N. Y. Supp. 457; In re Tillinghast, 23 R. I. 121, 49 Atl. 634.

In an English case, where all his interest in a certain estate was given by a testator, and prior to his death the estate was sold and the proceeds were mingled with other moneys on deposit at his banker's, it was considered to constitute an ademption of the bequest.-Manton v. Tabois, L. R. 30 Ch. Div. 92, distinguishing Moore v. Moore, 29 Beav. 496, declining to follow Clark v. Browne, 2 Smale & G. 524.

37 Sleech v. Thorington, 2 Ves. Sen. 561; Humphreys v. Humphreys, 2 Cox 184; Beck v. McGillis, 9 Barb. (N. Y.) 35; Hosea v. Skinner, 32 Misc. Rep. (N. Y.) 653, 67 N. Y. Supp. 527; Snowden v. Banks, 31 N. C. 373; Blackstone v. Blackstone, 3 Watts (Pa.) 335, 27 Am. Dec. 359.

Another circumstance which

will result in the ademption of a specific legacy is the partial or total destruction either of its substance or value, and in such a case the légatee can not look to the testator's estate to reimburse him for the loss. Thus it has been held that a legacy to be paid from the sale of slaves is adeemed by a proclamation of emancipation, and that the legatee can not look to the testator's land to make him whole.-Hill v. Toms, 87 N. C. 492.

38 Ashburner v. Macguire, 2 Bro. C. C. 108; White v. Winchester, 6 Pick. (23 Mass.) 48.

If the object is only destroyed in part, as if a house bequeathed has been destroyed by fire, the devise subsists for what remains, that is, for the land on which the house was situated. La. Civ. Code, (1875) § 1643.

In the case of an alternate legacy of two things, if one of them perishes, the legacy subsists as to that which remains. - La. Civ. Code, (1875) § 1702.

§ 718. Ademption by Alienation of Property Bequeathed.

The alienation by a testator of personal property theretofore specifically bequeathed is presumptive and even strong proof of an intention on his part that such legacy should adeem. The burden is on the legatee to show circumstances sufficient to rebut the presumption.39 But if it clearly appears that such was not the testator's intention-thus, in the case of a simulated transfer, so acknowledged by the alleged vendee, the property having been returned to the testator and being in esse at the time of his death—a specific legacy of the property will not adeem.40 However, when the specific bequest is not of the property itself, but of the proceeds of its sale, an ademption of the legacy will not result merely because the testator sells the property in his lifetime.11

42

The disposition of but a portion of personalty specifically bequeathed will cause an ademption proportionally only. Where a number of bank shares, 12 or several slaves, were specifically bequeathed, and a part thereafter sold, the ademption was pro tanto only.

43

Merely pledging or mortgaging goods specifically be

39 Worrill v. Gill, 46 Ga. 482; White v. Winchester, 6 Pick. (23 Mass.) 48.

40 Succession of Blakemore, 43 La. Ann. 845, 9 So. 496.

41 McNaughton v. McNaughton, 34 N. Y. 201; Nooe v. Vannoy, 6 Jones Eq. (59 N. C.) 185; Chambers v. Kerns, 6 Jones Eq. (59 N. C.) 280; Warren v. Wigfall, 3 Desaus. (S. C.) 47.

42 White v. Winchester, 6 Pick. (23 Mass.) 48; Blackstone V. Blackstone, 3 Watts (Pa.) 335, 27

Am. Dec. 359; Schriver v. Cobeau, 4 Watts (Pa.) 130.

43 Bailey v. Wagner, 2 Strob. Eq. (S. C.) 1.

Where a testatrix, about to marry, conveyed property, previously bequeathed, to trustees for her own use for life, then over to the same persons, who were legatees under her will, the legacies were held adeemed to the extent of the provisions made for the legatees in the settlement.Webb v. Jones, 36 N. J. Eq. 163, 168.