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of the creditor,35 and at most only operates as a temporary sus

pension of the remedy.

36

13. In looking carefully into the American cases upon this subject, it will appear that the courts here have received the rule of the English courts with considerable hesitancy. Thus, in a very early case, Putnam, J. said: "All the cases agree that the intention of the testator ought to prevail, and that prima facie at least, whatever is given in a will is to be intended as a bounty. But by later cases the courts have not been disposed to understand the testator as meaning to pay a debt, when he declares that he makes a gift; unless the circumstances of the case should lead to a different conclusion." This is all for which we contend; and we think the same view is largely countenanced by many other American cases.37

14. And in another case 38 it is said, that the presumption that a legacy is intended as payment of a debt is one peculiar to courts of equity, and is not therefore strictly a legal presumption; and that where the testator has estate sufficient to be generous as well as just, and the language of his will does not import that a legacy or bequest is a payment, the gift will be regarded as a donation; but that parol evidence is not admissible in such cases to show the intention of the testator.

15. From this favorable inclination of the American courts we think it fair to conclude that the rule of the English courts of equity will be here reversed, and a legacy will not be allowed

25 Wankford v. Wankford, 1 Salk. 299, 303, 306. The effect of the debtor making his creditor executor is sufficiently considered. Ante, § 38; 2 Wms. Exrs. 1186-1188.

37

Strong v. Williams, 12 Mass. R. 391, 393.

Chapman, J., in Smith v. Smith, 1 Allen, 129, 130; Clarke v. Bogardus, 12 Wend. 67; Mulheran v. Gillespie, id. 349; Fort v. Gooding, 9 Barb. 371; Smith v. Marshall, 1 Root, 159; Perry v. Maxwell, 2 Dev. Eq. 488; Dey v. Williams, 2 Dev. & Batt. Eq. 66.

38 Cloud v. Clinkinbeard, 8 B. Mon. 397, 399.

to operate as a satisfaction of a debt, except in that peculiar class of debts which are of an honorary character, or originally grew out of gratuities, or were in the nature of portions or advancement; or else where there is enough in the terms of the bequest, construed with reference to the relations of the parties, to indicate such an intention. Where there is a special charge of the debt upon the bequest there is no occasion to resort to construction or presumption.39

SECTION XI. .

SATISFACTION OF PORTIONS BY LEGACIES.

1. The subject of less importance here, but not wholly unimportant.

2. A legacy is presumably in satisfaction of a stipulated portion.

3. The question of satisfaction, being quite aside of the construction of the will, parol evidence is held admissible in regard to it.

4. Slight variations will not hinder the legacy operating as satisfaction, but if it be conditional, or contingent, it will not so operate.

5. A legacy may be regarded as an advancement towards the portion, made during the life of the testator, but not so a distributive share, in his estate.

n. 6. But a distributive share may be reckoned in part performance of a covenant to leave one a portion at his decease.

§ 53. 1. THE subject of this section is one of far less importance at the present time, and doubtless will so remain to a considerable extent, in this country, than in England. Here marriage settlements, and marriage, or other, portions are, and have always been, comparatively of infrequent occurrence. as they do constantly occur, and are likely to increase with the advance of time and the increase of wealth, it seems scarcely allowable that the subject should be entirely passed over here.

But

2. The general rule seems to be, that, where the testator was under obligation to provide a portion for the same person to whom he leaves a legacy of the same or greater amount, and sometimes where the legacy is of less amount than the stipu

* Smith v. Smith, 1 Allen, 129; Ward v. Coffield, 1 Dev. Eq. 108.

lated portion, the legacy shall be regarded as intended in satisfaction, either in whole or in part, of the portion. This will be illustrated by the following cases.1

3. And it seems to be considered, that, as the question of satisfaction is one of presumption, upon all the circumstances of the case, and quite independent of the construction of the will, or the particular legacy in question, parol proof may be received to confirm or oppose the presumption, the same as upon any other matter of fact.2

4. It is said that slight circumstances of variation will not hinder legacies from being considered a satisfaction of portions due the legatee from the testator.3 But where the portions are absolute and unconditional, it seems to have been considered that a legacy which was only payable upon certain conditions, and in certain contingencies, could not properly be treated as a satisfaction of the portion.1

5. Where portions had been secured for children, and it was provided that any advancement by the settlor, or parent, to such children during their lives, should be taken in satisfaction, in whole or in part, of such portions, unless the contrary should be specially declared by such parent, it has been often decided, that

1 Bruen v. Bruen, 2 Vern. 439; Blois v. Blois, 2 Ch. Rep. 347; Moulson v. Moulson, 1 Br. C. C. 82; Copley v. Copley, 1 P. Wms. 147; Ackworth v. Ackworth, 1 Br. C. C. 307, and note; Byde v. Byde, id. 308; Somerset v. Somerset, id. 309, and note; Warren v. Warren, id. 305; Finch v. Finch, 1 Ves. Jr. 534; Hinchcliffe v. Hinchcliffe, 3 Vesey, 516; Sparks v. Cator, id. 530; Pole v. Somers, 6 Vesey, 309; Bengough v. Walker, 15 Vesey, 507; Williams v. Bolton, 1 Dick. 405. The same construction obtains in America. Taylor v. Lanier, 3 Mur. 98.

Jeacock v. Falkener, 1 Br. C. C. 295; Haynes v. Mico, id. 129; Hinchcliffe v. Hinchcliffe, 3 Vesey, 516; Pole v. Somers, 6 Vesey, 309; Weall v. Rice, 2 Russ. & My. 251; Kirk v. Eddowes, 3 Hare, 509; Hall v. Hill, 1 Dr. & War. 94. See also Taylor v. Lanier, 3 Mur. 98.

32 Roper, 1093.

Bellasis v. Uthwatt, 1 Atk. 426; Saville v. Saville, 2 Atk. 458; Hanbury v. Hanbury, 2 Br. C. C. 352, 375.

a legacy by the last will of such parent should be reckoned towards such portion. But in Twisden v. Twisden, it was decided by Lord Eldon, that a distributive share in the parent's estate could not be reckoned by way of advancement towards the portion, during the life of the parent.

SECTION XII.

THE ADEMPTION OF SPECIFIC LEGACIES.

1. This occurs whenever the thing ceases to be the property of testator, before his decease.

2. The destruction of the fund, out of which demonstrative legacies payable, not ademption.

3. Where chose in action specifically bequeathed, but subsequently paid, legacy

adeemed.

4. Partial payment, ademption pro tanto. Intention of testator of no account.

5. Bequest of money arising from chose in action, not adeemed by payment of

same.

6. Stock, specifically bequeathed, is adeemed, by any voluntary change of title.

7. But not where it is effected, by operation of law, or is only in regard to the name of the trustees.

8. Mere intention or direction to change fund will not adeem legacy. Nor will an unauthorized change.

9. The bequest of share in profits of a partnership not adeemed by renewal of articles.

' Rickman v. Morgan, 1 Br. C. C. 63; s. c. 2 id. 394; Leake v. Leake, 10 Vesey, 477; Onslow v. Michell, 18 Vesey, 490; Goolding v. Haverfield, M'Cl. Exch. Rep. 345; Papillon v. Papillon, 11 Sim. 642.

6

9 Vesey, 413. There are many cases where a benefit derived by way of distributive share in one's estate has been held to be a good performance of a covenant to leave the party a given sum at his death. Blandy v. Widmore, 1 P. Wms. 323; Garthshore v. Chalie, 10 Vesey, 1; Goldsmid v. Goldsmid, 1 Swanst. 211. See also Colleton v. Garth. 6 Sim. 19; Jesson v. Jesson, 2 Vern. 255; Thomas v. Kemeys, id. 348. A legacy payable one year after the marriage of the legatee is not to be regarded as a marriage portion, but is a vested legacy, and any payment by the executor to the legatee, although not at the time specified, will be reckoned towards the legacy, whenever it becomes payable. Boone v. Sinkler, 1 Bay, 369.

10. Pledging or mortgaging goods specifically bequeathed, will not adeem legacy. 11. Bequests of furniture in a particular house or place are adeemed by testator's removal of them, but not if done without his concurrence. Some exceptions to this rule stated.

12. Locality in a bequest may be referred to as a limitation, or as a mode of definition.

13. Bequest of terms for years may refer exclusively to date of will, or may embrace all testator dies possessed of.

14. Bequest of equitable interest not adeemed by change of trustee.

15. Bequest of residuum not affected by change of title.

16. Mere partition of estate no such change of title as to adeem bequest.

17. Republication will not revive legacies adeemed, but will pass all estates possessed

at date of republication.

18. Ademption of specific legacy will not revive general legacy, for which the specific legacy had been substituted.

19. Subject further considered under head of specific legacies.

20. The question of adeeming legacies by calling in fund, discussed by American

courts.

21. Slight changes in fund no ademption. Testator's intention to be considered.

§ 54. 1. LEGACIES, which are specific, are said to be adeemed, when the particular thing given is either wholly lost, destroyed, or disposed of, by the testator during his life; or its form so changed as not to remain, in specie. Thus if the thing given as a specific legacy be sold by the testator, or otherwise disposed of during his lifetime, or its form be changed, as by manufacturing wool or other material into cloth, or gold or silver into a cup or other utensil, it is lost or destroyed. So that if the subject-matter of the legacy either ceases to be the property of the testator, or is so changed during his life, as no longer to be susceptible of identification, the legacy is said to be adeemed, or gone.1

1 Ashburner v. M'Guire, 2 Br. C. C. 108. So if the goods have been destroyed by accident during the life of the testator, or perished at sea in the same ship with the testator, the legacy of them is gone, since they must be shown to have existed after the death of the testator, in specie. Durrant v. Friend, 5 DeG. & Sm. 343; Ford v. Ford, 3 Foster, N. H. R. 212; Walton v. Walton, 7 Johns. Ch. 258, 262. And it will make no difference that the thing bequeathed proves not to have been the property of the testator, it cannot be

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