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2. It may be well to repeat here, what may have been before intimated, that demonstrative legacies, i. e. of money payable out of a particular fund, conform more to the incidents and analogies of general, than to those of specific legacies. Hence the disposal or destruction of the particular fund out of which a demonstrative legacy is payable, will not adeem or extinguish the legacy.2

3. In going more into detail upon this subject, we find the cases more conveniently range themselves, according to the subject-matter of the legacies. Where a chose in action is specifically bequeathed, and subsequently paid to the testator in money, and that money commingled with his other moneys, no question remains that the entire legacy is adeemed. But where, as in some cases, the testator, after having received the money, invests it in some other form, and leaves the bequest standing, as before, there arises a very strong presumption that he intended the new form of the investment to stand in the place of the former one; but notwithstanding this strong presumption of intention on the part of the testator, the courts have strenuously maintained the indispensable necessity of the very thing remaining, in specie, a part of the estate at the decease of the testator, in order to give effect to a specific legacy, and that this question cannot be materially affected by any considerations of intention on the part of the testator.1

4. So a partial receipt of the sum due upon a debt specifically bequeathed, will operate as an ademption pro tanto.5 And

made up to the legatee on that account out of other portions of the estate. M'Kinnon v. Thompson, 3 Johns. Ch. 307.

seq.

* 2 Wms. Exrs. 1189, 1190. This point is discussed, ante, § 49, pl. 11, et

330.

Badrick v. Stevens, 3 Br. C. C. 431; Rider v. Wager, 2 P. Wms. 329,

Barker v. Rayner, 5 Madd. 208; s. c. before Lord Eldon, Chancellor, on Appeal, 2 Russ. 122; Gardner v. Hatton, 6 Sim. 93.

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it will make no difference in this respect, whether the creditor call in the debt, or it is voluntarily tendered him by the debtor, thus effecting, in some sense, a compulsory payment, notwithstanding some of the early cases attempted a distinction of this kind. The question of intention in determining the existence of a specific legacy at the time of the decease of the testator, is not to be taken into the account, since that would lead to endless uncertainties. It is a question of identity merely, to be determined by applying the words in the will to the estate of the testator.8

5. But a distinction is to be observed between the bequest of a thing in action, as a particular security for money, and a bequest of the money which may arise or be received upon such a claim; since in the latter case it is not inconsistent with the bequest, that the testator should receive the money in his lifetime, and reinvest it in another form.9

Sir R. P. Arden, M. R., in Innes v. Johnson, 4 Vesey, 568, 574; Ashbur ner v. M'Guire, 2 Br. C. C. 108, 110; Fryer v. Morris, 9 Vesey, 360; Barker v. Rayner, 5 Madd. 208; s. c. 2 Russ. 122.

Orme v. Smith, 1 Eq. Cas. Ab. 302, pl. 2; s. c. 2 Vern. 681; Crockat v. Crockat, 2 P. Wms. 164; Ellis v. Walker, Amb. 311, and many other cases cited; 2 Wms. Exrs. 1192, n. (p.)

8 Humphreys v. Humphreys, 2 Cox, 184. Thus where the testator had bequeathed specifically a bond and mortgage, and subsequently foreclosed the mortgage and sold again to the same party, taking back a new bond and mortgage, leaving a memorandum to the effect that the new mortgage was but a renewal of the one bequeathed, and that he intended it to pass to the legatee; it was held, that the legacy was, nevertheless, adeemed. Beck v. McGillis, 9 Barb. 35. But the mere change of the form of a security for the fund bequeathed specifically will not adeem the legacy. Gardner v. Printup, 2 Barb. 83. It is said by the learned Surrogate, in Doughty v. Stillwell, 1 Bradf. Sur. Rep. 300, that whether a specific legacy be adeemed by a change of the particular form in which the thing given exists, depends upon the terms of the gift, the intention of the testator, the extent or nature of the alteration, and the circumstances attending it. But the best-considered cases, as before intimated, treat it as a question of identity and not of intention.

9 Clark v. Browne, 2 Sm. & Gif. 524.

6. The same rules apply to specific bequests of other things. Thus where stock is specifically bequeathed, and before the death of the testator ceases to exist as part of his estate, either wholly or in part, to that extent the legacy is adeemed.10 And it is even held, that the conveyance of the stock, and purchasing an equal amount of the same kind of stock, will nevertheless operate to adeem the legacy, upon the same, or an analogous rule of construction to that which regards any alteration in the title of real estate, as a revocation of the devise, to that extent, under the former English statute.12

11

7. But no ademption will take place where the change in the thing bequeathed is effected by operation of law, as where a fund is converted into one of a different description, by act of parliament.13 Nor will it operate to adeem the legacy, where the fund has been transferred into another fund by the trustee,

10 Ashburner v. M'Guire, 2 Br. C. C. 108; Sleech v. Thorrington, 2 Ves. Sen. 560; Drinkwater v. Falconer, 2 Ves. Sen. 623.

"Pattison v Pattison, 1 My. & K. 12. Sir John Leach, M. R., here said, "The law is settled that a legacy is adeemed if the specific thing do not exist at the testator's death." But where the testator bequeathed to his wife his stock in an insurance company, which lost its stock in the course of its business after the making of the will, and, on its stock being again filled, the testator paid up in full a portion of his shares and retained them till his death; and it was held, that as to that portion the legacy was not adeemed. Havens v. Havens, 1 Sandf. Ch. 324. And in a recent English case, Jones v. Southall, 9 Jur. N. s. 93; s. c. 32 Beav. 31, where the testatrix, in contemplation of a marriage, which took place in form, but was void, made an assignment of certain stocks and securities to trustees by way of settlement upon herself and husband, and subsequently by will directed the trustees, after the death of her husband, to hold the entire fund, in certain proportions, for such of several persons named as should be living at the decease of the husband. The husband died before the testatrix, and she then destroyed the settlement and assignment of securities to the trustees, and received back the securities; it was held, this did not amount to an ademption of the legacies, except as to that portion of the funds which the testatrix had disposed of and received the moneys.

19 Ante, pt. 1, § 26.

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without the concurrence of the testator,14 or from the name of the trustee into the testator's own name; 15 or when the names of the trustees only have been changed.

8. And it seems to be settled, that the mere intention, and direction by the testator, to have the form of the thing changed, but which was never carried into effect; and the fact that an unauthorized change in the thing was made by the plaintiff's agent, before his death, but of which he never had knowledge, will not be sufficient to adeem the legacy.16

9. It was held, that where the testator bequeathed a specific portion of his profits in a certain partnership, and subsequently renewed the articles with the same partners, giving them a greater interest than they had before, that this did not operate to adeem or revoke the legacy, but the legatee took the proportion of profits specified, as they existed at the decease of the testator.17

10. As to the ademption of legacies in goods, it seems that merely pledging or mortgaging them will not have this effect, since the right of redemption still remains in the testator, and that will pass under the bequest, so as to enable the legatee to call upon the executor to redeem the thing and deliver it to him.18

11. Where goods are bequeathed, with reference to a particular locality, as all the testator has, or all of a particular description, in a particular house or place, and they are afterwards removed to another place, this will have the effect to adeem the legacy.19 And it will make no difference that the goods are

14 Shaftsbury v. Shaftsbury, 2 Vern. 747.

15 Dingwell v. Askew, 1 Cox, 427.

18 Basan v. Brandon, 8 Sim. 171; Patton v. Patton, 2 Jones, Eq. 494.

17 Blackwell v. Child, Amb. 260.

18 Ashburner v. M'Guire, 2 Br. C. C. 108, 113, by Lord Thurlow, Chancellor.

19 Green v. Symonds, 1 Br. C. C. 129, in n.; Heseltine v. Heseltine, 3 Madd. 276; Colleton v. Garth, 6 Sim. 19.

removed because the lease of the testator's house had expired.20 But if they are removed on account of fire,21 or without the testator's knowledge, or by fraud, it will not have that effect.22 And where the place is referred to merely to identify the goods, at the time, as all testator's goods in a certain ship,21 or where the bequest is of all the testator's furniture in a particular house, where he was living at the time of making the will, but had another house, living alternately in either, and having but one set of furniture, which he carried from one house to the other, it will make no difference in which house the furniture happens to be at the testator's decease, the legacy, being evidently of all testator's furniture, is not adeemed by the change from one house to the other.23

12. A distinction is taken in regard to the bequest of goods or other things being in a particular place, whether the place is referred to merely to identify the goods, or as the extent and measure of the legacy. Hence where the terms were, all the plate, pictures, household goods and furniture, that should be in testator's house at Ryegate, at the time of his decease, there could be no question that the voluntary removal of them from that house, by the testator or by his consent, during his life, must operate to adeem the legacy.24 But where the testator bequeathed all his bills, bonds, &c., belonging to him, and lying in the lodging occupied by him, in the house of Mr. Smith, it was held, the words were only descriptive of the things intended to be conveyed, and therefore it was immaterial where they remained, at the time of the testator's death.25

* Colleton v. Garth, 6 Sim. 19.

Chapman v. Hart, 1 Ves. Sen. 271.

Shaftsbury v. Shaftsbury, 2 Vern. 747. "Land v. Devaynes, 4 Br. C. C. 537. "Shaftsbury v. Shaftsbury, 2 Vern. 747.

Cunningham v. Ross, 2 Cas. temp. Lee, 272; Norris v. Norris, 2 Coll. 719. In this last case it was held, that the words, "all my interest in my house at L. the furniture, books, pictures, wines, &c., was not limited to those in existence at

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