gous questions; and the conclusion to which we feel compelled to come is that, upon strict principle, the extension of this class of proof is reduced to very narrow limits, but that, in practice, it has hitherto taken a much wider range.

10. It seems entirely well settled, that the same presumption in favor of the ademption of a legacy by a subsequent portion, will apply where the person advancing the same stands in the place of a father, as if he were actually the father.25 This point is considerably discussed by Lord Chancellor Cottenham, in the case of Powys v. Mansfield,26 and the points declared, that the proper definition of a person in loco parentis to a child is, one who means to put himself in the situation of the lawful father of the child, with reference to the father's office and duty of making a provision for the child. A person may stand in this relation to the child, notwithstanding the child lives with and is maintained by the father.

11. The existence of this relation must of necessity be shown by parol evidence, and for this purpose it is competent to prove the acts and declarations of the person claimed to have assumed it, in relation to it.26

12. But where the person giving the portion as well as the legacy is not in law recognized as the father, the child being illegitimate, and nothing appearing to show that the testator intended to assume the position of father, as before stated, the courts have held that no presumption of satisfaction of the legacy arises. Sir William Grant, M. R. here gives a very satisfactory exposition of this portion of the subject. It seems clear, that to come within the rule, the donor must be either the father of the legatee, or have voluntarily assumed that relation, and the first gift must have been in the nature of a portion. But even where the testator stands in the relation of a stranger, or other relative besides the father, if the legacy was given for

25 Twining v. Powell, 2 Coll. 262.

3 My. & Cr. 359.

27 Wetherby v. Dixon, 19 Vesey, 407.

a particular purpose, and the testator advances money for the same purpose; 28 or where it appears, in any legal manner, that it was the intention of the testator to have the legacy adeemed, that construction will be adopted.

13. It would seem that no relation will of itself be sufficient to place one in loco parentis, unless the actual relation exists, or the person voluntarily assumes the relation. But it is obvious that much less testimony would be required to establish that assumed relation between grandparents and their grandchildren, especially where the father of the children had deceased or become incompetent to discharge that office; or in the case of uncle, and nephew or niece; or in the case of the putative father, who recognized the natural tie, than in the case of mere strangers; but none of these relations, in themselves, have been regarded as sufficient to sustain the presumption of ademption.29

14. The question of the ademption of portions by legacies was a good deal considered in a late case before the House of Lords,30 and it was there declared, that the presumption of law is against double portions; and that where a sum of money is given by the will of the parent to a particular child, and a like sum is afterwards secured by a settlement on the marriage of that child, there is a presumption in favor of the ademption of the legacy, but this presumption may be rebutted by evidence of intention to the contrary. The burden of proof of intention is on the person claiming the double portion. It is not necessary the legacy should be paid in order that it may be adeemed.

"Debeze v. Mann, 2 Br. C. C. 165; Monck v. Monck, 1 Ball & B. 298, 303. * Shudal v. Jekyll, 2 Atk. 516, 518; Powel v. Cleaver, 2 Br. C. C. 499, 517, 518; Roome v. Roome, 3 Atk. 181; Perry v. Whitehead, 6 Vesey, 544; Lyddon v. Ellison, 19 Beav. 565; Grave v. Lord Salisbury, 1 Br. C. C. 425. "Hopwood v. Hopwood, 7 Ho. Lds. Cas. 728. See also Montefiore v. Guedalla, 1 DeG., F. & J. 93, where the question of the ademption of a portion of the residuary bequest to a son, by a subsequent advance by way of settlement on the son's marriage, is considered.

15. Substitutionary legacies, that is, where legacies are subsequently given to come in the place of others given before, either in a former will, or where the substitutionary legacies are given in a codicil executed at a later date than the instrument by which the legacies were given in the first instance; in all cases, such substitutionary legacies, unless there is something in the terms used, or the circumstances attending the substitution to the contrary, will have all the incidents, conditions, and limitations, attaching to the original legacies.31

16. The American courts fully recognize the presumption against double portions.32 But the presumption is not applied where the portion and legacy are not ejusdem generis, or where the bequest is of an uncertain amount.32 Parol evidence is admissible upon the question of intention, in all cases where the act claimed as an ademption rests in oral proof.34 General legacies not charged upon land held adeemed by sale of all testator's personalty; and the notes for the purchase-money made payable to the several legatees, and deposited with the will, held to belong to such legatees.35

SECTION XIV.

THE PAYMENT AND ABATEMENT OF LEGACIES.

1. All valid legal claims against testator take precedence of legacies.

2. The executor may retain the assets, against legatees, in favor of contingent claims.

3. Creditors may pursue the assets into the hands of legatees.

4. No excuse for not paying debts, that the assets paid out without knowledge of the debt.

Duncan v. Duncan, 27 Beav. 386.

22 Clark v. Jetton, 5 Sneed, 229; Rogers v. French, 19 Ga. R. 316.

33 Shaw, Ch. J., in Paine v. Parsons, 14 Pick. 318, 320.

May v. May, 28 Alab. R. 141; Duckworth's Exrs. v. Butler, 31 id. 164.

35 Logan v. Deshay, Clarke, Ch. 209.

5. In the United States all debts required to be presented within a short time limited.

6. Where debts discovered after some legacies paid in full, they must contribute. 7. How far specific and demonstrative legacies abate. Specific legacies paid next after debts.

8. General legacies next; and finally the residuary bequests.

9. It has been attempted to allow the residuary legatee to come in as a general legatee in case of a devastavit. But this view seems not maintainable.

10, and n. 25. Those legacies given in satisfaction of a subsisting legal claim take

precedence.

11. Instances where apparent considerations not held sufficient.

12. The meritorious character of the legatee, or the conjecture of testator's intention, will not exempt legacies from abatement.

13. Instances where it has been, or has not been, held that general legacies were entitled to priority.

14. The rule in New York as to contributions to make up the share of a child born after the making of the will.

§ 56. 1. It seems to be well settled that all debts, even those of a mere voluntary character, if by bond or sealed instrument, so as to be valid without consideration, must be paid before any legacy can be paid.1 And although, as before stated, a specific legacy is payable in preference to general legacies, they must both yield to any valid legal claim existing against the testator at the time of his decease.

2. It seems, finally, after considerable discussion and fluctuation in the opinions of the courts, to be settled, that the executor may retain the assets, upon a contingent bond, or other claim against the estate, and is not obliged to part with them to legatees unless fully indemnified against such contingent claims.2 And while, it is said, that the executor is bound to pay over the assets to the legatee upon receiving indemnity against the contingent claim, it has also been held that if the executor does

3

I Lomas v. Wright, 2 My. & K. 769; 2 Wms. Exrs. 914.

Nector v. Gennet, Cro. Eliz. 466; Eeles v. Lambret, Aleyn, 38; Hawkins r. Day, Amb. 160; Simmonds v. Bolland, 3 Mer. 547; Vernon v. Egmont, 1 Bl. N. s. 554.

'Higgins v. Higgins, 4 Hagg. 242.

part with the assets without such indemnity, or impounding sufficient to meet such contingent claim, he must answer the same de bonis propriis, if it should become absolute.1

3. The old practice was for the executor to require of the legatees security against all debts, when he paid them the amount of their legacies. But that practice is now discontinued in England, and never existed in America. Hence, upon the basis of the existence of a trust in regard to the personal assets in the hands of the executor, in favor of creditors, they have been allowed to pursue them into the hands of legatees."

4. It has sometimes been made a question, how far the executor or administrator remained liable upon debts not made known to him within the first year of his office, and after he had paid over all assets in his hands to the legatees or distributees, bonâ fide believing that no further debts against the estate existed. But the more recent cases seem to establish the proposition that the payment of legacies is no excuse for the nonpayment of debts, even where they were not made known to the executor.8

5. But in the United States, generally, if not universally, the executor, by giving general public notice, in the form prescribed by statute, may compel the presentation of all claims against

Cochrane v. Robinson, 11 Sim. 378; Fletcher v. Stevenson, 3 Hare, 360, 370; ante, § 38, pl. 5.

Chamberlain v. Chamberlain, 1 Ch. Cas. 257.

• Lord Hardwicke, in Hawkins v. Day, Amb. 803; March v. Russell, 3 My. & Cr. 31, 42; post, § 57.

Chelsea Water Works v. Cowper, 1 Esp. N. P. C. 275.

Norman v. Baldry, 6 Sim. 621; Smith v. Day, 2 M. & W. 684; Knatchbull v. Fearnhead, 3 My. & Cr. 122; Hill v. Gomme, 1 Beav. 540; Davis v. Blackwell, 9 Bing. 5. In this last case Tindal, Ch. J., said, that a great lapse of time before the debt was called for might exonerate the executor, where he had paid all the assets to legatees. And in Richards v. Browne, 3 Bing. N. C. 493, the same learned judge said: "If the executor was induced to part with the assets by reason of any neglect, or of any act or declaration of the creditor, such creditor could not compel him to make good the deficiency thus created."