Some of the earlier decisions made a distinction between the effect of a voluntary payment and a compulsory payment of a debt, which was the subject of a specific legacy, in adeeming the legacy. They held that, where the debtor came forward of his own volition, and without solicitation, and paid the debt in the testator's life-time, the testator's acceptance of the money, under such circumstances, did not indicate an intention to take back the legacy; but if he, of his own will, and in the absence of any other apparent reason than that he wanted the debt paid, constrained the debtor to pay, then his act was regarded as evincing an intention to adeem the legacy. This distinction was recognized by the supreme court in Stout v. Hart, 7 N. J. Law, 414, 424. It was there said: "A voluntary payment is not an ademption, because accepting the money when tendered does not imply any alteration in the intentions of the testator; but when the testator compels payment this fact may or may not amount to an ademption, according to circumstances. The cases adopting this distinction as the rule of judgment will be found collected in 2 White & T. Lead. Cas. Eq. (4th Amer. Ed.) 624. The distinction, however, no longer prevails. The modern decisons, both of this country and England, with almost perfect unanimity, repudiate it as unsound and fallacious. The rule now generally recognized as an accurate statement of the law on this subject is that laid down by Lord Thurlow in Humphreys v. Humphreys, 2 Cox, Ch. 185. He said: "The only rule to be adhered to is to see whether the subject of the specific bequest remained in specie at the time of the testator's death, for, if it did not, then there must be an end of the bequest; and the idea of discussing what were the particular motives and intentions of the testator in destroying the subject of the bequest would be productive of endless uncertainty and confusion." Chief Justice Black states the same rule, as follows: "If a thing bequeathed in a will, by such description as to distinguish it from all other things, be disposed of, so that it does not remain at the testator's death, or if it be so changed that it cannot be called the same thing, the bequest is gone. If such a legacy be of a debt, payment necessarily makes an end of it. The legatee is entitled to the very thing bequeathed, if it be possible for the executor to give it to him, but, if not, he cannot have money in the place of it. This results from an inflexible rule of law applied to the mere fact that the thing bequeathed does not exist, and it is not founded on any presumed intention of the testator." Hoke v. Herman, 21 Pa. St. 301, 305. The cases repudiating the distinction alluded to are too numerous to be cited. They will be found referred to in 2 Williams, Ex'rs (6th Amer. Ed.) 1323; 2 White & T. Lead. Cas. Eq. (4th Amer. Ed.) 623, 668; Theob. Wills, 121; Redf. Wills, 423. The question now is one of identity, and not of intention, as gathered from matters extrinsic the will. In such cases the test is, did the subject of the gift exist in specie at the testator's death? If it did, the legatee is entitled to it against all persons except creditors; if it did not, he is not. Trying the complainant's right to relief by this principle, it is clear that judgment must be awarded against her. The demurrer must be sustained, with costs. PART II. CHAPTER I. THE LAW OF DESCENT AND DISTRIBUTION.* CHAPTER II. ADMINISTRATION. When Administration Void.† SCOTT v. MCNEAL ET AL. 154 U. S. 34. 1894. In error to the supreme court of the state of Washington. This was an action of ejectment, brought January 14, 1892, in the superior court of Thurston county in the state of Washington, by Moses H. Scott against John McNeal and Augustine McNeal to recover possession of a tract of land in that county. At the trial, it was conceded that the title in this land was in the plaintiff until 1888; and he testified that he entered into possession thereof, and made improvements thereon, and had never parted with the possession, nor authorized any one to go upon the land; that he had demanded possession of the defendants, and they had withheld it from him; and that its rental value was $100 a year. The defendants denied the plaintiff's title, and claimed title in themselves under a deed from an administrator of the plain *See Secs. 1028-1033, Vol. 7, Cyclopedia of Law, and cases there cited. + See Sec. 1034 Vol. 7, Cyclopedia of Law. tiff's estate, appointed in April, 1888; and in their answer alleged that in March, 1881, the plaintiff mysteriously disappeared from his place of abode, and without the knowledge of those with whom he had been accustomed to associate, and remained continuously away until July, 1891, and was generally believed by his former associates to be dead; and specifically alleged, and at the trial offered evidence tending to prove, the following facts: On April 2, 1888, Mary Scott presented to the probate court of the county of Thurston, in the territory of Washington, a petition for the appointment of R. H. Milroy as administrator of the estate of the plaintiff, alleging "that one Moses H. Scott, heretofore a resident of the above-named county and territory, mysteriously disappeared some time during the month of March, 1881, and more than seven years ago; that careful inquiry made by relatives and friends of said Moses H. Scott, at different times since his said disappearance, has failed to give any trace or information of his whereabouts, or any evidence that he is still living; that your petitioner verily believes that said Moses H. Scott is dead, and has been dead from the time of his said disappearance"; that he was never married, and left no last will or testament yet heard of; that he left real estate in his own right in this county of the value of $600, more or less; that his heirs were three minor children of a deceased brother; and that the petitioner was a judgment creditor of Scott. Notice of that petition was given by posting in three public places, as required by law, a notice, dated April 7, 1888, signed by the probate judge, and in these words: "In the Probate Court of Thurston County, W. T. Mary Scott having filed in this court a petition praying for the appointment of R. H. Milroy as administrator of the estate of Moses H. Scott, notice is hereby given that the hearing and consideration of said petition has been fixed for Friday, April 20, 1888, at 10 o'clock a. m., at the office of the undersigned.' At the time thus appointed, the probate court, after appointing a guardian ad litem for said minors, and hearing witnesses, made an order by which, "it duly appearing that said Moses H. Scott disappeared over seven years ago, and that since said time nothing has been heard or known of him by his relatives and acquaintances, and that said relatives and acquaintances believe him to be dead; and that his surroundings, when last seen (about eight years ago), and the circumstances of that time and immediately and shortly afterwards, were such as to give his relatives and acquaintances the belief that he was murdered at about that time; and it appearing that he has estate in this county: Now, therefore, the court find that the said Moses H. Scott is dead to all legal intents and purposes, having died on or about March 25, 1888; and no objections having been filed or made to the said petition of Mary Scott, and the guardian ad litem of the minor heirs herein consenting, it is ordered that said R. H. Milroy be appointed administrator of said estate, and that letters of guardianship issue to him upon his filing a good and sufficient bond in the sum of one thousand dollars." Letters of administration were issued to Milroy, and he gave bond accordingly. On July 16, 1888, the probate court, on the petition of Milroy as administrator, and after the usual notice, and with the consent of the guardian ad litem of said minors, made an order, authorizing Milroy as administrator to sell all Scott's real estate. Pursuant to this order, he sold by public auction the land now in question, for the price of $301.50, to Samuel C. Ward. On November 26, 1888, the probate court confirmed the sale, the land was conveyed to Ward, and the purchase money was received by Milroy, and was afterwards applied by him to the payment of a debt of Scott, secured by mortgage of the land. On November 26, 1889, Ward conveyed this land by warranty deed to the defendants, for a consideration paid of $800; and the defendants forthwith took and since retained possession of the land, and made valuable improvements thereon. At the time of the offer of this evidence, the plaintiff objected to the admission of the proceedings in the probate court, upon the ground that they were absolutely void, because no administration on the estate of a live man could be valid, and the probate court had no jurisdiction to make the orders in question; and objected to the rest of the evidence as irrelevant and immaterial. But the court ruled that, the probate court having passed upon the sufficiency of the petition to give it juris |