which was not in fact paid by him according to the provisions of 45 Geo. 3, c. 28, until after the legatee had assigned all his interest in such annuity; it was held, that the legatee was liable to repay him the duty, it not being a voluntary payment; and the executor was only made liable by the act for the benefit of government, and not on his own account; he was therefore no more than surety for the legatee, and the case fell within the principles applicable to sureties. (x)

SECT. IV.

Of the ademption of a legacy.

I PROCEED now to inquire into the nature of an ademption of a legacy.

An ademption of a legacy is the taking away, or revocation of it by the testator. It may be either express or implied. The testator may not only in terms revoke a legacy he had before given, but such intention may be also indicated by particular acts: (a) As where a father makes a provision for a child by his will, and afterwards gives to such child, if a daughter, a portion in marriage: or if a son, a sum of money to establish him in life, provided such portion, or sum of money be equal to or greater than the legacy, this is an implied ademption of it, for the law will not intend that the father designed two portions for the same child. (b) [330] But this implication will not arise if the provision in

the will is created by a bequest of the residue; (c) nor if the provision in the father's lifetime be subject to a contingency; (d) nor unless it be ejusdem generis with the legacy: (e) nor if it be expressly in satisfaction of a claim aliunde; nor if the portion be given absolutely, and the legacy under limitations (f) nor if the testator were a stranger; (g) nor if the testator be the uncle of the legatee; (h) nor if the legatee be an illegitimate child, unless the testator placed himself clearly in loco parentis; (i) and the doctrine of ademption of legacies is fully considered as confined to the cases of parents, and persons placing themselves in loco parentis; and such implication is always liable to be repelled by evidence. (k) But if the testator, by a codicil subsequent to the portioning or advancement of the child, ratify and confirm his will, this, although a new publication, shall not avail to overturn the presumption, that he meant to adeem the legacy; for such words are merely formal. (1) A gift by a parent in his lifetime to legatees, after a will giving them legacies, has been held to be part satisfaction of the legacies, upon evidence of the intention of the testator to that effect.

In respect to the ademption of a legacy, all the cases on the subject concur in the principle, that the intention of the testator must govern; but, in the application of that principle, or what shall amount to evidence of such an intention, they are, in many instances, incapable of being reconciled.

Thus, in some cases it has been held, that where a sum

(c) Farnham v. Phillips, 2 Atk.

216.

(d) Spinks v. Robins, 2 Atk. 491. (e) Grace v. Earl of Salisbury, 1 Bro. Ch. Rep. 425.

(f) Baugh v. Reed, 2 Bro. Ch. Rep. 192. Bell v. Coleman, 5 Madd. Rep. 22.

(g) Shudal v. Jekyll, 2 Atk. 516. Powell v. Cleaver, 2 Bro. Ch. Rep.

499.

(h) Brown v. Peck, 1 Eden's R. 140.

(i) Wetherby v. Dixon, Coop. Rep. 279. S. C. 19 Ves. 407, and see exparte Dubost, 18 Ves. 140.

(k) Shudal v. Jekyll, 2 Atk. 516. Debeze v. Mann, 2 Bro. Ch. Rep. 165, 519. S. C. 1 Cox's Rep. 346. Baker v. Allen, 2 Russ. & Myl. 270.

(1) Irod v. Hurst, 2 Freem. 224. Thellusson v. Woodford, 4 Madd. Rep. 421.

of money is bequeathed out of a particular fund, such le[331] gacy is in its nature general, a legatum in numeratis, and if the testator in his lifetime receive it, it must be made good to the legatee out of the general assets; for from that act of the testator no presumption can be raised of his intention to revoke his bounty. (m) In other cases it has been decided, that such a legacy under the same circumstances is adeemed. (n) Some authorities distinguish between the bequest of a sum of money to be satisfied out of a particular fund, and, consequently, a general legacy, and a bequest of a specific debt; that the former is not adeemed, while the latter is adeemed by payment to the testator. (o) But these lastmentioned cases differ in their construction of what shall be the bequest of a general legacy, as opposed to that of a specific debt. Some, as we have already seen, (p) adopt a distinction between the bequest of a certain sum of money due from a particular person, as "five hundred pounds due on a bond from A. ;" and a bequest of such debt generally, "of the bond from A.;" that, in the former instance, the legacy is pecuniary, in the latter is specific. (q) But, according to other cases, this distinction is too slender to be relied on. (r) A difference has also, in some instances, been taken between a compulsory, and a voluntary payment to the testator of such debt; in other words, where the tes[332] tator himself calls in a debt which he has bequeathed, and where the debtor unprovoked, and without application, thinks fit to pay it; that, in the former instance, it is the act of the testator, and, consequently, an ademption; in the latter he is merely passive, and, therefore, cannot be pre

as,

(m) 4 Bac. Abr. 355. Ashburner v. Macguire, 2 Bro. Ch. Rep. 108. Finch. 152. Pawlet's case, Raym. 335. Savile v. Blackett, 1 P. Wms. 777.

(n) Badrick v. Stephens, 3 Bro. Ch. Rep. 431. See also 2 Fonbl. 367, note (f)

(0) Hambling v. Lister, Ambl.

401.

(p) Vide supra, 303.

(9) Rider v. Wager, 2 P. Wms. 330, and note 1, ibid. AttorneyGeneral v. Parkin, Ambl. 566. Carteret v. Lord Carteret, cited 2 Bro. Ch. Rep. 114, and see Le Grice v Finch, 3 Meriv. Rep. 50.

(r) Ashburner v. Macguire, 2 Bro. Ch. Rep. 111. 1 Eq. Ca. Abr. 302.

sumed to have changed his mind. (s) But the doctrine of some cases is, that this distinction has no weight; (t) and of others, that it has no existence, (u) and that the case is not varied by the mode of payment. In another class of cases this distinction between a compulsory and a voluntary payment has been recognised as very important, but not as an absolute rule for decision; on the principle, that the testator's calling for payment is not of itself sufficient evidence of an intention to adeem, but an equivocal act requiring explanation. (v)

It is, however clear, that if the legacy be of a specific chattel, and the testator alter the form, so as to alter the specification of the subject; as if, after having given a gold chain by his will, he convert it into a cup; or, after he has bequeathed wool, he make it into cloth, or a piece of cloth into a garment; the most obvious conclusion that can be formed from such an act is, that he has changed the intention he had expressed in his will; therefore, in such instances, the legacy shall be adeemed. (w) So, if he bequeath his stock in a particular fund, and sell it out subsequently to the making of the will, this, on the same principle, amounts to an ademption. (x) And where a testator bequeathed two policies on a life upon certain trusts, and received the amount of the policies in his lifetime, it was held that the legacies were adeemed. (x) And so where a testator bequeathed 7,000l. secured on mortgage of an estate at W., belonging to R. T., and the mortgage was afterwards paid off, but 6,000l. part of the money was invested on another mortgage,

(s) Crockat v. Crockat, 2 P. Wms. 165, 330, note 1, ibid. Bronsdon v. Winter, Ambl. 57.

(t) Earl of Thomond v. Earl of Suffolk, 1 P. Wms. 461. Ashton v. Ashton, 3 P. Wms. 386. S. C. 2 P. Wms. 469. Ford v. Fluming 2 Str.

823.

(u) Attorney-General v. Parkin, Ambl. 566. Ashburner v. Macguire, 2 Bro. Ch. Rep. 109. 4 Bac.

Abr. 355, note (B.) Stanley v. Potter, 2 Cox's Rep. 180.

(v) Drinkwater v. Falconer,2 Ves. 623. Hambling v. Lister, Ambl. 401. Coleman v. Coleman, 2 Ves. jun. 639.

(w) 3 Bro. Ch. Rep. 110.

(x) 3 Bro. Ch. Rep. 108. Barker v. Rayner, 5 Madd. Rep. 208. S. C. upon Appeal, 2 Russ. 122. Pattison v. Pattison, 1 Myl. & Keen, 12.

it was held that the legacy was specific, and adeemed. (xx) But if A. bequeath so much stock to B., and, after making his will, sell it out and then buy in again the same quantity of stock, this is no ademption: for if the selling of the stock is evidence of his having altered his intention, his buying it in again is evidence, equally strong, that he meant the legatee should have it. (y) If the testator, after such bequest of stock, sell out part and die, such sale shall be an ademption pro tanto. (~) Thus, where A. bequeathed a moiety of two-thirds of the residue of the South Sea Stock, India, Bank, and Orphan Stock, Leases, East India and South Sea Bonds, and other his personal estate to B.; B. before he received this legacy made his will, and devised this moiety to trustees to sell and pay out of the same the sum of two hundred pounds to C. and the residue of the money to D. afterwards B. and the legatee of the other moiety coming to an account with the executor of A., their respective shares were set out and received, and the stock and bonds were allotted to B., who sold part of them in his lifetime, but kept no account of the produce: this was decreed to be an ademption of the legacy to D. pro tanto: but it was held that B.'s receipt of his share was clearly no ademption; inasmuch as the object both of B., and the other [334] was merely to ascertain their moieties, and to prevent survivorship. (a)

So it has been decided, that a bequest of a debt shall not be adeemed by the testator's having received dividends upon it under the bankruptcy of the debtor. (b) But that such legatee is entitled to the dividends not received by the testator, and whatsoever may in future be payable out of the bankrupt's estate, in respect of that debt.

Where a testator gave a sum of money to be paid out of the produce of a real estate which he directed to be sold,

(xx) Gardner v. Hatton, 6 Sim. 93.

(y) Partridge v. Partridge, Ca. temp. Talb. 226.

(2) Ca. temp. Talb. 226.

(a) Birch v. Baker, Mos. 373. (b) Ashburner v.Macguire, 2 Bro. Ch. Rep. 108.