The hand-book of the law of legacies / containing a statement of the nature of legacies, and the accidents to which they are subjects; together with the rights of legatees, and the causes and manner of the ademption, cumulation, and abatement of their bequests

by Anonymous

THE ADEMPTION OF LEGACIES.

This ademption may be either express or implied; for the testator may not only in express terms revoke a legacy which he had previously given, but his intention to do so may be indicated by particular acts. Thus, where a father gives to one of his children, a daughter, a legacy of a certain amount, and afterwards gives her that amount, or a larger one, as a marriage portion; or if a son, gives him the same amount or a larger one, to establish him in business, or to be of benefit to him for life in any other important way,—in both these cases, the legacies are considered to be adeemed or lost to the parties. But this ademption will not be implied, if the bequest is to come out of the residue, nor if the provision given by the father in his life-time is loaded with any contingency; as repayment, or the performance of any particular covenant, as a consideration for the provision for them; it is in a manner bought by the recipient, and it would be unjust to deprive him or her of a free gift, as a legacy is always construed to be by such a purchase. Neither is the legacy lost if the converse of this be the case; that is, if the legacy itself, and not the provision, be loaded with a limitation or contingency; for then it is evident that the legacy and the provision are not identical, which they must evidently be for the former to be lost. Nor is it adeemed if the testator be a stranger, or the uncle of the legatee, or if the latter be an illegitimate child, unless the father shall openly have assumed the office and performed the duties of a parent to it. The principle of identity appears to be the governing rule; for as the law does not allow the other legatees to be defrauded by a sum being paid to a party under a will, which had been previously paid by the act of the testator himself, so it must have clear evidence that the testator intended the gift to supersede the legacy, before it will suffer the legatee to be deprived of his right, simply because he appears to have enjoyed more favour at the hands of the testator than was at first supposed. Ademption, therefore, may always be resisted by evidence.

But a legacy is evidently adeemed when there is a decided impossibility of paying it; as when the whole of the testator’s assets have been swallowed up by his debts, which always precede legacies in their right. When the object itself is lost which is made the subject of a legacy, the latter is of course adeemed, as when a man leaves a particular estate as a specific legacy without stating its value, and he disposes of that estate before his death. Or if he leave the furniture of a particular house, and he leave that house, and sell the furniture before his death. But the removal of the whole of the furniture to another house would be only an implied ademption, and might be resisted by evidence of the testator’s intention to give that particular furniture, wherever it might be, to the legatee. The bequest of a debt to a debtor, of which debt the testator compels payment after making his will, would be an ademption of the legacy; but the voluntary payment of the debt before the death of the testator, would not, in all probability, deprive the legatee of the amount which he had paid; the ademption would then depend there, as it does, indeed, in all cases, upon the intention of the testator, where circumstances do not offer an insuperable bar to the fulfilment, such as we have stated above. The object, therefore, should be to get that intention ascertained.