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.
THE CUMULATION OF LEGACIES.
Cumulation, like ademption, very often depends upon the intention of the testator, for it may be his desire to increase a legacy, or he may, through inadvertence, state it twice over. For instance, where a specific thing, as an estate, a horse, or a house, is stated twice over, there is clearly no cumulation. When a like quantity is bequeathed to the same legatee twice in the same instrument—as the will, or stated in the will, and repeated in the codicil, unless the word, “another,” or something equivalent to it, be annexed. So, also, a subsequent statement of a certain sum, as an unconditional legacy, when it had been previously stated as a conditional one, is no cumulation. When, however, two unequal quantities are stated for the same legatee, though they be in the same instrument, they are two legacies, and not one. Such is the case, also, when two equal sums are given by different instruments; and when both legacies are expressed as being given for the same cause, they are not cumulative; it is too apparently an inadvertence. But when two different reasons are assigned they are two legacies; or when the legacies are of different natures, though of the same amount, as one a sum of money, and the other an annuity, or two annuities of similar amount, but differently paid, as one half-yearly, and the other quarterly, or similarly paid, but out of different estates, as one out of real, and the other out of personal, estate.
Extrinsic circumstances will also cumulate legacies, though stated of the same amount; as, when after the date of the will, but before the date of the codicil, the testator has received an increase of fortune, for it is then evident that he intended to dispose of the accession. Indeed other, very slight, circumstances are often admitted as evidences of cumulation.
LEGACIES IN SATISFACTION OF DEBT.
Sometimes it happens that legacies, instead of being purely such, are mere satisfactions of debt; and on this point, as on the two preceding, the intention of the testator is the guide of judgment. In general, the legacy of a debtor to his creditor, when the bequest is equal in amount to the debt, or greater, is considered as a payment of the obligation. But many circumstances may occur to obviate this construction, as if the legacy be left conditionally; for a man has no right to take an uncertain advantage as a recompense for a certain claim. Nor when the advantage is postponed whilst the claim is present; as when the legacy is to be paid at a future period, while the debt is due immediately on the death of the testator, though the postponement be for ever so short a period. Nor unless the legacy be in every way equal in advantage to the debt. Nor when an express injunction is laid on the executor for the payment of debts. Nor if the debt be contracted after the date of the will, for then the satisfaction of it by the legacy could not have been contemplated. Nor when the amount of the debt is open and uncertain, as when there has been a running account between the testator and legatee, which is unclosed at the death of the former, for then he could not positively know of the debt.
In this instance, however, as in others, the law is favourable in its construction of kindly intentions, and parol evidence is accordingly admissible to refute the construction unfavourable to the legatee’s interests. But, just as well as considerate, it decrees that a legacy shall be considered as satisfaction of a debt in all cases where there is a deficiency of assets.
On the contrary part, in order to secure the interests of both parties, it is held that a legacy left to a debtor is to be considered as a complete or partial satisfaction of his claim, for he is conceived to have goods in hand for the payment of so much of the amount of his debt. Through the influence of the same principle, money or goods delivered or lent to a legatee, are considered as a pro tanto payment of his claim. Should the debt itself be bequeathed, it is a pure legacy, if there are sufficient assets to satisfy all the other debts; but if not, then this debt is considered as part of the assets, and the legatee would share the benefit in proportion.