accumulating fund in the event of a renewal not being necessary within the estimated period, and consequently obliged to contribute in aid of that fund if the time for renewal happen within the above period. But that if a renewal became necessary within a week, or a very short time after the death of the testator, so as that the fine cannot be paid out of the annual rents, it is presumed that necessity will authorize the fine to be raised by mortgage, the interest of which must be paid by the tenants for life. And,

Third. That, when not only the leasehold for lives, but other real estates, are devised to trustees as an aggregate fund to answer, out of the rents and profits, the fines for renewing the leaseholds, and the fund is limited in succession to several tenants for life, the whole of the rents must be applied in performance of the trust before any part of the aggregate fund can be mortgaged or sold for the purpose. But supposing the rents of the aggregate property in the hands of the trustees to be sufficient, and the leaseholds for lives are devised to one class of individuals, and the other estates to another class, it is conceived that the rents ought to be marshalled; i. e. the rents of the leaseholds and the rents of the other estates ought to contribute pro rata in satisfaction of the demand.

The equities of specific legatees in the marshalling of assets will appear in the Fifteenth Chapter.

CHAPTER V.

Of the Ademption and Abatement of Specific Legacies.

SECT. I. Of the ADEMPTION of Specific Legacies.

1. Of stock.

2.-Of debts or securities.

3.-Of goods, &c.

4.-Of partnership shares.

5.-Of leases for years and for lives.

SECT. II. ABATEMENT of Specific Legacies.

1.-Rule upon that subject.

2. As to abatement amongst several legatees of the same specific fund,-And

3.-Of abatement of specific devises of freehold estates with specific legatees of chattels, under which head are considered estates pour autre vie.

4. As to abatement of Legacies in part specific, and in part general.

SECT. I. Of the ADEMPTION of Specific Legacies. In order to complete the title of the specific legatee to the thing given, it must be in such condition at the testator's death as described in his will. Such is the general rule, subject to the qualifications after mentioned.

The word "ademption," when applied to specific legacies of stock or of money, or securities for money, must be considered as synoni

mous with the word "extinction." For it should be observed, that if stock, securities, or money, so bequeathed, be sold or disposed of, there is a complete extinction of the subjects, and nothing remains to which the words of the will can apply :(a) for if the proceeds from such sale or disposition were to be substituted and permitted to pass, the effect would be (as expressed by a learned Judge) to convert a specific into a general legacy.(b) But with respect to general legacies not given as portions, (c) the rule respecting ademption depends upon different considerations. The intention of the testator is immaterial in the ademption of specific legacies, because the subject being extinct at the death of the testator, there is nothing upon which the will can operate; but it is otherwise in regard to general legacies which are payable out of the general personal estate: there the question whether any advancement by the testator in his life time to the legatee shall be considered an ademption or in substitution of the bounty given by the will must depend entirely upon the fact, that such was the testator's intention.

It follows from the foregoing observations, that a distinction is to be made upon the present subject between legacies properly specific, and legacies in their natures only specific, i. e. in some respects general, and in others specific; instances of which were produced in the third chapter; for since those latter legacies do not depend upon the specific fund appropriated for their payment, the extinction of it cannot adeem such bequests. (d) It is now proposed to consider,

First, The ademption of legacies that are regularly specific; and, 1. Of stock.

It may be considered as settled, that when stock is specifically bequeathed, and it does not wholly, or does only in part exist at the testator's death, the legacy will either be totally or partially adeemed, as the case may be. Suppose then A. to bequeath to B. 3000l. three per cent. consols, part of A.'s stock then standing in his name in that fund; if the stock should not be so found at A.'s death, the legacy to B. will be wholly or in part adeemed, according to the state of the property.(e)

Thus in Ashburner v. M'Guire, (f) A. bequeathed to the following effect; "To B. now at school with the reverend, &c. my capital stock of 1000l. in the India company's stock, with the dividends," &c. The fund was afterwards sold by A.; and Lord Thurlow determined, after a review of all the preceding cases, that B.'s legacy was adeemed.

The principle of his Lordship's decree was that before stated, viz. that by sale of the specific stock the legacy was annihilated, and there was no subject to which the description of the bequest would apply. And it appears from Sir John Simeon's note of the subsequent case of Badrick v. Stevens, (g) that a testator's intention to

(a) 3 Bro. C. C. 432. Ed. by Belt. (c) See next chapter.

(b) 9 Ves. 360.

(2) Ambl. 368.

(e) See Ashton v. Ashton, Forrest. 152. Evans v. Tripp, 6 Mad. 91.

2 Bro. C. C. 108--114. also see Sleech v. Thorington, 2 Ves, sen. 561-564. Drinkwater v. Falconer, Ibid. 623. and Humphreys v. Humphreys, 2 Cox, 184. severally stated ante, pp. 164. 168. 163. Birch v. Baker, Mose. 373.

(g) Stated by Mr. Belt to that case, 3 Bro. C. C. 432. And see 2 Cox, 182.

adeem, or not to adeem the specific legacy, formed no consideration in such a case, for (said his Lordship) "the discharge of a debt (specifically bequeathed) is not strictly an ademption which depends upon the intention to adeem; but it is an extinguishment of the legacy by annihilation of the subject liable." This being so, let us suppose the occurrence of a case where the testator sold the stock he had specifically bequeathed; by which act the legacy became extinct; and that he afterwards purchased stock in the same fund sufficient to answer the specific bequest. Would the legatee be entitled to the stock so purchased in lieu of that which was bequeathed to him and had been annihilated? The opinions of some great Judges have been expressed in favour of the legatee;(h) but there is no decision upon the subject. The case of Partridge v. Partridge referred to in the last note and the only one that bears any resemblance to an authority, is that of a bequest not properly specific, but a legacy in its nature only specific (before described,)(i) and therefore does not fall within the present inquiry. Considering, then, this question upon the principles before mentioned, it seems difficult to reconcile them with the opinions above referred to. For when a testator bequeaths particular stock which he possessed at the date of his will, and not at the period of his death, it is not easy to conceive how stock, which he afterwards purchased, can pass in lieu of that identical stock of which he had by express words of reference specifically disposed. The reasons against the construction are these: first, that the testator only intended to dispose of the identical stock which he possessed when he made his will. Secondly, that the terms of the bequest are so framed as to extend to no other stock. Thirdly that the testator's intention to pass to the legatee the after purchased stock, in lieu of that disposed of, cannot avail, since there are no words in the will bequeathing it to him.(k) Fourthly, that a contrary construction would be inconsistent with the nature of a specific legacy, in allowing compensation for the destruction or nonexistence of the thing specifically given; and it would confound the distinction between a specific legacy, referring to the date of the will, and one expressly referring to the testator's death. And lastly, that cases of the present description differ from those where the stock or fund, remaining the same, or the same in substance, was held to pass to the legatee. For these reasons, it is presumed, that when stock, which the testator had at the time he made his will, is specifically bequeathed, and is sold by him, the legacy is irretrievably gone, and that the legatee is not entitled to the benefit of any stock which the testator may have purchased in the same fund after the date of his will.()

From the view which has been taken of the ademption of specific legacies, it follows that the intention of a testator is not a necessary ingredient in the transaction; and that the only thing to be ascertained is, whether the stock, of which the testator was possessed when he made his will, existed at the time of his death in the

(h) By Lord Talbot in Partridge v. Partridge, Forrest. 227, by Lord Hardwicke, in Avelyn v. Ward, 1 Ves. sen. 426, and by Sir Thomas Sewell, M. R. in Drinkwater v. Falconer, 2 Ves. sen. 625.

(i) Ante, p. 150,

(k) 2 Madd. 281.

(1) Vide infra, sub. sec. 3.

state described by such will; and if not, then that the legacy is necessarily adeemed by the annihilation of the subject. Such is presumed to be the general rule. But in forming opinions upon cases according to that rule, the following distinctions or qualifications appear to require attention.

First. When the alteration of the fund is made by mere act or operation, of law.

If A. bequeathed to B. 3000l. three per cent consols, and that fund were afterwards converted into one of a different description by Act of Parliament, so that the fund and specification in the will were at variance, the conversion would not probably be adjudged an ademption of the legacy; because the alteration of the fund not having been made by the testator but the legislature, the act may not be allowed the effect of prejudicing the legatee; and since the change might neither have been foreseen, nor could be prevented by the testator, it would be unjust to permit that transaction, to defeat the disposition specifically made by his will.(m) Besides, the thing given is not annihilated, but exists under a different denomination, effected by the law alone; quæ nemini facit injuriam.

Secondly. The law will not permit a fraudulent transaction to operate to the injury of any person, whilst there remain any means to make reparation. Hence, a second qualification of the above rule may happen where a breach of trust has been committed, or any trick or device practised with a view to defeat the specific legacy.(n) Suppose, then, stock specifically bequeathed, to be sold or transferred into another fund by a trustee, without the knowledge or authority of the testator. It is conceived that such a transaction would not be permitted to defeat the bequest, upon the principle that the act of a trustee will not be allowed to prejudice the cestui que trust, or the persons claiming under him; and that a court of equity will consider, for the purposes of justice, the stock as still subsisting in the fund described, and answering the specification in the will. It is also presumed, that the legatee is entitled to follow the subject into other funds, or to full recompense out of the trustee's property, as the nature of the case may require. And,

Thirdly. If the fund, instead of being annihilated, remain the same or in substance the same, as at the date of the will, with some unimportant alterations, so as not materially to change the interest which the testator then had, those slight variations will not adeem the specific bequest. According to this qualification, if stock, specifically given, be merely transferred, with the testator's consent, from the name of his trustee into his own, it has been decided that such transfer will not operate to the injury of the legatee; a decision not inconsistent with the principle which requires the stock specifically given at the date of the will, to be in existence at the death of the testator; because the stock is in fact then in existence, and was never extinguished at any period after it was bequeathed; so that, excluding any consideration of intention, the stock, specifically given, continuing in the same fund, and the property of the testator, both when he made his will and at his death, (the possession of the

(m) See Partridge. v. Partridge, Forrest. 226. Bronsdon v. Winter, Ambl. 59. (n) Vide 2 Vern. 748. ed. by Raithby.

trustee being that of the testator,) a construction that the stock did not fall within the words or meaning of the bequest, in consequence of the mere change of the names in which it stood, i. e. from the name of the trustee into that of the cestui que trust, would be contrary to the common sense, and if not to the strict letter, to the fair meaning of the legatory words. The case referred to is Dingwell v. Askew,(o) and was to the following effect:

Previously to the marriage of A. stock was vested in trustees to her separate use for life, then to the issue of the marriage, afterwards according to her appointment by will, notwithstanding the marriage, and in default of appointment to A. absolutely. A. executed her power, and survived her husband. After which event she took a transfer of the stock from the trustees into her own name, and made no other will or disposition of it. The question was, whether the transfer was an ademption of the bequest? And Lord Kenyon, M. R. determined in the negative.

The last case seems also an authority, that the transfer of the fund, specifically bequeathed, into the names of new trustees, will not affect the specific bequest. But to proceed one step further. Suppose the trustees to be authorized by deed or will, to change securities with the concurrence of A. the person who was empowered to dispose, and had disposed by will of the fund, then in stock; and they, with his consent, sold the stock specifically bequeathed, and invested the proceeds upon a mortgage. Would that be an ademption? It is conceived that the transaction would not have that effect, since the change of securities being made under the authority in the original instrument, the new security (as usually declared,) is subject to the trusts expressed in that instrument, one of which was for the benefit of the testamentary appointee of A. Hence, the act which would in other cases have effected an ademption by extinguishing the fund, is precluded from so doing in the present instance, from the nature of the transaction springing out, and part of the original instrument. The title of the appointee, moreover, did not rest solely upon the testamentary appointment, but was also derived under the instrument imparting that power.

Fourthly. The last qualification of the rule which will be noticed, occurs in instances where the testator lends the stock, specifically bequeathed, on condition of its being replaced. Cases of this kind. are analogous to those where a cup, or other article, specifically given, is afterwards pledged by the testator, and continues so till his death; a circumstance which, we have seen, instead of being an ademption, entitles the legatee to have the subject redeemed by the executor, and delivered according to the bequest.(p) So in the present instance, the testator continues owner of the stock, notwithstanding the loan of it; and although it be not literally existing in his possession at his decease, yet he is in fact substantially and beneficially possessed of it at that period, and it is presumed that the transaction would not adeem the prior specific disposition of the fund.

(0) 1 Cox Rep. 427. and see Ambl. 260. 3 Bro. C. C. 416. Mose. 373-376. (p) Supra, p. 229. and 2 Bro. C. C. 113.

VOL. I.

Hh