And Lord Hardwicke determined in the negative, for the reasons before mentioned.(t) SECONDLY, as to leases for lives. The renewal of leases for lives will always create an ademption, when such renewal is made after the date of the will, because by the surrender of the old leases there is nothing upon which the devise can operate. It cannot pass the old estates because that was determined by the surrender, and it cannot transfer the new estate acquired by the renewal, since that being freehold, it is a rule that no freehold interest can pass by a will, but such which a testator was seised of, or entitled to, when he made that instrument.(u) SECT. II. ABATEMENT of Specific Legacies. Having in the preceding section treated of those acts of a testator which will operate as ademptions of specific legacies, it is intended to consider, in the present section, the circumstances under which specific legatees will be under the necessity of parting with the whole, or portions of their legacies, although the subjects devised to them remained and were not adeemed at the testator's death. This obligation upon specific legatees is technically known by the term "abatement." 1. It is a rule, as noticed in the beginning of the third chapter,(x) that specific legatees can only be called upon by the executor for abatement, upon failure of the general personal estate to discharge debts. These legacies, therefore, must be fully satisfied to the prejudice of general legatees. But when the personal assets, not specifically bequeathed, are deficient to pay all the debts, then the specific legatees must abate or contribute in proportion to the value of their individual legacies.(y) The principal is the presumed intention of the testator, (presumed from his severing specific parts of his personal estate from the rest, and bequeathing them specifically,) to give a preference to those legatees. The rule of abatement, as before stated, is clearly settled. The principal difficulty is to ascertain when the legacies are specific, a subject discussed in the third chapter, and from which it will appear what legacies are and what are not specific. After the preceding observations, we shall proceed to consider instances of abatement, that are likely to occur in practice, and require particular consideration. 2. Cases may arise of stock, or of the proceeds of an estate directed to be sold, being specifically given in fractional parts, and testators may have miscalculated the amount of the stock, and may have been mistaken in the probable proceeds to arise from the estate to be sold, so that the stock and such proceeds are insufficient to answer the whole of the portions of them given or intended for the several legatees; or it may be necessary to resort to those funds, so parcelled out, for contribution upon a deficiency of assets (t) Stirling v. Lydiard, 3 Atk. 199. Digby v. Legard, Dick. Rep. 500-503. (u) See 1 P. Will. 575. Marwood v. Turner, 3 P. Will. 170. Abney v. Miller, 2 Atk. 597. Digby v, Legad, Dick. Rep. 500. Cited 1 Bro. C. C. 501, S P. Will. note p. 22. (x) Supra, p. 150. (y) Sleech v. Thorington, 2 Ves, sen. 561-564. Clifton v. Burt, 1 P. Will, 680. Duke of Devon v. Atkins, 2 P. Will, 383. VOL. I. K k to pay debts, and in consequence the application of the general rule in regard to abatement may be attended with uncertainty. In all those cases the intention of the testator, to be collected from his will, is the guide; and it would seem, from the authorities after referred to, that, in general, if the person to whom the last fractional part of the stock or proceeds is given, be appointed to take it as the residue or remainder of the specific fund, whatever may be its amount, then he, as residuary legatee, will only be entitled to the surplus of the fund, after full satisfaction of the other aliquot parts of it specifically bequeathed; so that such person in the character of residuary legatee can show no right to call upon the particular legatees of fractional parts of the stock or proceeds to abate, for since, if there had been an excess of the funds, he, as residuary legatee, would have been entitled to it; so, if there be a deficiency, it is only equitable that his share should be minus in that proportion. Upon this principle Lord Thurlow determined in the case of Danvers v. Manning,(z) before stated. (a) But although the last aliquot share of the fund be given by the word "remainder" or "residue," yet if, from the context of the will, it appear to have been the testator's intention that all the specific legatees should have certain defined parts or proportions of the subject, by whatever words they were bequeathed, then the last named legatee, although in terms a residuary legatee, will be entitled to call upon the other legatees of parts of the fund to abate equally with him upon their respective shares. An instance of this occurred in Page v. Leapingwell, (b) stated in the third chapter.(c) 3. It has been observed, that the testator's intention is the principle upon which a court of equity acts in arrangements of abatement; in conformity with which, if the testator's freehold estate be subject to debts, a specific devisee of it will be obliged to contribute upon a deficiency of the general personal assets with the specific legatee of a chattel. Accordingly, if a freehold estate be devised to A. and a leasehold to B. and the testator die indebted by bond to an amount more than sufficient to exhaust the personal fund, B. may compel A. to abate or contribute with him to the satisfaction of the debts. The reason is, that both estates are liable to those demands, and it was equally the testator's intention that B. should have the leasehold, as that A. should have the freehold estate. This was decided in the case of Long v. Short.(d) But the determination would be different if the debts were only by simple contract, and were not charged upon the real fund; for then the leasehold, as the sole remaining estate liable to those duties, must be wholly applied towards their liquidation. From the preceding observations, the following remarks occur respecting estates pour autre vie of which a testator was seised at the time of his will, and of his death. If an estate limited to a testator and his heirs during the life of A. be devised by him to B. and a leasehold estate to C. and the general personal assets are in (z) 2 Bro. C. C. 19-22. 1 Cox, Rep. 203, S. C. and see 1 P. Will. 404. autre sufficient to pay all the debts by specialty, B. and C. must contribute in proportion to their legacies in supplying the deficiency; because both estates are liable to those debts, the freehold pour But as vie being placed in the same situation in that respect under the statute of fraudulent devises(e) as an estate of inheritance. estates pour autre vie so limited to the heirs are not liable to simple contract debts, C. could not call upon B. to abate in respect of them. If, however, the grant of the estate pour autre vie had been limited to the testator, his executors, &c. since that species of interest is made personal. estate by the statute of frauds, (f) if specifically devised as before, B. would be liable to abate with C. in discharge of debts by simple contract, as well as those by specialty.(g) It has been noticed that, in general, specific legatees are not compellable to abate in favour of general legatees; but to this rule, as to most others, there is an exception. For if the whole of a testator's personal property be disposed of specifically, and he bequeath general legacies, the latter must be paid out of the former. Suppose, then, a person possessing personal estate at B. and C. only, to bequeath it to D. and E. and then to give a legacy to F. The personal estate at B. and C. will be liable to the payment of the legacy in proportion to their several amounts, because there never were any other funds out of which it could have been satisfied, and the usual presumption of preference intended by testators in favour of specific legatees is repelled in this instance.(h) 4. It is proper in conclusion, to refer to those legacies which are in one sense, specific, and in another, general. They have been described in a preceding chapter, as bequests of money, with reference to a particular fund for their payment, and not simply a gift of the specific fund itself.(i) Those legatees have such a lien upon the specific fund referred to, that they will not be obliged to abate with general legatees; (k) and in this, as in the preceding cases, the testator's intention is the principle; for it is inferred, that he, in referring to specific parts of his estate for payment of particular legacies, intended those legacies a preference to others which he had not so secured. Thus, if A. bequeathed to B. 500l. out of a debt of 1000l. or out of his 2000l. three per cent. consols; B. will not be obliged to abate with the general legatees upon a deficiency of general assets to pay all debts and legacies. This was so settled in the cases below referred to(1), and before stated. But if the fund out of which the legacy is payable, happen, from any cause, to be insufficient fully to discharge it, and the personal estate fall short to answer the deficiency, and wholly to pay the other legacies, B. is so far a general legatee, (e) 3 & 4 Will. & Mary, chap. 14. and see Westfaling v. Westfaling, 3 Atk. (h) By the Chancellor in Sayer v. Sayer, Pre. Ch. 393. Smallbone v. Brace, Roberts v. Pocock, 4 Ves, 150--160, ante, p. 181. and Lambert v. Lambert, 11 Ves. 607, supra. p. 171. as that he may oblige those other legatees to abate and contribute with him their proportions of the deficiency in the fund. B. however, can be in no better condition than a specific legatee, so that if the other general assets be insufficient to pay all the debts, he must abate with other specific legatees, and in this respect he is to be considered a specific legatee, and entitled to call for such contribution.(m) CHAPTER VI. Of General Legacies, and their Ademption, and of Parol Evidence in certain cases on that subject. SECT. I. Of the ademption of legacies given as portions to children by their father. 1.-When the children are legitimate. 2.-Exceptions to the presumption of ademption in cases under the last article. .. SECT. II. Of the ademption of Legacies by subsequent advancements when the legatees are considered strangers to the testator, and the legacies not portions. 1.-When the legacies are mere bounties; and of bequests to natural children by their putative father. 2. When a testator has placed himself in loco parentis. 3 and 4. Of the admissibility of parol evidence on the last subject; as also to prove an intention to adeem when the testator is, or is considered to be, a stranger to the legatee. 5.-Of the sufficiency and insufficiency of such evidence when admissible. 6.—And the different degrees of importance attached to parol evidence in detailing declarations of testators, in regard to the times when and to whom they were made. A LEGACY is general when it is so given as not to amount to a bequest of a specific part of a testator's personal estate; as of a sum of money generally, or out of the testator's personal estate, and the like.(a) In the beginning of the last chapter it was attempted to explain the distinction of ademption as applicable to a specific or to a general legacy not given as a portion. It was considered that an intention to adeem by a testator's receipt of the subject specifically given was immaterial, since the legacy must be necessarily defeated, whatever the testator's meaning or purpose might have been, because the thing was extinct, and nothing remained at his death to which the testamentary description could apply. But that with respect to general legacies, not given as portions, which are payable out of the (m) 4 Ves, 160. (a) See chap. II. passim, and particularly pp. 49, 50, 60, 74. general personal estate, intention is of the very essence of ademption; since, whether an advancement by a testator during his life should or should not be a satisfaction, or in substitution of what he had bequeathed to the person so advanced, is a question of fact, which can only be resolved by reference to the intention of the donor.(b) In treating upon the subjects of the present chapter we shall begin, SECT. I. With the ademptions of portions given by will. 1. It is now the settled doctrine of a Court of Equity, that where a father gives a legacy to a legitimate child, without stating the purpose for which it was given, he is to be presumed as having intended it as a portion, whether he call it so or not; and that if he afterwards advance a portion upon the child's marriage, it is a satisfaction of the legacy, the advancement and the legacy being for the same purpose. And it will be a complete ademption of the legacy, although the sum advanced be not equal to, but less than the testamentary portion; and for this reason, that the father, owing his child a debt of nature, is sole judge of the amount of the provision by which he intends to satisfy it; and although at the date of his will he conceived that he could not discharge his moral obligation with less than, suppose 10,000l.; yet, that by a change of circumstances, and of his sentiments upon the extent of that obligation, he thought that it might be satisfied by an advance of a portion of 5000l. (c) In ex parte Dubost, (d) Lord Eldon seems to consider the doctrine of the Court to be this: that where a father gives a legacy to a child it must be understood as a portion, although not so described, because it is a provision by a parent for his child. And that the father afterwards advancing a portion for that child, will by that act adeem the legacy, although there may be slight circumstances of difference between the advancement and the portion, and a difference in amount.(e) We shall next proceed to adducè authorities in support of the above observations. FIRST, Of the advancement by a parent to his child being primâ facie an ademption of a legacy given to it by his will. In Elkenhead's case,(f) a father bequeathed 1000l. a piece to his five daughters. He afterwards advanced, upon the marriage of one of them 1000l., and it was determined that her legacy or portion was adeemed. So also in Ward v. Lant,(g) A. bequeathed 5000l. a piece to his four daughters as their portions, to be raised out of his real estates; and he afterwards advanced to one of them upon marriage 4000l.; which was decided to be an ademption of the legacy. The Master of the Rolls held the same doctrine in Scotton v. Scotton, (h) and in Tapper v. Chalcroft, (i) a case before Lord Hardwicke in the year 1739, his Lordship determined, that a legacy given to a daughter by her father was adeemed by his subsequent advancement of a marriage portion. Again, In Watson v. Lord Lincoln,(k) Mr. Pelham having four daughters, appointed by will under a power in his marriage settlement (b) Chap. V. pp. 238. 253. 254. (c) 18 Ves. 151. (e) See 2 Atk. 518. and 17 Ves. 191. 2 Cox's Ca. 220. (d) Ibid. 153. (f) Cited 2 Vern. 257. and see Farnham v. Phillips, 2 Atk. 215. (g) Pre. Ch. 182. (h) 1 Stra. 236. (i) Cited 2 Átk. 492. (k) Ambl. 325. |