108 N.Y. 535 | NY | 1888
The appellant contends that a devise of real property to the respondent was satisfied by the payment to her in the testator's, her father's, lifetime, of a sum of money, and for which she gave a writing in the following form:
"Received of Oliver Comfort $500, which money I receive as my part of my father's estate up to this time, and all such other property as he may accumulate up to his decease. In witness whereof I have hereunto subscribed my name."
"Dated Southport, May 14, 1864," and signed "Harriet Burnham, in presence of Lawrence Lain."
By testator's will, made prior to that date, he had devised to his brother certain lands for life, and after his death to this daughter. His residuary estate testator gave to his son Oliver, this appellant. Testator died some fifteen years after the receipt was taken from his daughter, and there is no evidence of any revocation or alteration of his will, or of any part thereof, having been made by other will or codicil, or instrument executed with the formalities of a will. It was found as a fact below, and it is conceded here, that this payment by testator to his daughter was intended to be in lieu of the devise to her in the will, and that it was so accepted by her at the time.
The question is thus squarely presented whether a satisfaction of the devise in the will to the daughter was effected. If we should hold that such was the effect of the transaction between the father and daughter, we must hold that it operated as a revocation of the will to the extent of the provisions affecting the daughter's estate thereunder. We think such a proposition to contravene the spirit, if not the letter, of the provisions of the Revised Statutes of this state applicable to *539 wills, and that it lacks support in principle as it does in authority.
The rule of ademption is predicable of legacies of personal estate and is not applicable to devises of realty. (Story's Eq. Jur. § 1111; 2 Williams on Exrs. [5th Am. ed.] 1202; 1 Roper on Legacies 365; Davys v. Boucher, 3 Young Coll. Eq. Rep. 397;Langdon v. Astor's Exrs., etc.
But a deeper principle underlies the consideration of this question in the effect to be given to our statutes governing the making of wills. A specific devise of real property may be revoked by alteration or alienation of the estate during testator's life (Livingston v. Livingston, 3 Johns. Ch. Rep. 154; McNaughton v. McNaughton,
In these provisions I think I see ample reason for refusing our sanction to the introduction of a doctrine, which, while if applicable at this day to legacies of personal property, can work no especial prejudice to rights of property in such application, yet in its application to devises of real property might work great mischief and tend to endanger the safety of titles which depend for their security upon the conduit of a testamentary devise. The reason for refusing to extend the application of the principle of satisfaction to devises of real estate, which was assigned in the case of Davys v. Boucher (3 Young Collier Eq. Rep. 397), was that to so extend it would repeal that provision of the statute of frauds which applies to the revocation of wills of real estate.
The sixth section of the English Statute of Frauds (29 Car. chap. 2 § 3), provided that devises in writing of lands, etc., should be revocable by some other will, or codicil, or writing declaring the same, or by destruction by testator's act; and that all such devises should remain in force unless so destroyed, or unless altered as mentioned, by will, codicil or writing, witnessed in form. The subsequent passage of chapter 26 of 2d Victoria, placed the revocation of wills of personalty upon the same footing as wills of realty. (1 Wms. on Exrs., 106, 107, 130, 131.) There is a sufficient likeness in the English statute to ours to make the reasoning applicable here.
A rule of law which has heretofore been sanctioned and relied upon, which is in unison with the spirit and with the sense of our statute and which offers a safe rule of property, is rather to be followed, than to be departed from for reasons moving from the circumstances of a particular case. Reference to adjudged cases in the courts of other states only serves to confirm us in the views we have expressed. (Clark v. Jetton, 5 Sneed, 229;Allen v. Allen
The judgment should be affirmed.
All concur except EARL and PECKHAM, JJ., dissenting.
Judgment affirmed. *542