In thе year 1869 Roland Keithley was seized in fee of a tract of land containing about three hundred acres upon which he resided. He had a number of children, all of whom had left the paternal
John C. continued to rеside with his father for about three years after the execution of the will, when he moved to the State of Illinois, where he remained about two years. Soon after his return his father, the said testator, conveyed to him in fee simple one hundred and fifty acres off the north side of said fаrm, which included the mansion house and other buildings. This one hundred and fifty acres was separated from the one hundred acre tract by a strip of land about eighty yards wide and over two thousand yards long. The express consideration for this deed is “the care and support of said Rolаnd Keithley (the grantor) and ten dollars.” The grantor was over eighty years of age when this conveyance was made, and died in three or four years after. After the death of his father the said John C. Keithley conveyed both tracts to plaintiff Fisher, who commenced this suit in ejectment tо recover the possession of the one hundred acre tract February 7, 1891. There had been some previous litigation in regard to the conveyance and the devise, both of which had been adjudged valid.
The petition is in the usual form of actions of ejectment. By his answer, аfter a general denial, de
The issues were tried by the court. Defendant, in support of his answer, offered evidence tending to prove all the allegations thereof. The evidence also tended to prove that the testator, Roland Keithley, when he made the deed, believed that the will hаd been destroyed and that John C. Keithley had forfeited the right to the devise to him for the reason that he had not continued to live with and care for him. The court found for the plaintiff ■ and judgment was rendered accordingly, and defendant appealed.
I. The claim of defendant, аs it appears from the answer, is that the devise of the one hundred acre tract made to John C. Keithley, under the will of his father, Roland Keithley, was adeemed, revoked or satisfied, by the subsequent conveyance to him of the one hundred and fifty acre tract.
It must be agreed that the evidence tends to prove, indeed is very convincing, that the testator intended that the provision made by the deed should operate as a revocation of the devise, or rather, he-believed that the devisee had forfeited the testamentary provision
So we must then take the will and deed together, both of which, taken separately, are valid instruments, and determine whether or not the latter revoked, adeemed or satisfied the provision made for said devisee in the former, assuming, as the еvidence tends to prove, that the testator intended it to have that effect.
II. In the first place, all the authorities, so far as we are advised, except one which we will notice further on, agree that the doctrine .of ademption only applies to bequests оf personal property. We find but the one case, in the absence of a statute, in which it has been held applicable to the devises of real estate. 2 Story, Eq., sec. 1111; 1 Am. and Eng. Ency. of Law [2 Ed.], 611, and authorities cited; 1 Roper on Legacies, 365; 2Woerner on Adm., sec. 446; Burnham v. Comfort,
"While no reason, on principles of justice and equity, seems to exist for the distinction made between a bequest of personal property and a devise of real estate, yet the distinction has ever been most uniformly made by the courts, not because the equities are not the same,% but because of the safeguards that have ever been thrown around the transfers of real estate, and contracts by which titles are affected. The rule has remained unchanged by the legislation of this State, though questions of the revocation of wills and of advancements have been dealt with, and we must assume that no change has been considered desirable. We do not think the courts, at this day, should take
The statute of frauds requires all agreements affecting thе title to real estate to bein writing (R. S. 1889, sec. 5182), and the statute concerning wills provides expressly how alone they may be revoked. R. S. 1889, sec. 8871. The section last cited provides: “No will in writing, except in the eases hereinafter mentioned, nor any part thereof, shall be revokеd, except by a subsequent will, in writing, or by burning, canceling, tearing or obliterating the same, by the testator, or in his presence, and by his consent and direction.” The doctrine of ademption is treated by the courts as a satisfaction rather than a revocation of the legacy. Thе theory is that the gift contemplated by the will to take effect after the death of the testator is advanced during his lifetime. The legacy is thus adeemed, or taken out of the will altogether, because the testator has already parted with its control. The subject of the bеquest is gone and the will has nothing to operate upon. Hence the gift must be ejusdem generis, as the bequest in order to effect an ademption. On the same principle a conveyance by the testator, daring his lifetime, of the land previously devised, operates as-a revocation of the devise. This results from necessity on account of a failure of the.subject of the devise. It can not be regarded either as ademption' or as an exception to the statutory mode of revocation. In neither case is it intended by the courts to set asidе the statute or to defeat its provisions.
Real estate is known and transferred by its description, and in case specific land is devised a subsequent conveyance of other land does not take the devised land out of the will and can not effect an ademption of thе devise without violating the letter and spirit of the statute. The statute was supposed to subserve a salutary purpose, and should not be disre
"We are cited to a decision of the Suprеme Court of the State of Virginia which holds that a devise of real estate will be adeemed by a subsequent marriage settlement of other land, of equal value, upon the devisee. Hansbrough v. Hooe,
So we say in this case. The devise of the tract of land in dispute remained unrevoked by any metho d provided by statute and the land which was the subject of the devise remained for the will to operate upon. There could therefore have been neither an ademption nor rеvocation of the devise.
III. It also appears from this record that the conveyance of the one hundred and fifty acre tract by the testator to the devisee was for a valuable consideration and was not made as a portion or advancement. Thе expressed consideration was $10 and an agreement to care for and support the grantor. An attack upon the deed for inadequacy of consideration was defeated. Keithley v. Keithley, supra. As has been said, the doctrine of ademption is founded upon the presumption thatthe testator only intended each object of his bounty to receive an equal portion of his estate. The doctrine therefore can not be extended to a payment in satisfaction of a legal obligation, orto property sold by the testator to the devisee for a valuable consideration. It only applies to a portion advanced to the legatee to-which he is by nature entitled. 1 Am. and Eng. Ency. of Law [2 Ed.], 616, and cases cited.
IV. There is no evidence that the conveyance was taken in satisfaction or substitution for the previous
It follows that both the devise and the conveyance must stand.
The judgment is affirmed.