39 Barb. 507 | N.Y. Sup. Ct. | 1863
By the Court,
The testator, in the body of his will, has expressly avowed his intention to make his children equal in the distribution of his estate hy advancements during his life and the portions secured to each by his will, and the judgment of the referee clearly falls in with and carries out this intention. And from any express declarations of the testator, or any direct provision in the will for an ademption of legacies, the presumption of equity is against double portions. There has been some fault found with the rule as a rule of presumption or of evidence, and some with the reasons upon which it has been supported, by which a legacy or portion given hy will is deemed satisfied hy an advancement during the life of the testator. But the rule is unquestioned and the presumption of evidence well settled. It is carefully stated in Langdon v. Astor’s Ex’rs, (16 N. Y. Rep. 34,) “ for instance, when a parent or other person in loco parentis bequeaths a legacy to a child or grandchild, and afterwards, in his lifetime, gives a portion or makes a provision for the same child or grandchild, without expressing it to be in lieu of the legacy, it will, in general, be deemed a satisfaction or ademption of the legacy. This is upon the ground that the legacy is considered a portion, and if the testator afterwards advances the same sum upon the child’s marriage or any other occasion, he does it to ac
Allen, Mullin, Morgan and Bacon, Justices.]