Paine v. Parsons

| Mass. | Oct 15, 1833

Shaw C. J.

delivered the opinion of the Court. In debt on a probate bond, the general question is, whether certain advances and payments, made by the testator in his lifetime to his daughter and to her husband, after her marriage, are to be considered as an ademption and satisfaction pro tanto of legacies given to her by his will. The general rule seems well settled, that an advancement of money or goods to a child, especially on marriage, is presumed to be an ademption of a legacy, for like money or goods specified in a will previously made by the father, on a presumption that it was so intended. The general rule is not much contested in the present case ; but it is insisted that such a presumption is rebutted by the fact, that the testator, after the marriage of his daughter, and after the delivery of the money and goods, made a codicil operating by way of republication of his will, by which he gave the same daughter $100,' in addition to what he haa before given her. But the Court are of opinion, that the republication of the will by the codicil, did not rebut the presumption of ademption and satisfaction of the legacy given by the will, or change the general rule. There is nothing in the fact itself, or in the circumstances of the case, to indicate such an intent on the part of the testator. The effect of the codicil, in giv‘ng her $ 100 in addition &c., was to indicate an intent that on the whole she should have out of his estate, by testamentary nrovision, $ 100, in addition to what he had before conlemolated, and that he did not mean to disturb or affect what had neen then already done.-

The charge on the testator’s book is legal proof of the pay ment and advance ; and the gift by the will being of $ 268, in goods and furniture, payable to her upon her marriage, and the actual advance being of money, and goods and furniture, at the time of her marriage, the gift so far connects itself with the legacy, in these particulars, as to strengthen the conclusion, that the gift was by way of portion and in anticipation of the legacy, and, of course, amounts to ademption and satisfaction pro tanto.

The charge in the book was in conformity with the provisions of the statute of descents and distributions, directing what shall be evidence of an advancement, in case of an intestate ; St. 1805, c. 90, § 3 ; and being in a case strictly analogous, and within the principle, if not within the terms of the statute, is to be considered legal evidence.

As to the receipt there is no question ; but as to the small order found pinned to the leaf of the book, in which the charges were made, there is certainly more doubt. Considering however the length of time the order had remained uncalled for, the place where it had been fixed by the testator, among other vouchers preserved as evidence of advancement, we think t was evidence of the intent of the testator to treat it as an advancement, and therefore that it operates as payment and ademption pro tanto.

If no other breach of the bond is established, the defendant will be mtitled to judgment