68 Ga. 589 | Ga. | 1882
John M. C. Reed died testate. The fourth item of his will is as follows :
“I give to my son, Milton P. Reed, city lot No. (53) fifty-three, on Marietta street, also lot (72), known as the mill property, containing about twenty-two acres. The mill and five, acres of this lot has been sold to Mr. Grant-ham. Milton will receive the proceeds of this sale.” .
The record shows that before the death of testator the sale of the mill property to Grantham was canceled. The testator having to take the property back, he after-wards succeded in selling a part of it, to-wit, the engine and fixtures to one. Cowen for one thousand dollars.
The judge below held and decreed that the proceeds of the last sale did not pass to the said legatee.
The clear intention of the testator was that his beneficiary was to have the mill property, or the proceeds of the sale, and that regardless of the fact as to whether the same were realized from Grantham or from another purchaser. The mentioning of the name of Grantham was incidental and immaterial to the bequest; whether inserted or omitted did not affect the rights of the legatee to the proceeds of the sale. Had the testator simply said, after giving the lot 72, known as the mill property, “five acres of this lot have been sold, and Milton will receive the proceeds of this sale,” it would have conveyed to him just what was conveyed, no more and no less.
That the testator had to take back the property did not affect the legatee’s right; for his bequest is of the lot known as the mill property, and the proceeds of that part which is sold. Nor did the fact that the testator after-wards could effect a sale for a part only of the mill property, change the rights of the legatee to that of the proceeds of the sale, any more than if the original sale had been rescinded precisely to the same extent.
The only difference between the condition of this legacy when the will was executed, and when the testator died, was that he had substituted the notes of Grantham with those of Cowen. That he did not have them for precisely the same amount does not change the legal principle. To the extent that he could substitute the one for the other he did so, and for the balance he had the -identical property. Where a testator exchanges the property bequeathed for other of like character, the law deems the intention to substitute the one for the other, and the legacy will not fail. Code, §2464.
It is true that a legacy is adeemed when the testator conveys to another the specific property bequeathed, or otherwise places it out of the power of the executor to deliver over the legacy.
In this case there was such provision by the will as secured without fail either the property or the proceeds of the sale to the legatee.
There existed but one possible chance for its ademption, and that was the placing the property or the proceeds thereof out of the power of the executor to deliver the same. That contingency did not happen ; the property in part and proceeds in part are in the hands of the executrix ; she can .deliver both over, and it is her duty to do so.
Thus to hold, would be to declare that any .disposition proposed, or exchange of property suggested, or offer to sell, or intention to use in any other way property bequeathed, inconsistent with such bequest, would be equivalent to such absolute sale or other disposition thereof.
Nor is this view of the law at all inconsistent with the ruling in the case of Rogers vs. French, 19 Ga., 316. In that case the question was whether an advance to a legatee by the testator in his life time, and after the making of his will, was an ademption of the legacy given by the will. The court held that it was a question of intention which might be deduced not only from the face of the will, but might be destroyed or confirmed by parol evidence. Whilst we admit that questions of advancement are questions of intention, and parol testimony will be heard to ascertain intention in such cases, yet we do not think that mere declarations of a testator will be heard to revoke a legacy, or set aside a will where no such question arises.
Judgment reversed.