10 N.J. Eq. 158 | New York Court of Chancery | 1854
The object of the bill is to collect a legacy due the complainant under the last will of his father, James Sims. Gerris Sims, one of the defendants, is the sole surviving executor of the will, and he and the other defendants are devisees in possession of real estate devised to them by the testator. After setting out the will, the bill states, that the executor, in the year 1850,
The prayer is, that the complainant may be decreed entitled to his legacy, and that it may be paid out of the personal estate, and if that is deficient, then that it may be paid out of the testator’s real estate.
The bill was answered by three of the defendants, Gerris Sims, the executor, and John and Smith Sims. The answer admits that the executor paid off all the debts of the testator, and all the legacies, except the one to the complainant. It admits the settlement in the Orphans
Admitting all the facts contained in the bill to be true, the complainant is not entitled to relief against any of the defendants, except the executor.
The bill seeks to charge these defendants upon two grounds: First. That the lands which they are in possession of as devisees are charged with the payment of the pecuniary legacies. Second. That if the lands are not chargeable by the terms of the will, the complainant has a right to call upon the defendants for contribution, on the ground that their respective legacies have been paid in full, and the executor having misapplied the funds in his hands, and being insolvent, the complainant has no
Nor is the complainant entitled to call upon these defendants to refund any portion of the personal estate which they received from the executor in payment of their legacies. It is admitted that, after their legacies were paid, there remained in the hands of the executor sufficient assets to discharge the complainant’s legacy. If this is so, the complainant must resort to that fund. If the executor has squandered it, and is insolvent, it is the mis
As to these defendants, therefore, upon the pleadings, the complainant is not entitled to relief, and, as to them, the bill must be dismissed.
As against Gerris Sims, the executor, the complainant is entitled to a decree against him, unless he has established by proof the defence set up in his answer, that the testator, after making his will, satisfied the legacy.
To establish this issue in his favor, this defendant has proved that the testator, after the execution of the will, advanced to his son, the complainant, seven hundred dollars; that the testator declared that such advancement was in satisfaction of the legacy, and that since the testator’s fleath the complainant has himself declared that the testator paid him seven hundred dollars in lieu of the legacy. The evidence to establish the fact is conclusive and satisfactory, and the defence set up must prevail, unless the objection interposed by the complainant, to wit, that
The intention of the testator is the very essence of ademption. Two facts, therefore, must necessarily be established, the advancement, and the intention of the testator that such advancement was in satisfaction, or a substitute for the bequest.
In the instance of parent and child, equity raises the presumption that the legacy is intended as a portion, whether the will so expresses it or not. If afterwards the parent advance a portion to the child, the legacy is satisfied, the advancement and the legacy being for the same purpose. Parol testimony is admitted, therefore, not to raise, but to confirm a presumption. LoperonL. 272-3-4, and cases there cited. In 2 American Lead. Cas. 435, the cases are collected, and the admission of such testimony seems to be very firmly settled upon authority. In Gresley’s Eq. Ex. 213, it is said the reason is shortly this: If a person who has inserted in his will a legacy for a particular purpose, afterwards executes that purpose himself in his lifetime, he is presumed to have intended to cancel the legacy, which is consequently held to be adeemed. Secondly ,a father leaving a legacy to a child, is presumed to have intended it for the particular purpose of fulfilling his moral obligation of portioning that child. It follows that parol, or any other kind of extrinsic evidence, may be adduced to prove that he did, or did not, intend that legacy as his child’s portion, or that he did, or did not, intend to cancel it.
In this case, it only became necessary for the executor to offer parol evidence, in answer to that which the complainant introduced to rebut the presumption which was in favor of the executor, that the legacy was satisfied by the advancement. The case was with the defendant without his being obliged to resort to such evidence. If it was proper for the complainant to overcome this presumption by parol, it was equally proper for the defendant to resort
This cause came up on a rehearing; and upon a review of the case, I do not think the burthen of the whole costs of the suit should fall upon the complainant. The former decree, made by the late Chancellor, was, if my views are correct, erroneous. It was the result, I think, of a misapprehension of the case, which arose from the manner in which the case was submitted, the real points in controversy not having been presented to the court. The bill must be dismissed with costs, not including the cost upon the first hearing, or that attending upon the opening of the first decree.'