7 Johns. Ch. 258 | New York Court of Chancery | 1823
The first bequest on v/hich a question has arisen, as to the ademption, is of “ all the testators right, interest and property, in 30 shares, which he then owned in the Bank of the United States, and in four shares which he owned in the companies of the northern and western inland lock navigation,”
The charter of the bank expired subsequent to the date of the will, and the property of the bank was conveyed to trustees, to be collected and disposed of for the benefit of those interested in the bank. The funds, from time to time, received by the trustees, were divided among the stockholders ; and the testator, in his lifetime, received certain dividends on the stock, but he never made any sale of the shares, and no dividends have been made since his death, though further dividends may be expected.
Upon this point, I am of opinion that these bank shares were given as a specific legacy. The testator evidently meant to give those indentical shares, whether they were worth more or less, and not the value of them in money. This would appear to be a very clear point; yet in considering this doctrine of ademption, it is difficult sometimes to perceive the distinction which is endeavoured to be kept up through all the cases, between specific and general pecuniary legacies. Where a debt or specific chattel is bequeathed, (legatum, nominis vel debiti,) the specific legacy is extinguished in the lifetime of the testator, by the extinguishment of the thing itself, as by payment of the debt, or by the sale or conversion of the chattel. But the adempdon does not apply to a pecuniary or demonstrative legac^’ w^ch is general in its nature, chough a particular fund be pointed out by the will to satisfy it. If the fund fails, such a legacy is to be made good out of the general assets, as die fund is designated only as the most convenient means by which to discharge it, and becomes descriptive of the amount or value of the gift.
We have an example of this kind of money legacy given in the civil law, and of the sound principle upon which the distinction is supported. The testator gave to Pamphila 400 aurei or pieces of gold, and referred to a debt which Julius, his agent, owed him, and to his property in the army, and to his cash. (Áureos quadringentos Pamphila; dari volo, ita ut infra scriptum est * ab Julio auctore áureos,
The cases in the English books turn on very refined distinctions between a specific and a pure legacy. Thus, for instance, where the testator gave to his niece 500 pounds, which Lady C. owed him by bond; (Pawlets case, T. Raym. 335.) or where the testator enumerated his mortgages, bonds and notes, and after giving an annuity out of the annual interest, directed his mortgages, bonds and notes? stating the amount, to be vested in trustees for charitable uses; (Attorney General v. Parkin, Amb. 566.) or where he gave 1400 pounds for which he had sold his estate that day ; (Carteret v. Carteret, cited in 2 Bro. 114.) or where he gave the money arising on a bill of exchange for 1500 pounds; (Coleman v. Coleman, 2 Vesey, jun. 639.) in all these cases, the receipt of the debt by the testator, was held to be no ademption, because the legacies were considered as pecuniary and not specific, notwithstanding a reference was made to a particular part of the estate, as the part out of which the testator, thought it most convenient they should be paid. The Courts are so desirous of construing the bequest to be general, that if there be the least opening to imagine the testator meant to give a sum of money, and referred to a particular fund only, as that out of which he meant it to be paid, it shall be construed pecuniary, so that the legacy may not be defeated by the destruction of the security.
On the other hand, in the case of á Bequest of the interest of a bond of 3,500pounds, for life, to B., and theprinci
But it is unnecessary to examine the decisions further on this point. The present case, as to the bank shares, is one to which the doctrine of ademption applies. It is impossible to mistake the construction of the will, or to consider the legacy other than a specific one, and that being granted, follows, of course, that the legacy was adeemed pro tanto, or as far as the testator received the dividends. And think it is equally certain, that the legacy of the shares was not wholly adeemed, or the legacy destroyed or extinguished by the variation of the testator’s interest in those shares, . owing to the dissolution of the charter. The fund was varied, and differently arranged, and diminished in value by operation of law, but not destroyed, nor its identity lost. In * / J J Backwell v. Child, (Amb. 260.) a partner by will bequeathed a certain proportion of the profits of the partnership, and afterwards the partnership expired, and was renewed with a variation as to the amount of the interest of the . - partners | yet it was held, that the renewal of the artides was not an ademption or revocation of the will. A case still stronger and more analogous, is that of Ashbur- ~ . D ner v. J\I‘ Quire, already mentioned. The testator bequeathed to his sister, for life, the interest of a bond due him, and he gave the principal, on her death, to her children. The debtor became a bankrupt, and the testator proved the debt under the commission, and received a dividend, and died. Lord Thurlow decreed against the administrator and residuary legatees, that the bond should be delivered to the sister and her children, that they might receive the future dividends of the bankrupt’s estate. The legacy was considered adeemed so far only as the dividend had been received by the testator; and the Chancellor held3 as Lord Camden and others had held before him, that there was no ground for‘a distinction between a voluntary pay
The same observations will apply to the shares in the lock navigation companies. The property of the Western inland Lock Navigation, Company was vested in the State, by an act of the Legislature, which assumed that interest, and provided for the assessment and payment to the company of the value of it. The two shares, which the testator owned in the western company, were, by some change in the stock, increased to six shares, but it was the same interest, and the defendant, as executor, has received, since the testator’s death, towards payment of the compensation allowed by the State, the sum of 327 dollars and 27 cents. If the legacy was not adeemed by the assumption of the property by the State, the defendant is accountable for that sum to the plaintiff; and that it was not adeemed, is most apparent. The case of Partridge v. Partridge, (Cases temp. Talbot, 226.) is in point, and founded on a principle obviously just. A. devised, in that case, 1000 pounds South Sea stock, and an act of Parliament afterwards changed three-fourths of the capital stock into annuities. But. Lord Talbot held, that this alteration of the stock did not work an ademption, for it was not to be presumed, that the testator’s assent to the law w-as particularly given, or that he agreed to such a law in any other manner than what every other person is supposed to do. The same decision was made on a similar point by the Master of the Rolls, in Bronsdon v. Winter. (Amb. 57.) The defendant offers to
2. The next branch of the case, relates to the lands devised to the plaintiff, lying between the Delaivare and Susquehannah rivers.
The testator, subsequent to the date of the will, entered into contracts for the sale of four several parcels of these .lands, and received part of the price in each case, and took a bond for the residue, and died leaving those contracts in full force, These contracts are set forth in the answer, and were binding upon the testator, and liable to be specifically enforced in equity ; and I entertain no doubt that the devise, so far as those contracts of sale affected the lands devised, was revoked. The case of Knollys v. Alcock, (5 Vesey, 654.) is to this effect; The testator, by will, devised her undivided moiety of her Berkshire estate to M., and afterwards, by agreement with her co-e . ^ e° , „ parcener, contracted to divide their joint interest, and to allot the Berkshire estate to K. This was held by Lord Loughborough to be a revocation of that part of the devise, and the agreement was decreed to be specifically performed, The principle was, that where an estate is devised specifically, and is afterwards sold by the testator by a contract executory, the estate goes from the devisee, and the devise is revoked by the contract of sale. So again, in Williams v. Owen, (2 Vesey, jun. 601) the Master of Rolls observed, that if a man articles for the sale of an estate that he has devised, it is, without doubt, a revocation in equity, though it is not at law, because a court of law cannot look at the articles with a view to a specific performance. In Cotter v. Layer, (2 P. Wms. 622.) Lord King held, that though a covenant or articles to sell or settle the land devised, do not at law revoke a will; yet, if entered into for a valuable consideration, they amount in equity to a conveyance and a revocation, He laid down the same rule in Rider v.
These cases are entirely suScient to show the settlement of the rule, that a valid contract, for the sale of lands devised, is as much a revocation of the will in equity, as a legal conveyance of them would be at law. The estate, from the time of the contract, is considered as the real estate of the vendee. We may, therefore, safely conclude, that, as to the lands described in the contracts of sale, set forth in the answer, and which contracts were subsisting at the testator’s death, there was a revocation of the devise; and the interest in these lands, and in the contracts relating to them, belongs to the residuary legatees under the will. The more embarrassing question arises as to the lot No. 17, mentioned in the pleadings. This lot was part of the lands devised to the plaintiff, and the testator afterwards contracted to sell it to S. C. Baldwin, and received part of the purchase money. At a subsequent period, this contract of sale was rescinded by the parties to it, and the money paid was credited to Baldwin on another transaction, and the testator continued seized of the lot to his death.
The question is, whether this contract of sale was also a revocation of the will _pro tanto, seeing that it was after-wards rescinded.
In Bennett v. Lord Tankerville, (19 Vesey, 170. 178.)
Inoperative conveyances, which have failed for. want of ■ , completion, or from incapacity m the grantee to take, haie, in so.-¡e cases, been held a revocation of a will at law. Lord Kenyon observed, in Shove v. Pincke. (5 Term Rep. 124.) that a conveyance, inadequate for the purpose intended, would amount, in point of law, to a revocation, if it showed an intention to revoke the will. A covehant to make a feoffment, and a letter of attorney to make livery, but no livery made, were held, in Montague v. Jeffereys,(1 Rol. Air. 615.) to be a revocation of a will, as being acts inconsistent with it; and Lord Hardwicke and Lord Ch. J. Alvanley, sitting in equity, have approved of this construction, as those acts imported an intention in the testator to revoke. (3 Atk. 73. 803. 7 Vesey, 370, 371. 373.) So a bargain and sale without enrolment, or a conveyance upon a consideration which happened to fail, or a willnot executed according to the statute, or a disability in the grantee to take, are admitted by the same authorities to amount to a revocation The great question, says Lord Alvanley, has been, whether inchoate acts, inconsistent, shall revoke; but in all the cases it is admitted, that if the act gives power to destroy the will, though the act is not done, yet the will is revoked.
The contract to sell lot No. 17, was binding upon the testator, and was, at the time, a revocation of the wilt as to that lot, for it was a conveyance in equity, and equity would have enforced it. The estate was, in contemplation e of equity, the property of the vendee, and the purchase money the property of the vendor. The will was revoked because the estate was sold, and because the testator, by that contract, intended to revoke it; and why should a sub
Without wishing to lose mj'self in the labyrinth of cases which have arisen on the subject of revocations, and especially after the discouraging picture which Lord Ch. J. jEyre gives of many of the cases, as being “ a heap of heterogeneous instances, depending upon different principles, and huddled together without discrimination,” I will look only into, a few leading authorities, for the illustration of a strict principle of law, that if the testator afterwards conveys away the estate entirely, though he takes it back again by the same instrument, or by a declaration of uses, it is a revocation, because he once parted with the estate. Either an intention to revoke, or an alteration of the estate without such intention, will work a revocation.
In Dister v. Dister, (3 Lev. 108.) the C. B. held- a devise revoked by a recovery to the uses of the devisor, because the estate was altered, though the testator took back the old use. And the same principle was admitted by the C. B. in Darley v. Darley, (3 Wils. 6.) because, said Ch. J. Wilmot, it must be presumed the testator intended to al- . ter his will; yet, in that case, the testator suffered a recovery, which was absurd and useless, and clearly bad, and without any reasonable meaning to be deduced from it •, and Lord Camden, on the strength of the opinion of the C. B., held the recovery a revocation of the devise. (See Lord Loughborough’s remarks on this case, in 2 Vesey,jun. 430.)
In Roper v.Radcliffe, (10 Mod. Rep. 230.) it was conceded by the counsel and the Court, that a devise to a person disabled by law from taking, was a revocation of a prior devise, on the ground of the intention to revoke. Lord Hardwiclce, in Parsons v. Freeman, (3 Atk. 748.) recognised the doctrine of the above cases j and held, that if the testator levied a fine, or enfeoffed a stranger to his own use, it was a revocation, though the testator was in of his old use. He admitted, that this was a prodigiously strong instance of the severity of the rule; and Lord Mansfield observed,(Doug. 722.) that the Earl of Iñncoln’s case, decided on the same principle, was shocking. Still it was admitted to be a rule of law, se0ttled and to be observed. Lord Hardwiclce went at large into the consideration of the same subject, in Sparrow v. Hardcastle, (3 Atk. 798. 7 Term Rep. 416. n. S. C.) and laid down the same rule. The testator, after the devise, conveyed the estate, and took back a declaration of trust,
In Bridges v. the Dutchess of Chandos, (2 Vesey. jun. 417.) Lord Loughborough ably reviews the cases, and acknowledges the rule which has been stated. But the great case Cave v. Holford, (3 Vesey, 650. 7 Term, Rep. 399. 1 Bos. and Pull. 576. S. C.) led to a thorough examination of all the law on the subject, and was discussed with in-^nite ability in the several Courts of law and equity ; and it was m0st authoritatively settled, that where a testator, after the will, conveyed the estate to trustees, in trust for himself, in fee, till marriage, and for default of issue of the marriage, to the use of himself in fee, and he married and died without issue, the conveyance was a revocation of the will both in law and equity. z The doctrine of the case is, that by a conveyance of the estate devised, the will is revoked, because the estate is altered, though the testator take back the same estate, and by the same instrument, or by a declaration of uses ; and though he did not intend to revoke the will. It is revoked upon technical grounds, because the estate has been altered. And Lord Hardwicke said, in Sparrow v. Hardcastle, the rule had been carried so far, that if the testator suffered a recovery for the very purpose of confirming the will, it was still a revocation, for there was not a continuance of the same unaltered interest.
We.see, then, that either a change of the estate, or an act, though nugatory in itself, yet demonstrating an intention to revoke the will, will amount to a revocation ; and that the exception to the general rule, making an alteration of the
Equity, in the government of trust estates, follows the rules and analogy of law as to real estates; and legal and equitable estates, as to these implied revocations, stand on the same ground. I do not see how I can avoid considering the will revoked, as to the lot No. 17, for the estate did not continue in the testator. By the contract of sale, he became seized in trust for the purchaser. The revocation may be placed on the ground, either of an intention to revoke by the sale, or of an alteration of the estate by vesting an equitable title in Baldwin. The rescinding of the contract was an acquisition of the old use and title by the new agreement; and this is not a stronger, nor so strong a case, as some of those we have already referred to, and particularly the case of a conveyance by the testator to the use of himself, or upon a consideration which fails, or by a conveyance which is incomplete and invalid, or to a person who is incompetent to take. If the revocation be placed upon the ground of intention or of alteration, the presumption of intention, or the fact of alteration of the estate, is as manifest here as in the other enumerated instances; and upon principles of equity, the continuance of the estate in the testator did cease by the contract of sale. The contract is to have the same eftect in this Court, upon the question of revocation, as a conveyance at law would have had in a Court of law; and a recovery of the estate, by a surrender of the contract, does not, and cannot restore the will, any more in the one case than a reconveyance in the other. The hard decisions at law, touching these revocations,. have been established and adhered to ever since the time of Edward III., with unshaken firmness, as necessary to preserve the great landmarks erected for the protection and security of real property. I entirely approve of the observation of Lord Kenyon, made in reference to the very doctrine which we have been reviewing, that66 it was sufij=
Decree accordingly.
