Select Cases and Other Authorities on the Law of Property

In 2 Redfield Wills, 439, the doctrine of ademption by advancements is stated as applicable to general legacies.

In Langdon v. Astor's Ex'rs, 16 N. Y. 9, the doctrine of ademption by advancements was discussed and applied, but the learned judge who delivered the opinion of the court (Denio, C. J.) remarked (page 33): "In what I shall have to say upon this question, I shall assume that the legacy in question is not specific, but pecuniary and general." This remark would have been unnecessary, and, indeed, inappropriate, had it been supposed that both classes of legacies stood upon the same ground in this respect.

If, as before observed, a specific legacy is not adeemed by advancements, it follows, as we think, quite conclusively, that a specific devise of land is not adeemed by advancement. Moreover, we are not advised of any case in which the doctrine of ademption by advancement has been applied to devises of real estate.

In the case of Davys v. Boucher, 3 Y. & Col. Ex. 397, decided as late as 1839, it was said by Alderson, B., that as far as his researches had extended, he did not find any instance of this principle having been extended to devises of real estate.

In Williams Ex'rs, 1202, the author says: "It should seem also, that the principle does not extend to devises of real estate," referring to the case in 3 Y. & Col. So, in 2 Red. Wills, 441, it is said, refer"the principle of ademption, by a subsequent portion, has not been applied to devises of real estate."

ring to the same case, that

In the case of Clark v. Jetton, 5 Sneed, 229, 236, it is said by the court, that "this doctrine of ademption does not apply to real estate."

These are all the authorities upon the point that have come under our notice. The negative authorities are meagre, and, of themselves, inconclusive. But the absence of affirmative authority for the application of the doctrine to devises of real estate is conclusive that it is not applicable to them.

But the counsel for the appellees, in a well prepared and able brief, has suggested that Baron Alderson in supposing, as he did in the case cited from 3 Y. & Col., supra, that there was no case in which the principle had been applied to devises of real estate, was mistaken. Several cases are cited, in which it is claimed that the principle was thus applied. We proceed to examine them.

The first is that of Williams v. Duke of Bolton, 1 Dick. 405; 4 Drury & Warren, 225. It appears to have been decided in the case cited, that a gift of a rent-charge might be a satisfaction of a sum in gross charged upon land. This, however, is not in point. A sum of money charged upon land is not the land itself. The money, the subject of the legacy, is personal, and when it is paid the land is freed. The charging of it upon land is only a mode of securing its payment. These observations apply also to the cases of Hartopp v. Hartopp, 17 Ves. 185, and Brudenell v. Boughton, 2 Atk. 261.

The case of Lechmere v. Earl of Carlisle, 3 P. Wms. 211, was this: There was a covenant to settle lands of a certain value, and a subsequent purchase by the covenantor of lands of a smaller value, which were, at the covenantor's death, undisposed of, and which went by descent to the covenantee. It was held, that the land so purchased was a satisfaction pro tanto. We do not regard this case as at all in point. A covenant to settle lands is totally dissimilar to a devise of lands; so, also, is the descent of lands to one a different thing from a conveyance of it to him. A similar case was that of Wilcocks v.

Wilcocks, 2 Vern. part 2, 528.

The cases of Rosewell v. Bennet, 3 Atk. 77, and Kirk v. Eddowes, 3 Hare, 509, are no further in point than to show that the doctrine of ademption by advancement is not based upon the theory of a revocation of a will.

The case of Bellasis v. Uthwatt, 1 Atk. 497, is cited for the following observations of the Lord Chancellor: "In respect to the doctrine of satisfactions for money before due, the thing given in satisfaction must be of the same nature, and attended with the same certainty as the thing in lieu of which it is given, and land is not to be taken in satisfaction for money, nor money for land. It is true, here they are both of the same nature, both personal estates," &c.

This extract shows that the Chancellor was speaking of a case where a bequest was to be taken in satisfaction of money before due, and not where something advanced was to be taken as an ademption of the bequest. Besides this, both were personal.

The remark put by way of illustration, that "land is not to be taken in satisfaction for money, nor money for land," by no means establishes the proposition, nor do we think it conveys the idea that the doctrine of ademption, as applied to general legacies, applies to devises of land.

We have thus considered the authorities cited to show that the doctrine has been applied to devises of land. In our opinion, they do not show it.

From these considerations, we conclude that the doctrine of the ademption of legacies, by advancement to the legatee by the testator in his lifetime, has no application to specific legacies or devises of real estate.

It follows that the appellant's title to the land in controversy, under the will, is good, and that a new trial should have been granted.

The judgment below is reversed, with costs, and the cause remanded for a new trial.1

1 "As far as my researches have extended, I do not find any instance of this principle having been extended to devises of real estate, and I think so to extend it would be to repeal that section of the Statute of Frauds which applies to the revocation of wills of real estate." - Per ALDERSON, B., in Davys v. Boucher, 3 Y. & C. Ex. 397, 411 (1839).

See, accord., Burnham v. Comfort, 108 N. Y. 535 (1888). 5 Rand. 577 (1827), it was held that a legacy of slave A.

But in Jones v. Mason, might be adeemed by a