King v. . Sellers

BeogdeN, J. What constitutes tbe ademption of a legacy under tbe law of tbis State? Tbe legacy in controversy was a specific legacy. Ademption, in law, denotes tbe destruction, revocation or cancellation of a legacy in accordance witb tbe intention of tbe testator and results either from express revocation or is implied from acts done by tbe testator in bis lifetime, evincing an intention to revoke or cancel tbe legacy. Tbe question was considered in Starbuck v. Starbuck, 93 N. C., 183, and tbe conclusion of tbe Court tbus stated: “Specific legacies are said to be adeemed, wben in tbe lifetime of tbe testator, tbe particular thing bequeathed is lost, destroyed, or disposed of, or it is changed in substance or form, so that it does not remain at tbe time tbe will goes into effect in specie, to pass to tbe legatees. If tbe subject-matter of such legacies ceases to belong to tbe testator, or is so changed as that it cannot be identified as tbe same subject-matter, during bis lifetime, then they are adeemed — gone and never become operative.” Ademption may result, as a matter of law, wben a testator bequeaths tbe legacy for a particular purpose and thereafter gives tbe legatee tbe identical sum of money for tbe identical purpose. If a testator stands in loco parentis to tbe legatee and subsequently makes payments to tbe legatee equal to or even less than tbe legacy, such payments are prima facie a complete satisfaction or satisfaction pro tanto. But if such relationship does not exist, tbe payments do not prima facie relate to tbe .prior legacy. In a gift of a general legacy, without reference to any particular fund to satisfy it, tbe intention of tbe testator is the controlling factor of ademption. Parol evidence of such intention is competent. A subsequent sale of property specifically devised or bequeathed, nothing else appearing, constitutes an ademption. Snowden v. Banks, 31 N. C., 373; Nooe v. Vannoy, 59 N. C., 185; Grogan v. Ashe, 156 N. C., 287; Perry v. Perry, 175 N. C., 141. Tbe test of ademption is such a change in tbe subject-matter of tbe legacy as to destroy its identity. In applying tbe test it is well to bear in mind tbe wise utterance of Pearson, C. J., in Nooe v. Vannoy, 59 N. C., 185: “But it is unusual for a father to adeem, in tbis manner, legacies given to children and exclude them from bis contemplated bounty, wben there has been no change of circumstances; and for tbis reason tbe Court is slow to adopt tbe conclusion that it is an ademption and will seek,. anxiously, for some mode of explanation.” *536 In the Vannoy case the testator bequeathed, “the proceeds of the sale of my town property in the town of Wilkesboro.” Thereafter the testator sold the property to Nooe, and afterwards invested the proceeds and took as security the notes of other persons. The inventory of the estate disclosed the existence of these notes. The opinion of the Court proceeds: “In our case comprehensive words of description are used, and at the date of the deed to the plaintiff, Nooe, 'the proceeds of the sale’ were in the hands of the testator as a security, for which he held note of the said Nooe, the testator at the time received the proceeds of sale in money, and if he afterwards invested it, and took as security the notes of other persons, it was not an ademption, because the corpus, or thing itself was not changed, and a second or .third collection and reinvestment on other securities, would not change it.” The Vannoy case is cited with approval by the Court of Appeals of Kentucky in Durham’s Admr. v. Clay, 134 S. W., 153. In discussing the principle the Court. said: “As stated, where a legacy of personal property is changed, it does not operate as an ademption so long as it remains in specie, and the change is not radical.” The West Virginia Court in Cornwell v. Mt. Morris M. E. Church, 80 S. E., 148, considered the question upon a state of facts disclosing that the testatrix set aside a fund of $1,000 described in the will as “coal money.” Thereafter in her lifetime the money was invested in municipal bonds which were left in the bank, marked as the property of the testatrix. The Court said: “Thus the form of the fund was changed from a deposit in the bank to an investment in bonds, and, on this change of form, there is based a claim of ademption, or destruction of the legacy, but the authorities do not sustain this position. The fund had not ceased to exist, nor in any way been destroyed or lost at .the date of the death of the testatrix. It remained in an altered form, and the legacy had not been satisfied by any advancement in her lifetime. That such a change does not work an ademption of the legacy is well settled by authority.” Applying these principles of law to the facts disclosed in the record, it appears that the identity of $3,500 of this fund has been preserved. The legacy was created in the proceeds of a note secured by a deed of trust upon real estate. It does not appear that the testator was instrumental in collecting this note,, but when the note was paid the money was not commingled with the general estate of the testator, but, as we interpret the record, segregated as a special fund and $3,500 thereof reinvested in a note secured by a deed of trust on real estate, and therefore being the identical form of investment that existed at the time the legacy was created. Of course, the balance of the $4,000 fund, not rein *537 vested, bas apparently been merged in tbe general estate of tbe testator, losing its identity and thus adeemed or lost. We are therefore of tbe opinion, and so bold, that upon tbe facts as presented, there bas been no ademption of that part of tbe fund represented by tbe Pescbau note, and tbe judgment of tbe court sustaining tbe demurrer is Eeversed.