Zeiter v. Zeiter

The opinion of the Court was delivered by Gibson, C. J. —An advancement subsequent to the will, by a parent or person in loco parentis, is considered an ademption, as in Biggtone v. Grubb, 2 Atk. 48. The act of advancement, as well as the presumption from it, like every other presumption of fact, may be rebutted by proof. So an executor to whom a legacy is given, may rebut the trust of the residue implied from that circumstance for the next of kin; and the latter may again encounter his proof by proof ejusdem generis. But could the fact of advancement be proved by the declarations of the testator ? When contemporaneous with the will, they seem to have always been admissible; but it was long a contested point, whether his conversations at other times were so. It seems to be at length settled that his parol declarations, both previous and subsequent to the will, are to be admitted under proper qualifications, to rebut equities or implied trusts; the difference in respect to these being that declarations at the making of the will are of greater weight than those made subsequently, and the precedent declarations are of less account still. The result of the cases are given in 2 Roper on Legacies 576. But can his declarations be let in to rebut an express bequest ? That would be to contradict the will, and cannot be done. An ademption, by subsequent advancement, may be shown by parol, and why not by the testator’s declarations? In Rosewell v. Bennet, 3 Atk. 77, the declaration of a father who had allowed bis executors to lay out 300 pounds in putting out his son apprentice, but who had subsequently laid out 200 pounds in putting him as a clerk to a person in the navy office, were admitted to show that this advancement was an ademption. But as the proof to rebut the presumption of ademption should be clear, so should the proof to raise it. Now, it did not appear from the offer in the case before us, whether the transaction between the testator and his son, which is claimed to be an advancement, occurred before or after the making of the will; and if before, it is pretty clear that it could not operate as an ademption of a legacy not then given. The evidence offered was, that the testator had sold a plantation to his son, the defendant, and a legatee, and taken the bonds on which suit is brought for the price of it; that about the time he made his will, he remitted, by way of advancement, a moiety of the purchase money, which he intended to be the defendant’s share of his estate; and that the son had declared that the will allowed him two shares, though the children ought all to be made equal, and that to make [215] them so would require his advancement to be brought in. Now, it is what the father did, and not what the son thought, that is material ; for if the arrangement were not posterior to the will, the evidence proposed would go to make it mean something very different from what it purports to mean. I was at first inclined to think the evidence admissible, with a direction to disregard it if the jury should believe the transaction preceded the will; but the plaintiffs themselves did not pretend the fact was sO. They offered it as having occurred about the time; and to have let it go to the jury, would have been to insure the decision of it in a particular way, at all events, from their love of equality. It wag therefore properly rejected. Judgment affirmed.