Wallace v. Du Bois

Robinson, J., delivered the opinion of the Court. This is a question in regard to ademption or satisfaction of a legacy. The testator gave to his son, Lindley, a legacy of six thousand dollars, and to each of his other children he also gave legacies, except Burgwyn, who had received already, the testator says, more than his share of the estate. [159] The will was made in 1879, and Lindley died in 1883, in the life-time of his father, leaving a daughter, the appellant, his only child and heir-at-law. The testator died in 1884, without revoking the bequest to Lindley, and among his papers were found three promissory notes of Lindley, dated February 10th, April 26th, and July 20th, 1882, respectively, amounting in the aggregate to two thousand dollars — also a promissory note dated August 2nd, 1880, for $187.30 — also accounts of the funeral expenses of both Lindley and his wife, all of which were paid by the testator. These notes and accounts it is contended, are to be considered as an ademption or satisfaction pro tanto of the legacy to Lindley. The law in regard to the ademption of legacies is quite Avell settled, and the only difficulty lies in its application to the facts of each particular case. Where a father gives a legacy to a child without stating any particular purpose for which it is given, the legacy is in itself regarded as a portion of the estate intended for such child. And if the testator afterwards makes an advancement to such child on his marriage or upon going into business, the money thus advanced Avill be presumed to be in payment or satisfaction of the legacy, either pro tanto or in full, as the money advanced may be equal to or less than the legacy. This presumption is founded on the equitable principle that a father in making a distribution of his property by will among his children, means to give to each the amount which he ought to have, in vieAv of the claims of all upon his bounty; and if he afterwards deems it proper to make an ad\Tancement to one or more of them, the amount thus advanced ought to be deducted from the portion of the child benefited. It is a rule adopted by Courts of equity to prevent a child from getting a double portion, an inequality which it is but fair to presume the testator did not intend. Shudal vs. Jekyll, 2 Atk., 518; Ex parte Pye, 18 [160] Ves., 150; Suisse vs. Lowther, 2 Hare, 424; Pym vs. Lockyer, 5 My. & Cr., 34; Kirk vs. Eddowes, 3 Hare,. 509; Hopwood vs. Hopwood, 7 House of Lords’ Cases, 726. And if the money is advanced or paid by the father under such circumstances as not to raise a presumption of satisfaction of the legacy, parol evidence may be offered to. show that such was his intention. Now in this case the three promissory notes, amounting to two thousand dollars, are ■ ordinary, promissory notes, and upon their face import merely an indebtedness on the part of Lindley to the testator. But the proof shows they were given for money advanced by his father for the purpose of setting' him, Lindley, up in business, and further* that the money thus advanced was intended by the father* and so understood by Lindley, to be in part payment of the legacy. And this being so, the amount of these notes, must be deducted from the legacy. As to the note, however, dated August 2nd, 1880, for $187.30, there is nothing on its face-, nor is there a particle of proof, to show that it was given for money advanced on account of the legacy. It bears date eighteen months before Lindley started in business, and in the absence of proof to the contrary it must be regarded merely as a debt due by him to. his father. And so as to the accounts for the funeral expenses of Lindley and his wife. These accounts were paid, it is true, by the testator, but the evidence does not show that they were paid by him on account or in part satisfaction of the legacy! Mrs. Du Bois says, it was her father’s intention to deduct them from the legacy — that he often spoke about it. But what he said, and at what time the declarations were made, does not appear. And besides, upon cross-examination, her father, she said, always expected to be paid the amount advanced by him in pay- ' ment of the funeral expenses. If this be so — if he considered it an indebtedness and not a gift, the payment by him would not operate as an ademption pro tanto.oí the [161] legacy. Eor the distinction between a loan and a gift is the right reserved by the father to demand payment of the money — if this right be reserved, it is a loan and not a gift. Harley vs. Harley, el al., 47 Md., 340. (Decided 10th March, 1880.) Bindley having died in the life-time of the testator, the legacy to him did not, by operation of the Code, lapse, but passed directly to his daughter. Art. 93, sec. 304. It constituted no part of the assets in the hands of his executor or administrator. His daughter took it by force of the statute. This was expressly decided in Glenn vs. Belt, 7 G.& J, 360 : “The time of the transfer,” says the Court in that case, “is the death of the testator, and as the legatee died before the testator he would not be the person meant as the object of the statutory transfer. But the law refers to such persons then in esse, entitled by law to the distribution of the legatee’s estate in case of intestacy — that is, his representatives.” So here, the legatee having died in the life-time of the testator, the daughter of the legatee takes the legacy directly from the testator. She takes unaffected by the debts of her father, the deceased legatee. His creditors have no right to claim the payment of their debts out of such a legacy. Eor these reasons the decree below will be affirmed in part, and reversed in part, and the cause remanded. Decree affirmed in part, and reversed in part, and cause remanded,.