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