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operation of the rule by providing that in three cases, to wit, an executory contract, an incumbrance or mortgage and a conveyance or deed altering the testator's estate, but not wholly divesting his title, the devise shall be revoked only pro tanto. As said by the Chancellor in Adams v. Winne, supra, it left unchanged the existing law "that when the testator had converted real estate, which he had devised as such, into personalty, or had converted the subject of a specific bequest of personal property into real estate, there was a revocation of the will or an ademption of the bequest." The correctness of this doctrine has never been challenged.

The judgment appealed from should be affirmed, with costs to both parties payable out of the estate.

Judgment affirmed.

In re TILLINGHAST.

(Supreme Court of Rhode Island, 1901. 23 R. I. 121, 49 Atl. 634.) Petition for construction of a will. The facts are fully stated in the opinion.

BLODGETT, J. Upon the agreed statement of facts three questions arise under the fifth clause of the will of Ellen M. Perry, late of Bristol, deceased, concerning the disposition of the sum of $8,259.07, the cash balance now in the hands of the executor. The clause in question is as follows:

56 See In re Slater, [1906] 2 Ch. 480; In re Donsett, [1901] 1 Ch. 398. Compare In re Freer, 22 Ch. D. 622 (1882); In re Wood, [1894] 2 Ch. 577.

"Where the law recognizes a power of implied revocation by acts of the testator similar to those which must result in ademption, there may in some cases be no distinction between ademption and revocation; but in this state, where such implied revocation is forbidden by statute, the clauses of a will containing a bequest are not revoked by acts which may operate as an ademption, but remain as the legal declaration of the testator's intention to be carried out unless the execution after his death is impossible; and so a present gift of a part only of a testamentary bequest, or a sale or conveyance to a third party of a part only of property specifically bequeathed, does not prevent the execution of the testator's intention as to the remainder, and the ademption is not total, but pro tanto." Hamersley, J., in Jacobs v. Button, 79 Conn. 360, 365, 65 Atl. 150, 152 (1906).

Where real estate devised by a will is conveyed away by the testator but before his death is reconveyed to him, there is no ademption under modern statutes allowing after-acquired realty to pass by will. Woolery v. Woolery, 48 Ind. 523 (1874). See, also, sections XXIII, XXIV, of the Wills Act in the Appendix, post, p. 765. But see Phillippe v. Clevenger, ante, p. 290.

"A total ademption by acts of a testator occurs in two cases only: (1) When he gives in his lifetime to a legatee what he has left him in his will; or (2) when before his death he so deals with the subject of the bequest as to render it impossible to effect the transfer or payment which the will directs." Baldwin, J., in Connecticut T. & S. Deposit Co. v. Chase, 75 Conn. 683, 690, 55 Atl. 171, 174 (1903).

That the testator has agreed with a corporation to take its note for some of its corporate stock bequeathed in his will does not work an ademption, where the testator dies before the arrangement is carried out, is held in In re Frahm's Estate, Roddewig v. Steffen, 120 Iowa, 85, 94 N. W. 444 (1903).

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"Fifth. Whereas I am or may be entitled to a certain interest in the estate of my mother, Ellen M. Dabney, deceased, which is now in the hands of the Fidelity Insurance, Trust and Safe Deposit Company, Now I give, devise, and bequeath the same to the Fidelity Insurance, Trust and Safe Deposit Company, in trust, to keep the same invested, and to pay the net income thereof to my husband, Raymond H. Perry, for the term of his natural life, and upon his death then to pay the income thereof to his daughter, Frances Raymond Perry, for the term of her natural life, and upon her death then to hold the said estate in trust upon the same terms of trust as are above provided for in the fourth item hereof for the estate over which I have a power of appointment under the will of my said father, Charles H. Dabney." These questions are:

(1) Does the language of said fifth clause constitute a specific legacy?

(2) If so, has such legacy been in whole or in part adeemed?

(3) Does the share of Mrs. Perry in the estate of her sister, Frances E. Rhett, come within the provisions of said fifth clause of the will of Ellen M. Dabney?

1. We are of the opinion that the bequest under consideration is a specific bequest. The language used is substantially similar to the language used by the court in Dean v. Rounds, 18 R. I. 437, 27 Atl. 515, 28 Atl. 802, as constituting a specific bequest. It absolutely appropriates a fund clearly defined, and for a long time invested in certain securities easily capable of identification, but whose exact cash value was not known, to one definite object. It was, therefore, an appropriation of the fund itself, rather than an attempt to measure the gift by the amount of an uncertain sum. Towle v. Swasey, 106 Mass. 106; Bethune v. Kennedy, 1 Myl. & Cr. 114; Stephenson v. Dowson, 3 Beav. 349; Shuttleworth v. Greaves, 4 Myl. & Cr. 37.

2. The will of Ellen M. Perry was executed on July 28, 1898, and she died on May 28, 1899. On May 11, 1899, she executed the following receipt to the trustee under Mrs. Dabney's will, as follows:

"Received of the Fidelity Insurance, Trust and Safe Deposit Company, trustee, the sum of eleven thousand five hundred and fifty-eight and 92/100 dollars in kind as set forth in the schedule hereunto annexed, the same being in full of principal and income awarded to me as per the adjudication filed in the Orphans' Court, December 30th, 1898, upon the account of the said The Fidelity Insurance and Safe Deposit Company, trustee, as aforesaid. [Signed] Ellen M. Perry.

"Witnesses at signing:

"Nellie De Wolf Archer.
"Abram O. Powell."

It is agreed that all the securities therein referred to were then delivered to Mrs. Perry, except the two mortgages on property in Philadelphia, which were duly assigned to her by the trust company, but which she directed the trust company to retain in its possession and to

proceed to collect for her account. It is conceded, too, that with the exception of these mortgages all the securities enumerated in this schedule were converted by Mrs. Perry to her own uses in her lifetime. We are consequently of the opinion that the legacy was thereby pro tanto adeemed, since the specific items of the bequest no longer exist.

In Kenaday v. Sinnott, 179 U. S. 606, 617, 21 Sup. Ct. 233, 237, 45 L. Ed. 339, decided in 1900, Chief Justice Fuller says: "The satisfaction of a general legacy depends on the intention of the testator as inferred from his acts, but the ademption of a specific legacy is effected by the extinction of the thing or fund bequeathed and the intention that the legacy should fail is presumed."

In Tomlinson v. Bury, 145 Mass. 347, 14 N. E. 137, 140, 1 Am. St. Rep. 464, decided in 1887, the court say:

"A specific legacy is one which separates and distinguishes the property bequeathed from the other property of the testator so that it can be identified. It can only be satisfied by the thing bequeathed; if that has no existence when the bequest would otherwise become operative, the legacy has no effect. If the testator subsequently parts with the property, even if he exchanges it for other property or purchases other property with the proceeds, the legatee has no claim on the estate for the value of his legacy. The legacy is adeemed by the act of the testator."

This doctrine has long been well settled. Indeed, the rule as to ademption was laid down very clearly by Lord Chancellor Thurlow in Humphreys v. Humphreys, 2 Cox, 185, decided in 1789, as follows: "That the only rule to be adhered to was to see whether the subject of the specific bequest remained in specie at the time of the testator's death, for if it did not, then there must be an end of the bequest, and that the idea of discussing what were the particular motives and intention of the testator in each case, in destroying the subject of the bequest, would be productive of endless uncertainty and confusion." And see Stanley v. Potter, 2 Cox, 180.

As to the two mortgages aforesaid, we are of the opinion that the mere act of transferring them to her own name was not an ademption of them; for it is conceded that they were in specie at the time of her death, and the exact amount of their proceeds is clearly known and is held by the executor as a distinct fund. Lee v. Lee, 27 L. J. Ch. 824; Moore v. Moore, 29 Beav. 496; Dingwell v. Askew, 1 Cox, 427; Clough v. Clough, 3 Myl. & K. 296; Ashburner v. MacGuire, 2 Bro. C. C. 108; Barker v. Rayner, 5 Madd. 217, affirmed in 2 Russ. 122; Basan v. Brandon, 8 Sim. 171.

It is true that these securities are described as being in the hands of the trust company; but in Prendergast v. Walsh, 58 N. J. Eq. 149, 42 Atl. 1049, decided in 1899, which was also a case of ademption, the Vice Chancellor held that "the place of deposit was merely used as descriptive of the thing bequeathed. It was used to identify the particu

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lar money given, and it is entirely settled that where the place is merely descriptive the removal of the thing to another place is immaterial."

And, finally, we are of the opinion that the terms of the fifth clause, creating this specific legacy, should be strictly limited to the interest which Mrs. Perry had in the estate of her mother, Mrs. Dabney, without including the interest which came to Mrs. Perry as the heir of her sister, Mrs. Rhett.

A decree may be entered in accordance with this opinion.57

CARMICHAEL v. LATHROP.

(Supreme Court of Michigan, 1896. 108 Mich. 473, 66 N. W. 350,
32 L. R. A. 232.)

HOOKER, J. The will of Henry P. Pulling was executed in June, 1872. After giving his wife the use and enjoyment of all of his property during life, in lieu of dower, it provided that

"Second. All the remainder of the estate of, in, and to my said property, both real and personal, subject to the said life estate of my said. wife, I give, devise, and bequeath to my three daughters, Ada M. Lathrop, of Detroit, Michigan, Emily Lloyd, of Albany, New York, and Marilla B. Carmichael, of Amsterdam, New York, and to their heirs forever, share and share alike. * *

*

"Third. I hereby authorize and empower my hereinafter named executors to sell and convey in fee simple absolute, in their discretion, any portion or all of my real estate, with a view of otherwise invest

57 In Peirce, Petitioner, 25 R. I. 34, 54 Atl. 588 (1903), a bequest of stock in the Rhode Island National Bank was held to pass stock in the United National Bank, which latter bank was a reorganization and consolidation of the former bank and three others. The court said: "There was no ademption of the legacy of the stock in the Rhode Island National Bank, because, though in form a sale, the stock was not in fact sold, but exchanged." But see In re Lane, 14 Ch. D. 856 (1880).

"No doubt a bequest may be so worded as to show that the subject-matter was to pass, whatever the condition with respect to investment, or otherwise, in which it might be found at the testator's death. And what is the proper effect to be given to the gift of a sum of money mentioned or described as invested in a particular way depends upon the question whether, according to the true construction of the will, it must be taken that the testator intended the legatee to have the money however it might be invested, or, in other words, whether the condition of the subject in reference to investment was the governing part of the description of the subject-matter of the bequest." Joyce, J., in In re Slater, [1906] 2 Ch. 480, 484. See Prendergast v. Walsh, 58 N. J. Eq. 149, 42 Atl. 1049 (1899); In re Bradley's Will, 73 Vt. 253, 50 Atl. 1072 (1901); Nusly v. Curtis, 36 Colo. 464, 85 Pac. 846, 7 L. R. A. (N. S.) 592, 118 Am. St. Rep. 113 (1906).

In In re Gillins, [1909] 1 Ch. 345, the will gave a legatee 25 shares of stock in a certain corporation. At the date of the will shares in that corporation were £50 shares with £5 credited as paid up. At the death of the testator the shares of the corporation were £10 shares with £1 credited as paid up. It was held that the legacy was general, and so only 25 £10 shares passed to the legatee.

ing the proceeds thereof, or to change my present securities into real investments. But such change is to be done with the consent of my wife, and the approval of the probate court or a court of chancery. And this power and authority of so selling and conveying in fee simple absolute my real estate is hereby made notwithstanding the bequests which are given to my daughters, which bequests are hereby made subservient to said power. And I do hereby direct my executors to invest all my moneys and property, and the avails of all real estate so sold, in first-class, unincumbered real estate mortgages, or in United States bonds or Michigan state bonds, said securities to be held and retained by them, and the income thereof paid quarter yearly, or, at the furthest, every half year, by them, to my said wife, until her decease, and on such death my estate is to be closed up and distributed as provided for in the second clause of this my will.

"And, lastly, I do hereby appoint my brother Abraham C. Pulling, of New York City, my brother-in-law William P. Bridgman, of Detroit, and my son-in-law Joseph Lathrop, of Detroit, to be the executors of this my last will and testament, hereby revoking all former wills by me made."

Mr. Pulling died in July, 1890, and the will was probated August 19, 1890. Joseph Lathrop qualified as executor. The probate records show that at the time of the testator's death he was seised in fee of real estate to the value of $65,000, that there was due to him upon land contracts $45,000, that he owned other personal property to the amount of $30,000, and that there were no debts or claims against the estate. Previous to the death of the testator, he conveyed to each of the defendants a parcel of real estate; that conveyed to Mrs. Lloyd being alleged to be worth $14,000, and that received by Mrs. Lathrop said to be worth $10,000. There is evidence tending to show that he intended to repair the house upon Mrs. Lathrop's property, thereby making the gift to her equal to that of Mrs. Lloyd, and that he intended to do as well by his other daughter, the complainant; but her husband became embarrassed, and finally went to state's prison, and she never received a home, as the others had. Her father, however, gave to her money from time to time, for her support, which aggregated $1,100. Soon after the probate of the will, litigation arose between the widow and children, which was finally adjusted, and the property was divided, the parties executing the necessary deeds and other instruments to carry it into effect. The accounts of Lathrop, the executor, were settled, and he was discharged. There is now some land held in common by the three sisters.

The complainant files the bill in this cause, alleging that the lands conveyed by the testator to her two sisters should be treated as ademptions of their respective legacies, and that they should be required to account to her for her share thereof. She alleges that her father so intended, and that they recognized the justice thereof, and promised to see that she received the same, and, relying upon such promises, she

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