THE ADEMPTION, CUMULATION, AND ABATEMENT OF LEGACIES.
No care is too great to give a precise expression to a testator’s
will, and difficulties enough often arise after every care has been
taken to avoid misconstruction, and therefore there cannot be too much
care spent in endeavouring to ascertain, as well as to express, the
meaning of a testament. But there are frequently other circumstances
which supervene to alter, enlarge, or altogether obviate the intentions
of a testator for the benefit of his relatives, without possibly any
cognizance on his part. In some instances, the legacies which he
intended to give are, either by his own voluntary or inadvertent act,
or by the influence of circumstances, altogether taken away and lost
to the parties whom he nominates legatees; and this is called the
_ademption_ of legacies. In other cases, the amounts of the legacies
specified become, through the effect of other circumstances, increased,
and this is called the _cumulation_ of legacies. In others, again the
amounts, instead of being increased or destroyed, are decreased; and
this is called the _abatement_ of legacies.
THE ADEMPTION OF LEGACIES.
This ademption may be either express or implied; for the testator may
not only in express terms revoke a legacy which he had previously
given, but his intention to do so may be indicated by particular acts.
Thus, where a father gives to one of his children, a daughter, a legacy
of a certain amount, and afterwards gives her that amount, or a larger
one, as a marriage portion; or if a son, gives him the same amount or
a larger one, to establish him in business, or to be of benefit to
him for life in any other important way,--in both these cases, the
legacies are considered to be adeemed or lost to the parties. But this
ademption will not be implied, if the bequest is to come out of the
residue, nor if the provision given by the father in his life-time is
loaded with any contingency; as repayment, or the performance of any
particular covenant, as a consideration for the provision for them;
it is in a manner bought by the recipient, and it would be unjust to
deprive him or her of a free gift, as a legacy is always construed to
be by such a purchase. Neither is the legacy lost if the converse of
this be the case; that is, if the legacy itself, and not the provision,
be loaded with a limitation or contingency; for then it is evident
that the legacy and the provision are not identical, which they must
evidently be for the former to be lost. Nor is it adeemed if the
testator be a stranger, or the uncle of the legatee, or if the latter
be an illegitimate child, unless the father shall openly have assumed
the office and performed the duties of a parent to it. The principle of
_identity_ appears to be the governing rule; for as the law does not
allow the other legatees to be defrauded by a sum being paid to a party
under a will, which had been previously paid by the act of the testator
himself, so it must have clear evidence that the testator intended the
gift to supersede the legacy, before it will suffer the legatee to
be deprived of his right, simply because he appears to have enjoyed
more favour at the hands of the testator than was at first supposed.
Ademption, therefore, may always be resisted by evidence.
But a legacy is evidently adeemed when there is a decided impossibility
of paying it; as when the whole of the testator’s assets have been
swallowed up by his debts, which always precede legacies in their
right. When the object itself is lost which is made the subject of
a legacy, the latter is of course adeemed, as when a man leaves a
particular estate as a specific legacy without stating its value,
and he disposes of that estate before his death. Or if he leave the
furniture of a particular house, and he leave that house, and sell
the furniture before his death. But the removal of the whole of the
furniture to another house would be only an implied ademption, and
might be resisted by evidence of the testator’s intention to give that
particular furniture, wherever it might be, to the legatee. The bequest
of a debt to a debtor, of which debt the testator compels payment after
making his will, would be an ademption of the legacy; but the voluntary
payment of the debt before the death of the testator, would not, in all
probability, deprive the legatee of the amount which he had paid; the
ademption would then depend there, as it does, indeed, in all cases,
upon the intention of the testator, where circumstances do not offer an
insuperable bar to the fulfilment, such as we have stated above. The
object, therefore, should be to get that intention ascertained.
THE CUMULATION OF LEGACIES.
Cumulation, like ademption, very often depends upon the intention
of the testator, for it may be his desire to increase a legacy, or
he may, through inadvertence, state it twice over. For instance,
where a specific thing, as an estate, a horse, or a house, is stated
twice over, there is clearly no cumulation. When a like quantity is
bequeathed to the same legatee twice in the same instrument--as the
will, or stated in the will, and repeated in the codicil, unless the
word, “another,” or something equivalent to it, be annexed. So, also, a
subsequent statement of a certain sum, as an unconditional legacy, when
it had been previously stated as a conditional one, is no cumulation.
When, however, two unequal quantities are stated for the same legatee,
though they be in the same instrument, they are two legacies, and not
one. Such is the case, also, when two equal sums are given by different
instruments; and when both legacies are expressed as being given for
the same cause, they are not cumulative; it is too apparently an
inadvertence. But when two different reasons are assigned they are two
legacies; or when the legacies are of different natures, though of the
same amount, as one a sum of money, and the other an annuity, or two
annuities of similar amount, but differently paid, as one half-yearly,
and the other quarterly, or similarly paid, but out of different
estates, as one out of real, and the other out of personal, estate.
Extrinsic circumstances will also cumulate legacies, though stated
of the same amount; as, when after the date of the will, but before
the date of the codicil, the testator has received an increase of
fortune, for it is then evident that he intended to dispose of the
accession. Indeed other, very slight, circumstances are often admitted
as evidences of cumulation.
LEGACIES IN SATISFACTION OF DEBT.
Sometimes it happens that legacies, instead of being purely such, are
mere satisfactions of debt; and on this point, as on the two preceding,
the intention of the testator is the guide of judgment. In general, the
legacy of a debtor to his creditor, when the bequest is equal in amount
to the debt, or greater, is considered as a payment of the obligation.
But many circumstances may occur to obviate this construction, as if
the legacy be left conditionally; for a man has no right to take an
uncertain advantage as a recompense for a certain claim. Nor when the
advantage is postponed whilst the claim is present; as when the legacy
is to be paid at a future period, while the debt is due immediately on
the death of the testator, though the postponement be for ever so short
a period. Nor unless the legacy be in every way equal in advantage
to the debt. Nor when an express injunction is laid on the executor
for the payment of debts. Nor if the debt be contracted after the
date of the will, for then the satisfaction of it by the legacy could
not have been contemplated. Nor when the amount of the debt is open
and uncertain, as when there has been a running account between the
testator and legatee, which is unclosed at the death of the former, for
then he could not positively know of the debt.
In this instance, however, as in others, the law is favourable in its
construction of kindly intentions, and parol evidence is accordingly
admissible to refute the construction unfavourable to the legatee’s
interests. But, just as well as considerate, it decrees that a legacy
shall be considered as satisfaction of a debt in all cases where there
is a deficiency of assets.
On the contrary part, in order to secure the interests of both parties,
it is held that a legacy left to a debtor is to be considered as a
complete or partial satisfaction of his claim, for he is conceived to
have goods in hand for the payment of so much of the amount of his
debt. Through the influence of the same principle, money or goods
delivered or lent to a legatee, are considered as a _pro tanto_ payment
of his claim. Should the debt itself be bequeathed, it is a pure
legacy, if there are sufficient assets to satisfy all the other debts;
but if not, then this debt is considered as part of the assets, and the
legatee would share the benefit in proportion.
ABATEMENT AND REFUNDING OF LEGACIES.
In the event of there not being sufficient assets to satisfy the
debts of the testator, all the legacies under his will are subject
to abatement or reduction to pay the creditors; but in the event of
there being sufficient to satisfy the debts and specific legacies,
by adeeming the several legacies, they are adeemed or abated in
proportion; and should the executor have paid certain of the legacies,
or even all of them, and afterwards find debts which he was bound to
satisfy, he can compel the legatees to refund in proportion to the
amount of their bequests, until the claims are all paid. It is usual
to take an agreement to refund if necessary; but whether this is done
or not, the power of the executor remains as long as the claims of the
creditors can be enforced.