CHAPTER VII.

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.

The hand-book of the law of legacies containing a statement of the nature of legacies, and the accidents to which they are subjects; together with the rights of legatees, and the causes and manner of the ademption, cumulation, and abatement of their bequests · 第 7 / 8 章