
    Harriet Burnham, Resp’t, v. Oliver T. Comfort, App’lt.
    
    
      (Court of Appeals,
    
    
      Filed February 28, 1888.)
    
    1. Ademption—Definition of.
    Ademption is the extinction or satisfaction of a legacy by some act of a testator which is equivalent to a revocation of the bequest, or indicates the intention to revoke; the rule is applied where the testator is a parent of the legatee or stands in loco parentis.
    
    
      2. Same—Applies to legacies of personal estate—Hot to legacies of realty—3 Rev. Stat (7th ed.) 2286-2237, §§ 42, 47 and 48
    The rule of ademption is predicable of legacies of personal estate, and is-not applicable to devises of realty. See 3 Rev. Stat (Bank’s 7th ed). 2286-2287, §§ 42, 47 and 48.
    3. Same—What will not act as satisfaction of legacy of realty.
    The plaintiff received from the testator, her father, a sum of money for which she gave a writing in the following form “ Received of Oliver. Comfort five hundred dollars, which money I receive as my part of my father’s estate up to this time, and all such other property as he may accumulate up to his decease. In witness whereof I have hereunto subscribed my name.” By testator’s w 11 made prior to that date, the plaintiff was given the remainder in certain lands after a life estate, and the residuary estate was given to the defendant. The testator died some fifteen years after the said receipt was taken, having made no alteration of his will. Held, that a satisfaction of the devise in the will to the daughter was not effected. Earl and Peckham, JJ., dissenting.
    Appeal from a judgment of the supreme court general term, fourth department, affirming a judgment in favor of plaintiff entered tipon the trial of this action without a, jury.
    
      Gabriel L. Smith, for app’lt; J. A. Reynolds, for resp’t.
    
      
       Affirming 37 Hun, 216.
    
   Gray, J.

The appellant contends that a devise of real property to the respondent was satisfied by the payment to her in the testator’s, her father’s, life-time, of a sum of money and fur which she gave a writing in the following form:

“ Received of Oliver Comfort $500, which money I receive as my part of my father’s estate, up to this time and all such other property as he may accumulate up to _ his decease. In witness whereof I have hereunto subscribed my name. Dated Southport, May 14, 1884,’’ and signed “Harriet Burnham, in presence of Lawrence Lain.”

By testator’s will, made prior to that date, he had devised to his brother certain lands for life, and after his death to his daughter. His residuary estate, testator gave to his son Oliver, this appellant. Testator died some fifteen years after the receipt was taken from his daughter, and there is no evidence of any revocation or alteration of his will or of any part thereof having been made by other wall or codicil or instrument executed with the formalities of a will.

It was found as a fact below, and it is conceded here, that this payment by testator to his daughter was intended to be in lieu of the devise to her in the will, and that it was so accepted by her at the time.

The question is thus squarely presented whether a satisfaction of the devise in the will to the daughter was effected. If we should hold that such was the effect of the transaction between the father and daughter, we must hold that it operated as a revocation of the will to the extent of the provisions affecting the daughter’s estate thereunder.

We think such a proposition to contravene the spirit, if not the letter of the provisions of the Revised Statutes of this state applicable to wills; and that it lacks support in principle as it does in authority.

The rule of ademption is predicable of legacies of personal estate and is not applicable to devises of realty. Story’s Eq. Jur., § 1111; 2 Williams on Ex’rs, 1202 (5th Am. ed.); 1 Roper on Legacies, 365; Davys v. Boucher, 3 Young & Collyer Eq. Rep., 397; Langdon v. Astor’s Ex’rs, 16 N.Y., 34. Ademption is the extinction or satisfaction of a legacy by some act of a testator, which is equivalent to a revocation of the bequest, or indicates the intention to revoke; and the rule is applied where testator is a parent of the legatee or stands in loco parentis. The question of its application is made to depend upon the declared or presumed intention of the donor. Langdon v. Astor’s Ex’rs (supra). The danger of creating an intention from the facts is ordinarily great enough to require in each case that the mind of the court should be wholly satisfied as to the meaning of the testator’s act. In the present case had the testamentary gift been a legacy of personal property, we should say that no doubt could exist as to what was intended by testator at the time of the transaction. We see no reason, however, for the application of any such rule to devises of real property

During a testator’s life-time his will is of course inoperative and ineffectual, and only upon his death does it have any legal operation.

The writing which testator took from his daughter was not an agreement in any sense- binding, upon him, nor was it one which accrued to appellant’s benefit. Appellant was-no party to it, and no consideration moved from him for its execution. The question is not such as would arise by reason of a transaction between respondent as the legatee and appellant as the residuary legatee, by which she had transferred or released to him her interest under her father’s will in due form. After the writing had been delivered the daughter may have been precluded from asserting her right to recognition in her father’s will, but the father was at liberty either to give legal effect to the transaction by changing his will and revoking the provisions in his daughter’s favor, or to reconsider any previously existing intention of altering his provision for her. Although he survived the transaction fifteen years he did not change his will, and the presumption of a subsequent change of intention on his part from any motive may be entertained without doing any violence to our ideas of strict justice.

But a deeper principle underlies the consideration of this question in the effect to be given to our statutes governing the making of wills. A specific devise of real property .may be revoked by alteration or alienation of the estate during testator’s fife (Livingston v. Livingston, 3 Johns. Ch. Rep.. 154; McNaughton v. McNaughton, 34 N. Y., 201), but we fail to see any other mode of affecting such revocation without running counter to those provisions of the .statutes which declare what acts shall revoke or alter a will in writing. Revised Statutes (Banks’ 7th ed.), vol. 3, 2286-2287.

Those provisions do not contemplate a revocation or alteration of any part of a will, or of any previous devise, except by some other will in writing, or some writing of the testator declaring such revocation or alteration, and executed with the same formalities with which a will is required to be executed. Section 42. And they do contemplate a revocation of a devise of property, previously devised by testator, to be operated when the testator’s interest in such property has been altered, but not wholly divested, by some conveyance, settlement deed or other act of the testator, only when the instrument by which the alteration of testator’s interest is made declares the intention that it shall operate as a revocation of such previous devise, or its provisions are wholly inconsistent with the terms and. nature of such previous devise. Sections 47-48.

Thus the statute explicitly declares that where a will is not wholly, or in part, revoked or altered by some other will, or writing executed with like formalities, a previous devise of property is only to be deemed revoked by some alteration of testator’s interest in the property devised, evidenced by some conveyance or instrument, either declaring the alteration to be a revocation or wholly inconsistent with the nature of the previous devise.

In these provisions I think I see ample reason for refusing our sanction to the introduction of a doctrine which, while if applicable at this day to legacies of personal property, can work no especial prejudice to rights of property in such application, yet in its application to devises of real property might work great mischief and tend to endanger the safety of titles which depend for their security upon the conduit of a testamentary devise

The reason for refusing to extend the application of the principle of satisfaction to devises of real estate, which was assigned in the case of Davys v. Boucher (3 Young & Colly er Eq. Rep., 397), was that to so extend it, would repeal that provision of the statute of frauds which applies to the revocation of wills of real estate.

The sixth section of the English Statute of Frauds (29 Car 2, chap. 3, § 6) provided that devises in writing of lands, etc., should be revocable by some other will, or codicil, or writing declaring the same, or by destruction by testator’s act; and that all such devises should remain in force unless so destroyed, or unless altered as mentioned, by will, codicil or writing, witnessed in form. The subsequent passage of chapter 26 of 1st Victoria, placed the revocation of wills of personalty upon the same footing as wills of realty. 1 Wins, on Ex’rs, 106, 107, 130, 131. There is a sufficient likeness in the English statute to ours to make the reasoning applicable here.

A rule of law which has heretofore been sanctioned and relied upon, which is in unison with the spirit and with the sense of our statute, and which offers a safe rule of property, is rather to be followed, than to be departed from for reasons moving from the circumstances of a particular case.

Reference to adjudged cases in the courts of other states only serves to confirm us in the views we have expressed, Clark v. Jetton, 5 Sneed, 229; Allen v. Allen, 13 So. Car., 512; Weston v. Johnson, 48 Ind., 1.

The judgment should be affirmed.

All concur, except Earl and Peckham, JJ., dissenting.  