
    *Hansbrough’s Ex’ors v. Hooe & Wife.
    April, 1841,
    Richmond.
    (Absent Stanakd and Allen, J.)
    Legacies and Devises — Advancements—Ademption-— Case at Bar. — Testator, by his will, devises 2000 acres of land, and bequeaths twenty-eight slaves, and sundry bonds amount not mentioned, and one fourth of proceeds of sales of land not specifically devised, to his granddaughter Maria and five other children of his son John deceased, to be divided among them; and that one fifth part of the general residuum of his estate shall be equally divided among the same persons; and, by codicil provides, that Maria’s part shall be settled to her separate use for life, remainder to her children if any. and if none, to the use of the other children of her father; after which, on the marriage of Maria, testator, by marriage contract, gives her 400 acres not parcel of the 2000 acres of land, nine slaves parcel of the 28 slaves named in the will, and 1500 .dollars in money, all to he settled on her for her ■use and the heirs of her body, but in case of her death without issue, or in event of such issue as she may have not arriving- to 21 years of age or marrying, then to the heirs of her father: Held,
    1. All the legacies of personal property to Maria, were adeemed or satisfied by the gift to her in the marriage contract.
    2. The devise of land to her is also adeemed or satisfied by the landed portion given her by the contract; dissentiente Tucker, P.
    Peter Hansbrough, the elder, late of Cul-peper, by his will, dated the 8th November 1820, after devising lands to his sons James and Peter respectively, devised and bequeathed as follows: “I give and devise to the six children of my son John Hansbrough now deceased, and to their heirs forever, equally to be divided among them, namely, Marius, Maria, Hamilton, Peter, Julia and John, and their heirs, equally to be divided amongst them, all those tracts of land, lying on or near to Potowmac river and its waters supposed to contain 2000 acres, which several tracts of land I purchased at divers times from the several persons following (naming the persons); but should the said tracts of Hand above enumerated not contain 2000 acres, my will is, that so much be taken off from the adjoining lands which X bought of Smallwood’s heirs, as will make the quan'tit3' hereby devised 2000 acres: this my executors are to see done in the most suitable and beneficial shape as respects the interests of both parcels of land. I also give and devise to the said six children and their heirs, equally to be divided among them, the twenty-eight slaves which I purchased of their father John Hansbrough, as will appear by his bill of sale to me for the same, recorded in the county court of King George, in or about the year 1814, together with all the increase of the said slave from the time I bought them, and their future increase. Also, I give and devise to the said six children, equally to be divided amongst them, and I do hereby assign to them, a bond given to me by my son James Hansbrough, for a sum of money, the proceeds of the sale of one of the above slaves purchased by me as aforesaid from, my son John and sold by me, and the money loaned by me to my son James, for which I took his bond: also I hereby- assign to them all the bonds given to tvhe administrator of John Hansbrough by my sons James and Peter and my grandson Joseph Hansbrough, for the purchases of property respectively made by them at the sale of my son John’s estate, which bonds are in my possession and will be found among my papers or with this will.” Then followed a devise of lands to his daughter Amelia Belland the testator further devised and bequeathed: “It is my will and desire, that all the residue of my lands in the county of King George and elsewhere, not herein devised, shall be sold "by my executors for the best price that can be had, and on such credit as they or a majority of them shall deem proper, and the proceeds to be equally divided between my sons James and Peter, my daughter Amelia Bell, and the six children of my son John, that is, one fourth of the whole amount to be ^allotted to the said six children to be equally divided among them, and one fourth of the whole amount to each of the others, viz. James, Peter and Amelia.” Then followed other devises of lands to his sons Peter, James and William, and a bequest to his daughter Mildred Browne, and then the following residuary bequest: “After the payment of my just debts, I devise all the residue of 'my estate, real and personal, to my sons Peter, James and William, my daughter Amelia Bell, and my six grandchildren named above, and their heirs, to be equally divided amongst them, 'that is to say, one fifth part of the whole to my six grandchildren to be equally divided amongst them.” —“And I do hereby discharge my children from all claims on them, for moneys paid by me to or for any or all of them at any time or on any account whatever. My will and desire is, that should any of the dev-isees named in this will depart this life before I do, then and in that case, the legal heirs and representatives of such devisee so dying shall take and inherit all the estate intended to be devised by me to such decedent, any law or risque concerning lapsed legacies to the contrary notwithstanding.” And the testator appointed his sons Peter and James his executors.
    By a codicil dated the 4th October 1821, the testator first provided, that the provision made by his will for his six grandchildren bjr his son John, should be a bar against any claim they might have against him on account of the estate of their father; and then added — “Since making my foregoing will, circumstances have occurred which induce me to think it to the interest and future happiness of my granddaughter Maria Hansbrough” (one of the six children of his son John)' “that a change be made in the nature of the several devises in her favour contained in my said will: therefore, my will is, that all the property devised to her, real and personal, is hereby devised by me in trust to my executors, to be *held by them for the sole use and benefit of the said Maria Hansbrough during her natural life, and at her death to be by my executors conveyed to such children as the said Maria may leave or to their representatives, and in default of such child or children or their representatives, then my will is, that the same shall be equally divided and conveyed as aforesaid to the other children of my son John or their representatives.”
    In May 1822, the testator’s granddaughter Maria, being about to be married to John Hooe, he Hooe made the following proposition to the testator: “My friend Mr. Hooe is authorized to receive from Mr. Hans-brough the following terms, viz. Mr. Hans-brough to settle on his granddaughter and children 500 acres of land in King George county, and ten negroes, provide a house for us to live in, and then to give me 2000 dollars, or, if to him more convenient, any property that will cover that sum. (Signed) John Hooe.”
    This paper was presented by Nathaniel Hooe to Hansbrough, the testator, in company with G. S. Thom and the testator’s son Peter; and he, at first, positively and ■warmly refused to listen to the propositions therein contained, assigning- as a reason (among others) for such refusal, that he had provided for his granddaughter Maria by his will, and he produced the will, and read the clause providing for her. But by the persuasion of Mr. Thom and his son Peter, he at last gave a written promise in the following words:
    ‘T will give my granddaughter Maria Hansbrough, in the manner above proposed and for the purpose in contemplation, the following property and monejq viz. 400 acres of land, nine negroes (naming them) and 1500 dollars in good bonds or property, to be paid as soon as practicable after the marriage takes place; 300 acres to be in a body, and probably the whole quantity of 400 acres above mentioned, — to be the lower part of the tract I own in King George, called Orter Hills, adjoining *the land purchased by John Minor of Col. Smith. The land abovemen-tioned is to be independent of the land to which my granddaughter is entitled from her father’s estate in King George and Culpeper. And on the land a comfortable house shall be built. Moreover, I will loan to my said granddaughter such other matters and things as it may be convenient to me to furnish her with. All the property above mentioned shall be considered as settled on my said granddaughter for her use and the heirs of her body; but in case of her death without issue, and in the event of such issue as she may have not arriving at the age of twenty-one years or marrying, the said property to revert to the heirs of my said granddaughter’s father. It is to be understood and remembered, that my granddaughter is to relinquish all claims she may have against me on account of her father’s estate, in consideration of the foregoing property thus settled on her, the land excepted. This is to be fully complied with by all the parties concerned after the marriage of John Hooe and Ma.ria Hansbrough is celebrated. The negroes now hired out, not to be demanded till the end of the present year, when the land is likewise to be delivered. (Signed) Peter Hansbrough.”
    The testator’s granddaughter Julia died; and then he died, in October 1822.
    The nine slaves named in the above agreement for a marriage settlement, were part of the twenty-eight slaves which the testator had bought of his son John, and which were bequeathed by his will to the six children of that son. But the land mentioned in the agreement, was not parcel of the 2000 acres therein devised to those grandchildren, but was parcel of other lands held by the testator in King George.
    The testator’s executors and devisees executed the agreement for the marriage settlement, by delivering to Hooe and wife the slaves therein mentioned, assigning to them the 400 acres of land therein described, and "’''building a house thereon: and this land was worth much more than any 400 acres of land, parcel of the 2000 acres to which (after the death of her sister Julia) Mrs. Hooe would have been entitled under the will.
    The bill was exhibited in the superior court of chancery of Fredericksburg, whence it was removed to the circuit superior court of Spotsjdvania, by John Hooe and Maria his wife, against the executors and the dev-isees of Peter Hansbrough deceased, to recover one fifth part of the residue of the twenty-eight slaves bequeathed by the testator to his grandchildren, over and above the nine slaves settled on her by the marriage contract, and one fifth of the 2000 acres devised by the will to those grandchildren, in addition to the 400 acres settled on her by the same contract.
    It was proved, that the children of John Hansbrough, from the time of his death, lived with the testator, their grandfather, and were maintained and educated by him.
    The circuit superior court held, that the legacy of the slaves was adeemed by the gift contained in the marriage contract; but that Mrs. Hooe was entitled to an equal share with her brothers, of the 2000 acres of land devised to her by the will, notwithstanding and in addition to the 400 acres settled on her by the marriage contract; and decreed accordingly: from which decree, this court allowed the defendants an appeal.
    Leigh, for the appellants.
    Patton, for the appellees.
    
      
       Legacy — Advancement -Ademption — Principal Case Distinguished. -The principal case is distinguished in Strother v. Mitchell, 80 Va. 154, on the ground that the gift in that case was made before the making of the will, and is not charged therein as an advancement, whereas, In the principal case, the gift, which was held such an advancement as would work an ademption of the legacy, was made after the making of the will.
      Upon this subject, see monographic note on “Legacies and Devises”: monographic note on “Advancements” appended to Watkins v. Young, 31 Gratt. 84, and extensive note appended to the principal case In 37 Am. Dec. 667.
    
   CABLLL, J.

The question in this case, is, whether the legacies and devises given by the will of Peter Hansbrough, to his granddaughter Maria Hansbrough (now Mrs. Hooe) were revoked, adeemed or satisfied, by the subsequent advancement in real and personal property, made to her by him, on her marriage to Mr. Hooe.

*The doctrine upon this subject, so far as relates to legacies, was very concisely, but lucidly laid down by Lord Eldon in Trimmer v. Bayne, 7 Ves. 508. He says, “The rule is settled, that where a parent, or person in loco parentis, gives a legacy as a portion, and afterwards, upon marriage or any other occasion calling for it, advances in the nature of a portion to that child, that will amount to an ademption of the gift by the will, and this court will presume he meant to satisfy the one by the other.” This rule was fully considered, recognized and acted on by this court, in the case of Jones v. Mason, 5 Rand. 577. I am clearly of opinion, that this rule is applicable to, and is decisive of, this case, so far as respects the legacies of slaves and other personal property; and consequently, that the decree as to those subjects is correct.

The question whether the devises of real estate, also, were revoked, adeemed or satisfied, by the subsequent advancement, is attended with more difficulty. After much reflection, however, I have come to the conclusion, that this question likewise, is to be determined in the affirmative.

It is said, that no case has occurred in which the doctrine of the ademption of legacies has been extended to devises of real estate This is true. But it is equally true that there is no case, in Virginia at least, deciding that the doctrine is inapplicable to such devises. The question is now fairly presented, for the first time, and we must meet it. The novelty of a question is well calculated to inspire caution and circumspection, but is not sufficient to control our judgment. New cases are perpetually occurring; but they can be correctly decided, only by the application of old and well established principles. The case of Jones v. Mason was a new one: nothing like it could have occurred in England ; nor had such case ever been presented to our own courts. It was there decided, for the first time, that a specific *legacy of slaves, given as a portion, was adeemed, in part, by a subsequent advancement of other slaves, made and intended by the testator, in lieu of certain of his slaves given by the will. It was thus decided, because, according to the practice in our country, it had become common for parents to provide portions for their children by a bequest of slaves, and because it was, on principle, as just and proper that such portions should be adeemed and satisfied by a subsequent advance of other slaves in lieu thereof, as if the portion provided by the will, and that provided by the subsequent advancement, had both consisted of money. It seems to me, that this principle is quite as applicable, in this country, to a portion by will consisting of lands; for it is well known, that it is almost as common to provide portions for children by a devise of lands, as to provide them by a bequest of slaves; and, as far as my observation has extended, it is more common to provide them in lands, than in money: whereas, in England, it is very rare that younger children are advanced otherwise than in money. Our legislature has, in many cases, manifested a disposition 'to break down the distinction, which formerly existed, between real and personal estate. Thus, in case of intestacy, the real and personal estate will, with a very few exceptions, go to the same persons; and an advancement of real estate is to be brought into hotchpot in the distribution of personalty, and an advancement of personalty is to be brought into hotchpot in the division of the real estate. It seems to me, that, in relation to the subject now before us, the nature of the estate given, whether re.al or personal, is a matter of no consequence. The object for which it is given, is the thing to be attended to. If it be given as a portion for the child, whether it be realty or personalty, it ought to be adeemed by a subsequent advancement made by the parent in lieu of the legacy. Now, in the case before us, it is impossible to look at the facts, and not to see. that *the legacies and devises in the will were intended as a portion; and it is equally impossible not to see, that the provision by the advancement, on the marriage, was intended by Mr. Hansbrough to be in lieu of, and not in addition to, the provision made by the will. What is to prevent us from applying to this case the same principle of equity that was applied in the case of Jones v. Mason? I hope I have shewn, that there is nothing in the objection q.s to the novelty of the case. It is contended for the appellees, that our hands are tied up by our statute concerning wills, which, after prescribing the manner in which' a will of lands shall be made, declares, that 1 ‘no devise so made, or any clause thereof, shall be revocable but by the testator or testatrix destroying, can-celling or obliterating the same, or causing it to be done in his presence, or by a subsequent will, codicil or declaration in writing, made as aforesaid.” But, as Judge Green observed in Jones v. Mason, this clause is the same in effect with the clause in the statute of 1748, which was taken from the 22nd section of the English statute of frauds, 29 Ch. 2, and which provides, that “no will in writing, or any devise therein of chattels, shall be revoked by a subsequent will, codicil or declaration, unless the same be in writing.” The statute of frauds, however, has never been held in England, to prohibit the revocation, either of wills of land or of personalty, by implications founded on events subsequent to the making of the will. And in the case of Wilcox v. Rootes, 1 Wash. 140, it was expressly decided, that the subsequent marriage of the father, and the birth of a child, was an implied revocation of a will, even at law, both as to real and personal estate. I see no objection to extending the principle, at least in equity, to an implied revocation by a subsequent advancement, made and intended by the testator in lieu of the provision made by the will. The fact that a legatee of personal property can recover his legacy only in a court of ^equity, while a devisee of lands, taking the legal title, may recover in a court of law, seems to me to make no material difference in the case. It very often happens, that the legal title is in one person, while the equitable is in another; and, in such cases, it is competent to a court of equity to prevent the assertion, or enforce the surrender, of the legal title.

I am of opinion to reverse the decree, so far as it purports or intends to give to the appellees any portion of the real estate; and to dismiss the bill.

BROOKE, J., concurred.

TUCKER, P.

If there can be a case in which a grandfather can place himself in loco parentis in relation to his grandchildren, of which there is no reasonable doubt, this is such a case. John Hansbrough, the son of the testator, being dead, his children are taken into the family of the grandfather and receive their nurture and education from him; and by his will, he places them in the position of children, by devises and bequests of real and personal property to be divided among them and his sons and daughters, giving them the share of their deceased father. The bequests to them are not of independent and substantive legacies, which might be deemed an emanation from his mere bounty; but it is a partition among his living children and the children of a deceased son, of his entire estate. Eor although some of the clauses of the will contain devises and bequests of distinct and separate property to be divided among them, yet there are others, in which other portions of the estate are given to the children and grandchildren together, to be divided equally amongst them, except that the grandchildren are to take the portion of their father. And the whole will taken together shews very distinctly that it was the testator’s design that his grandchildren should have what his son John would have *had. He had thus placed them in loco filiorum, and by consequence places himself in loco parentis.

I am not less satisfied, that the intention of Peter Hansbrough, the testator, was that, the settlement made upon the marriage of his granddaughter Maria should be a satisfaction of what he had given her by his will. He did not design a double portion for her. The peremptory style of Mr. Hooe’s communication was in no wise calculated to conciliate the grandfather, and to induce him to give to this daughter of his son John twice as much as to her brothers and sisters. The facts proved establish the refusal in the first instance, and the reluctance throughout, of the testator to enter into the marriage agreement. He produced his will and insisted on its provisions as being sufficient. But the matter was pressed upon him, and he at length assented. We see in this no evidence of a disposition to add to what he had given by the will. On the contrary, as I understand the transaction, he on his part was unwilling to bind himself by contract to do that which he had already done by his will, and thus to take from himself that power of revocation which the circumstances of the case or his own natural disposition might have made it desirable to retain. Mr. Hooe, on the other hand, was probably unwilling to subject himself to the caprices of the old man, and may have been desirous to make the advancement (which seems to have been a sine qua non) as irrevocable as the marriage tie, by which he was to be indissolubly bound. This, I take it, was the real matter of difference, nor does there appear to be the least reason for believing that either of the parties thought of the provisions of the settlement being cumulative, instead of a mere substitute for the provisions of the will.

Now, it is an established principle that when a parent, or person in loco parentis, gives a legacy as a provision, and after-wards upon marriage, or upon any other occasion ^calling for it, he makes an advance in the nature of a portion to that child, that will amount to an ademption of the gift by will, Trimmer v. Bayne, 7 Ves. 508; Monck v. Monck, 1 Ball & Beat. 298. Was the marriage settlement, as it is called, such an ademption?* The court below considered it as such, as to the whole of the provisions of the will except the land; but it held the devise of the land to be unrevoked by the subsequent contract.

Was the devise of the land revoked or adeemed by the marriage settlement? I concur with the court below, in thinking it was not. It is conceded, that there is no instance in the English books or our own, of such a revocation. A gift or sale of the devised subject is indeed an ademption, because the thing itself is gone. It is taken away by the act of the testator himself, whose power of disposition is not restrained by his will. But the gift of ■other land cannot in like manner operate an ademption, because the land devised is not taken away. It is left for the will to operate upon; and to permit the gift of other land to effect an ademption, would be to construe such gift as evidencing the animus revocandi, which the statute has provided shall only be declared by a subsequent will, codicil, or declaration in writing, made in the manner in which a will of lands is required to be made. There are, indeed, two ways by which a devise of lands may be rendered nugatory or may be avoided: either by taking away the subject, so that the will though unrevoked has nothing to operate on; or by revoking the clause, so that, although the subject remains, there is no will to dispose of it. But a gift of other land cannot operate to adeem, since the land devised is left for the will to operate on; nor can it operate to revoke, because revocation can only be according to the statute.

It is said, however, that notwithstanding the statute, there may be implied revocations. This cannot be denied; but it may be confidently affirmed, that there is no *'case in which a devise to a child of one tract of land has been held to be impliedly revoked by the gift of another. How far it was legitimate to set up any implied limitation in the teeth of the statute, may not now be questioned. We are bound by adjudications in this respect which we may not disregard. But where no precedent commands us to set the statute at defiance, we should steadfastly adhere to its wise and salutary provisions.

Again, it is said, that by the rules of equity an advance to a portioned legatee is to be taken as satisfaction. But these rules do not extend to the realty. They are rules for the personalty, over which the control of equity is entire. The subjects of legacies and distribution are within its peculiar jurisdiction. The legatee acquires no legal title by the will, and distribution can only be obtained through a court of chancery. That court, accordingly, can make and has made certain rules on this subject, which must now be followed. But the realty devised is not within its grasp. A devise passes the legal title to the devisee, and the question of revocation is for a court of law. Had Hooe and wife instituted their ejectment for the land devised, no question of their title could have been raised. In vain would the defendants have set up the gift of other land as a revocation of the devise. It could not be pretended to have that operation in a court of law; and it is equally clear that equity must follow the law in deciding the question of revocation.

It seems to be supposed, however, that as the contract in this case is not executed but executory, a specific execution would not be decreed except upon the terms of releasing the interests under the will. Whether this be so or not, it may not in this case perhaps be proper to decide, as the bill is filed not to carry into execution the marriage settlement, but to enforce the rights of the plaintiffs under the will. But if the question were before us, I should hesitate to accede to the proposition. ^Contracts of marriage cannot be regarded as standing upon the ordinary footing of other contracts as to specific execution. When the marriage has taken place, there must be specific execution, unless there be fraud. Unreasonableness or delay, or any of the usual grounds of opposition, would seem inadequate to bar a decree for specific performance when the irreversible execution of it by marriage has once taken place. - The parties, by that act, are placed in a situation, in which the status quo ante has become impossible forever. Specific execution, from the moment of consummation, seems to be inevitable for the purposes of justice. I except, as of course, matters of fraud or of contract. If, for instance, in this case the agreement had been obtained by fraud, or if Hooe and wife had agreed that her rights under the will should be given up in consideration of the settlement, a case would certainly be presented in which a court of equity would compel the necessary releases to effectuate justice. But that cannot be in the case as it stands. There is no proof of fraud, whatever we may think of the unusually peremptory requisition of the intended husband. Nor is there any proof that he even knew of the provision by will, and much less that he agreed that one provision should be substituted for the other. Upon what ground, then, could a court of equity take away the settlement rights of Hooe, unless he would relinquish the testamentary rights of Maria Hansbrough in the lands devised to her, when neither she nor her intended husband ever assented to, or so understood, the contract of m.arriage? There can, I think, be no sound reason for doing so, and if the question was fairly presented by the record, I should incline to decide it in the negative-. With these views, I am of opinion to affirm the decree'so far as respects the real estates devised by Hansbrough to the female'plaintiff.

We are next to enquire, whether the court erred in declaring the bequests of personal estate to Maria Hansbrough *to have been adeemed and satisfied by the marriage contract? And I am of opinion, that in this also the court was' right. Upon the argument of the case, I was disposed to think, that as the limitations in the will and in the settlement were somewhat different, and absolute fee being limited to the unborn children in the one case, and a contingent one in the other, there could be no ademption. But reflection and authority have satisfied me, that if the’ direct objects of the provision are the same in both, it is not material though there be some variation as to those remotely in contemplation of the party. Thus, as both the provisions are for Maria Hansbrough who was the direct object of them, and as to her do not materially vary, it is immaterial that the provisions differ somewhat as to her unborn children, who .were remotely contemplated, and may truly be regarded as mere accessaries to herself. The case of Monck v. Monck is, in this respect, much stronger than this. There, Lord Monck bequeathed to his brother £5000. the interest tobe paid to him during life, and if he married, with power to jointure his wife by an annuity of .£150. per annum, the principal to go to the issue of the marriage, and in default &c. over. He afterwards, on his brother’s marriage, gave his bond to trustees in the marriage settlement, declaring the uses to be to pay the interest to his brother for life, remainder to his wife for life, the principal to be divided amongst the issue in such shares as the father should appoint. The variance in the provisions was not held sufficient to relieve the case from the general rule. I think, then, there is no difficulty in this case arising out of the variance of the provisions, and there is certainly none as to the adequacy of the settled property to cover all the personal bequests. Por though the devise of the land cannot be revoked or adeemed by the gift of other land, yet the gift of that other land is an advancement which upon the rules of equity will, if adequate, adeem the *personal bequests. Now, there can be no doubt, that the 400 acres of land and the personal estate in the settlement are of more value than all the personal interests bequeathed to Maria Hansbrough by the will; and if so, they are, including the share in the residue, adeemed by .the settlement. As to the doctrine respecting the residuum, see the cases collected in Hovenden’s note 3, to Wilson v. Piggott, 2 Ves. jr. 350.

The counsel for the appellants has presented another view of this case, which requires to be noticed. He considers it as falling within the influence of the rule, that no man can be permitted to claim under and against a will. But here the ap-pellees do'not claim any thing against the will. . It is true, thejr claim lands, slaves, money &c. which were otherwise disposed of by the will. But the testator himself, by his own act, adeemed and revoked that testamentary disposition. Prom the moment that he made the settlement, so much of the will as had given the settled property to others was annihilated, and the appellees do not assert a claim inconsistent with the will. So that although, so far as respects the personal bequests to them, there is an ademption, yet it is not because they are claiming against the will, but because the testator is conceived to have satisfied those bequests by the marriage séttlement in his lifetime. If the principle contended for could be applied to gifts in satisfaction of legacies, there could never be a difficulty as to an advancement being intended as a satisfaction or not. In every case, the donee would be compelled to give up the one or the other.

Decree reversed, and bill dismissed.  