Roberts v. Weatherford , 10 Ala. 72 ( 1846 )

GOLDTHWAITE, J.

It can scarcely be necessary at this day to review all the cases to be found in the books, on the subject of ademption, for however cases may vary, in particular circumstances, there is no question of the existence of the rule, that when a parent bequeath’s a legacy to a child, and afterwards, in his lifetime, gives a portion, or makes a provision for the same child, it will be presumed to be in lieu of the legacy, although it be not so expressed, whenever it is equal to, or exceed the amount of the legacy, is certain, and not contingent, and is of the same nature. [2 Story Eq. §1111.] In Wharton v. the Earl of Durham, 3 M. & R. 478, it is said, the giving of a marriage portion to a child, will adeem a legacy previously given by will, unless from the circumstances of the case, an intention appears that the child shall have both; and there is to be no leaning, still less any straining against inferring such an intention from circumstances, any more in this than in any other case. We are clear, after looking at many of the cited cases, that this is the true rule, and perhaps the only one which will embrace all the decisions. When we look at this case, wholly independent of the declarations of the testator, when the deed was executed by which the slaves were given, subsequently to the will, we find a father, in 1838, providing for the disposition of all his estate, between his wife and three named children. To each of the children he gives the same number of slaves, and to his wife all that might remain. One of these children is a daughter then unmarried. Subsequently she marries, and her father, some seven years after the date of his will, gives her precisely the same number of slaves, but settles them to her separate use, and provides she shall only have the life estate, with remainder to such children as shall be living at the time of her death, at the same time reciting his desire to provide for this daughter and her children. At the time of his death, all his slaves number but forty-three— at least such is the inference we draw from the facts stated, and if it was otherwise, it remained with the petitioners to set forth the number. It is then evident from the circumstances, that the legacy was satisfied by the subsequent provision, or we must infer, the testator, by making this provision, intended to place his estate in such a condition as would leave his wife with only two slaves.

We are clear the deed, on its face, must be considered as adeeming the legacy, and therefore, without considering the question as to the effect of the parol evidence, the decree is affirmed.