Hoke v. Herman , 21 Pa. 301 ( 1853 )

The opinion of the Court was delivered by

Black, C. J.

— Emanuel Herman executed his last will, bequeathing to the plaintiff a note made by himself (the plaintiff), and payable to the testator, for $600. The testator afterwards became insane, and so continued till his death. A committee was appointed of his person and estate, to whom the plaintiff, in ignorance of the will, paid $178.68 on the note. After the testator’s death the note with this credit endorsed was delivered to the plaintiff. He brings this suit against the executor to recover the amount paid. The sole question is, whether this payment under the circumstances is an ademption of so much of the legacy.

That this legacy is specific no one denies ; and that a specific legacy of a debt is extinguished, if the testator receive payment of it in his lifetime, is, as a general rule, not controverted. But the payment was made to the committee when the testator’s mind was a wreck, and when therefore his own act did not cause it. If it be true, as argued by the plaintiff, that ademption depends upon the intention of the testator and never occurs without the animus adimendi, the plaintiff is entitled to recover what was paid on the note, out of the funds which would otherwise go to the general legatees.

The rule seems to have prevailed in some of the old English cases, that the ademption was. a question of intention: (1 Equ. Abr. 302; 2 Vern. 681). On this principle'it was held, that when the testator called in the debt, the gift of it by his will was extinguished ; but not so when the debtor paid it of his own accord; (1 Atk. 508); because in the former case the animus adimendi was clear enough, while in the latter it was naturally presumed not to exist. But all this has been exploded long ago; and no such distinction is taken in the modern cases. (2 Ves. 264; 1 Pierre W. 464). It was finally settled that the only rule was to see whether the subject of the bequest remained in specie at the time of the testator’s death; for if it did not there was an end of the legacy, no matter how it may have been disposed of: (2 Cox 180). - And therefore when the debtor became bankrupt, the receipt of a dividend by the testator was held to be an ademption pro tanto: (2 Bro. 108). This seems to have been adhered to ever since, except in one case (2 Ves. Jr. 639); and that is said by Lord Alvanly, (4 Ves. 574), not to be clearly the other way.

The opinion of Chancellor Kent in Walton v. Walton, (7 Johns. Chanc. C. 264), is cited by the plaintiff. But I do not think it sustains him. The chancellor says that the character of the -legacy, whether specific or demonstrative, is essentially a question of intention ; and so it is without doubt. But he does not say, and the ease did not require him to say, whether ademption of a legacy admitted to be specific does or does not depend upon intention.

But the decisive authority on the point is found in our own books. In Blackstone v. Blackstone, (3 Watts 338), a bequest of bank stock, which after the date of the will was exchanged for a bond, with the declared intention of keeping the bond for the legatees in lieu of the stock, was held to be adeemed for reasons paramount to all considerations of intention. The legacy having ceased to exist in specie, no matter how its extinction was caused, neither the bond taken as a substitute for it, nor its value, could be demanded from the executor.

We hold therefore that if a thing bequeathed in a will by such a description as to distinguish it from all other things be disposed of, so that it does not remain at the death of the testator, or if it be so changed that it cannot be called the same thing, the bequest is gone. If such legacy be of a debt, payment necessarily makes an end of it. The legatee is entitled to the very thing bequeathed if it be possible for the executor to give it to him; but if not, he cannot have money in place of it. This results from an inflexible rule of law applied to the mere fact that the thing bequeathed does not exist, and it is not founded on any presumed intention of the testator.

In the present case payment to the committee was as complete an extinguishment of the debt as any payment could have been if made to the testator in sound health. The committee had a right to receive and give credit for it, and even to sue for and recover it. It follows that the judgment of the Common Pleas in favor of the defendant was right.

Judgment affirmed.