Balliet's Appeal

The opinion of the court was delivered by

Rogers, J.

— I am unable to agree with the Orphans’ Court that the sale of the real estate amounts to a total revocation of the will, but to a revocation pro tanto only. There are no circumstances in evidence, from which it can reasonably be inferred that the testator intended a total revocation.

The testator devised his whole real estate to his two nephews, Stephen and Paul Balliet, burthened with the payment of $30,000 to his sister, and nephews, and nieces, and their issue. He moreover bequeathed to the same persons other real estate, all his bank stock, and all the rest and remainder of his estate, effects, and property of whatsover kind, and wheresoever situated; provided, nevertheless, in case the residue of his personal estate shall exceed twenty thousand dollars, the excess or overplus shall be rateably applied to the six legacies of $5000 each, thereinbefore given to his sister, and the issue of his deceased brothers and sisters. Notwithstanding the alienation of the whole real estate in the lifetime, there is evidently something on which the will can operate, viz. the $20,000 bequeathed by the will, and the residue to which the legatees will be entitled, namely, the surplus of the personal estate, over and above the amount bequeathed to Stephen and Paul Balliet. Thus, if as in Cooper’s estate, the testator, by the sale of the property, rendered it impossible to carry out the provisions and clear intent of the will, it would amount to a revocation in toto. The case of Cooper’s Estate, 4 Barr 88, was ruled under peculiar circumstances, evincing, as the court suppose, the intent of Cooper to revoke his will, by the sale he made of the principal part of the estate. The disproportion of the real and personal estate, the situation of the testator’s family, and the manifest injustice which resulted from its giving the whole estate to two daughters, and excluding five other daughters who got nothing, mainly entered into its consideration. This case differs from that in this, that under our construction there is nothing unreasonable in the will, as one of the effects will be to give to Stephen and Paul $20,000, which it is perfectly plain the testator intended they should have out of the personal estate. Nor would we be at liberty to frustrate this intent — the inevitable effect of ruling that the sale of the real estate was a revocation in toto. Under that construction, these legatees, instead of getting twenty thousand dollars out of the personal estate, would get nothing. The appellants, who were evidently the great objects of the testator’s bounty, would be deprived of any portion of the estate, as they were the grandnephews of the testator, and their father still living. So that if there be any hardship in the construction given the will, it is equally great in one case as in the other. And this view.of the principle of revocation is in accordance with the authorities, some of which will be cited. Thus in Howes v. Humphrey, 9 Pick. 350: The testator in his lifetime, and subsequent to the making of his will, conveyed by deed a part of the estate devised. Per curiam: “ To the extent of these conveyances, there is a revocation pro tanto, and nothing more. In order to defeat altogether a testamentary disposition, there must be a subsequent conveyance of the whole estate. If the conveyance be of a part only, it will only amount to a revocation pro tanto.” Brown’s Appeal, 15 Pick. 388, was the case of an appeal from the decree of a judge of probate disallowing a certain instrument offered for probate as a last will. .The testator, subsequently to executing his last will, had aliened all his real estate, as here, and had written on his will the following words : “ It is my intention at some future time, to alter the tenor of the above will, or rather to make another will. I desire the foregoing to be considered revoked, and of no effect.” This was not attested, as required by the statute to revoke a' will of real estate. Held by the. court, “If a testator devises both real and personal estate by a will duly attested, and by an alienation of the .real estate revokes the will pro tanto, the will then stands as a will of personalty only, and is revokable accordingly by any writing sufficient to make a will of personal estate.” In Carters. Thomas, 4 Gcreenlactf 341, the question was whether the will of Joseph Thomas was revoked, he having devised part of his real estate to his daughter, and the residue to his two sons, whom he also made residuary legatees, and afterwards having in his lifetime sold and conveyed the same to one of the sons by deed. The Supreme Court, on appeal, held: The alienation of real estate by the testator, after he has devised the same by will, is a revocation of the will, only as to the part thus alienated. The will being suffered to remain .uncancelled, evinces that his intention was unchanged with respect to the other property devised or bequeathed. See Wogan v. Small, 11 Ser. & R. 141. A man seized of two tracts of land, nearly equal -in value, and possessed of personal estate, devised one tract of land to one child, and the other to the family of the other child, and gave a pecuniary legacy .to a bastard grandchild. He after-wards sold one of the tracts and incurred debts which swept away the other, and died, leaving no more estate .than was sufficient to pay his debts and the legacy to his illegitimate grandchild. Held, .that these circumstances did not amount to an implied revocation of .his whole will. In Jones v. Hartley, 2 Whar. 103, it was held, that a conveyance in trust, for the payment of the debts of the grantor, and then to revert to him, is not such a disposition of the estate .as to revoke a previous will. The court say, “Being then a compíete alienation of the real estate, after the date of the will, it is a revocation of the will, so far as it relates to the property thus conveyed.” See also, to the same effect, 3 Bin. 498, Coates v. Hughes, 1 Whar. 246; 2 Vern. 720; 2 P. Wms. 333, Rider v. Wager.

In Bridges v. The Dutchess of Chandos, 2 Vesey Jr. 428, the lord chancellor states it as a principle, which is not shaken in authority, that any new disposition made subsequent to the will, or in other words, any conveyance of that which had been conveyed by the will, shall defeat the will; but then it must be a conveyance of the whole estate, it must extend as far as that appointment which the will has made; for if it be but a part, it affects the will no farther than that part goes. In this case, part only of the property devised and bequeathed is disposed of; consequently those parts of the will which remain are untouched. There is no impossibility, as in Cooper’s Estate, 4 Barr, to give effect to the disposition of the will. In Marshall v. Marshall, 1 Jones 430, it is held, that when the alteration in the testator’s circumstances is sueh as to render it impossible to execute any part of his will, as in Cooper v. Cooper, it will be considered as entirely revoked. But when it can b.e partially executed, the revocation is pro tanto merely as to that part which cannot be carried into effect. The same point was ruled at Pittsburgh at the last session. For these reasons, the judgment of the Orphans’ Court, decreeing an intestacy, must be reversed.

It being then a revocation pro tanto only, it will be necessary for this court to ascertain the effect of the alienation of the real estate on the different provisions of the will.

The general rule is, that when, after making a will, the testator executes any legal conveyance of the devised property, the will is revoked. This is well established by authority. Lord Harwich says, in Sparrow v. Hardcastle, 3 Atk. 799, that the estate being gone by the conveyance, the will has lost the subject of its operation. The law requires that the same interest which the testator had when he made the will, should continue to be the same interest, and remain unaltered to his death. The least alteration in that interest is a revocation: Roberts on Wills 219; Powell on Devises 377; id. 548; Lovelass on Wills 352; 4 Kent’s Com. 528; 3 Atk. 748, Parsons v. Freeman; 6 Vesey 199; 3 Johns. Ch. 156; 5 id. 450, Minuse v. Cox; 7 id. 267. Under the authorities cited, it is not disputed that the devise of the real estate to Stephen and Paul Balliet is revoked by the Sale and conveyance of the estate to them by the testator. The will, so far as respects the real estate, has nothing to operate upon, and therefore, for this and the other reasons given above, the alienation is a revocation of the devise.

The devise of the real estate, being revoked by the sale and conveyance of the real estate, the next and important question is, what is the effect on the legacies of $30,000 given by the testator to his sister, and his brothers and sisters’ children; and this depends on the fact whether those legacies are made payable by the devisees, Stephen and Paul Balliet, out of that fund, and the personal estate exempted and exonerated from it. All the authorities agree that when a legacy is payable exclusively out of a particular fund, by a particular person, a disposition of that fund, in the lifetime, is taken to be an ademption of the legacy. The distinction is taken between a. specific, a pecuniary, and a demonstrative legacy. In the former it is adeemed, in the latter it is not.

A legacy of quantity is ordinarily a general legacy; but there are legacies of quantity in the nature of specific legacies, as of so much money with reference to a particular fund for payment. This kind of legacy is called a demonstrative legacy, and it is so far general, and differs in effect so far from one properly specific, that if the fund be called in or fail, the legatee will not be deprived of his legacy, but be permitted to receive it out of the general assets: 2 Williams’ Ex’rs. 740. Ademption does not apply to demonstrative legacies, i. e. to legacies of so much money with reference merely to a particular fund for payment. Courts are averse to construing legacies to be specific, and the intention of the testator that they should be must be clear. The principle, I agree, which has the greatest influence on the determination of the question, and which has been uniformly supported by all the cases, is, that it is not enough for the testator to have charged his real estate with, or in any manner devoted it to the payment of his debts and legacies. The rule of construction is such as aims at finding not that the real estate is charged, but that the personal estate is discharged. In other words, it is not by an intention to charge the real estate, but by a plain intention to discharge the personal estate, that the question is to be decided: 2 Williams’ Ex’rs. 1050, citing 1 Mer. 220, 230. Test this case by the principles adverted to, and which are conceded to be specific or demonstrative legacies. The objects of the testator’s bounty were the wife of the testator; 2d, his brothers^ and sisters’ children, six families, and Stephen and Paul Balliet, his grand-nephews. After providing what he esteemed a comfortable provision for his wife, since dead, he devised his whole real estate to his two grandrnephews, Stephen and Paul Balliet, with a pecuniary legacy, as a residuary bequest, not exceeding the sum of $20,000. By the construction put upon the will by the Orphans’ Court, these devisees get nothing. In the will, as it originally stood, they were entitled to real estate on certain conditions, and to the personal estate, not exceeding a certain amount, absolutely. The real and personal estates are kept separate and distinct. It is not the case of two funds blended into one, as the provisions of the will abundantly show. The legacies are given to his brothers in the same language, payable as hereinafter specified, with the exception of the bequest to his sister Magdalena of $5000, to be paid on the following conditions and, in the following manner. The legacies being to be paid as afterwards specified, or on the following conditions, which I take to be the same thing, we must resort to another part of the will to ascertain how and by whom they are to be paid. By the phrase payable as hereinafter specified, I understand a designation of the fund out of which the legacies are to be paid, and by whom payable, is intended. And this appears in the next item, where the testator says, “I give and devise all that messuage, tenement, or tract of land (describing it) to Stephen Balliet and Paul Balliet, sons of my nephew Stephen Balliet, their heirs and assigns for ever, as tenants in common, and not as joint tenants, charged and chargeable nevertheless, with the furnishing, delivering, and payment yearly of the articles and interest hereinbefore bequeathed to my said wife, and the sum of $30,000 hereinbefore bequeathed to my sister, and the issue of my deceased brothers and sisters.”

The testator, in the next item, after specifying certain real estate not before disposed of, which he devises to Stephen and Paul, and some bank stock, bequeathed all the rest, residue and remainder of his estate, effects, and property, of whatsoever kind and wheresoever situate, to the said Stephen Balliet, Jr., and Paul Balliet, and their heirs and assigns for ever, to be equally divided between them; provided, nevertheless, and his will expressly is, that in case the residue of his personal estate shall exceed the sum of $20,000, the excess or overplus above $20,000 shall be rateably applied to the six legacies, of $5000 each, hereinbefore given to his sister, and the issue of his deceased brothers and sisters. The distinctions between a specific and pecuniary legacy, and a specific and demonstrative legacy, are sometimes very nice, and, perhaps, this is a case of that description. The plan of the will generally seems to have been to give to his two nephews, who would appear to be the principal objects of his bounty, his whole real estate on certain conditions, that is, they paying certain specified sums of money to other persons specifically named in the will. He also bequeaths to them the residue of his estate, not exceeding $20,000. This is so plain, that had not other disposition been made of part of his estate in his lifetime, there would have been no difficulty in the distribution of it.. Had the sale or conveyance of the specific devise been made by a stranger, it would be somewhat difficult to believe he thereby intended to deprive his two favorite nephews of all interest whatever in his estate; the necessary effect of considering the legacies of $30,000 as subsisting legacies, and not adeemed. It does not, however, strike me that the persons to whom it is conveyed, viz. Stephen and Paul Balliet, can alter the case. At least, the argument on that fact, with evidence of the value of the property, is too uncertain to make it the groundwork of a judicial decision. So, also, if the legatees of-the $20,000 under the residuary clause, had been other than they were, it would strike me as unjust that the legatees first named should come upon the personal estate devoted to other persons, on failure of the fund to which they ought to look for payment. 'Much less ought they to be permitted to destroy or impair the right of those who were principally in the view of the testator. It is very possible that the testator was unaware of the effect to be produced by the sale of his real estate; and if he had, it may be probable that he would have altered the provisions of the will so as to suit the altered circumstances. But such conjectures (for they are nothing more) are not to be regarded. We must determine the case on fixed and settled principles. On the whole case, we have (not without hesitation) come to the conclusion that the sale and conveyance of the real estate (it being the fund out of which only the legacies were to be paid) was in law an ademption of the legacies charged on that part of the estate.

By the account settled by the executors, it appears that the personal estate amounts to $26,988.47. In what manner is that to be distributed, is the remaining question. In the opinion of the court, $20,000 is in the first place to be paid Stephen Balliet, Jr., and Paul Balliet, to be equally divided between them. By the proviso, their legacy is not to exceed that sum. It directs that the excess or overplus shall be rateably applied to the six legacies of $5000 each, given to his sister and the issue of his deceased brothers and sisters. In this respect, we think the intention is clear; and as effect can be given to this part of the will, without interfering with the rights of others, we are pleased to give it this construction.

The Court decrees distribution to be made accordingly.