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follows : 1st Payments of money by the testator to the legatees,
evidenced by simple receipts. 2d. Payments evidenced by receipts
which are expressed to be in full or in part, of distributive shares
of testator's estate. 3d. Ordinary notes given by several of the
legatees to the testator. 4th. Papers in the form of notes under
seal, by which the legatee promises to pay to the testator one day
after date, " $1,200 in gold, included in the will paid, and $1,300
in currency, in full for that much, without interest,'' upon each of
which is the following indorsement by the testator : *' I give of the
within note to my son [naming him] in part of my estate of the
late will and testament, and dated 8th December, 1871." 5th.
Papers in which the legatee signing acknowledges the receipt of a
specified sum of money from the testator, "in full of my distribu-
tive share of the estate of my said father, and I hereby renounce
and forever relinquish to the other heirs at law, devisees and lega-
tees of Bannister Allen, my father, when their rights shall accrue,
all claims, by inheritance or otherwise, to any part of said estate,
and I bind myself, my heirs, executors and administrators, for the
complete fulfillment of the above, in consideration of said sum of
$2,000 received by me ; " the only difference in the papers belong-
ing to this class being that in some of them the interest is not re-
linquished "to the other heirs," etc., as in the one above set out.
but contain a simple relinquishment of ''all claims, by inherit-
ance or otherwise, to any part of such estate." 6th. Papers
in which Mrs. Watson and Mrs. McCalla acknowledge the
receipt of certain sums of money from the testator, in considera-
tion whereof they renounce all claim to the lands devised to them
by the testator.

The questions are: Whether these transactions shall operate aa
ademptions of the legacies given in the will. If so, whether they
adeem only the pecuniary legacies of specific amounts, or the inter-

Digitized by



Allen V. Allen.

est which each of the legatees may be entitled to under the residu-
ary clause also. What effect the papers purporting to release the
interests of several of the legatees shall have^ and what effect the
jmpers executed by Mrs. Watson and Mrs. McCalla shall have.

1'he general rule upon the subject of the ademption of legacies is
that where a father or one who has placed himself in loco parentis
gives a legacy to a child, or one toward whom he has assumed such
a relationship, he is understood to give a portion, and in conse-
quence of the leaning of the courts against double portions, if the
parent afterward advances a portion to such child, the presumption
is that it was intended as a satisfaction of the legacy, either in
whole or in part, as the case may be, and the legacy is adeemed pro
fanto. But in case of a legacy to a stranger (and in this respect
even grandchildren are regarded as strangers); no such presump-
tion arises, and unless there is proof showing that the subsequent
advance was intended as a satisfaction of the legacy there will be
no ademption and the legatee will be entitled to both. Bx parte
Pyey 18 Ves. 140; Ewharditon v. Richardson^ Dud. Eq. 184. The
question of ademption is a question of intention; as is well said in
one of the cases, "intention is of the very essence of ademption."
Thus, where the legacy is from a parent to a child, or from one
who has assumed that relationship to the legatee, the intention to
adeem is presumed merely from the relationship, and in the absence
of any evidence to the contrary, such presumption is conclusive of
the intention. But where no such relationship exists, then no such
presumption arises, and the intention becomes a matter of proof for
which purpose extrinsic evidence may be resorted to, not for the
purpose of showing an intention to revoke or alter any portion of
the will, but as is fully shown in the cases, for the purpose of show-
ing what was the intention of the testator in making the subse-
quent advance or payment — whether he intended it to operate as
a satisfaction of the legacy or as an additional bounty to the legatee.
Shudal V. Jekylly 2 Atk. 516; Rosewell v. Bennett 3 id. 77; Kirk v.
EddoweSy 3 Hare, 509 ; Richards v. Humphrey s^ 15 Pick. 133 ; Oil-
ham V. Cltancellor, 43 Miss. 437; s. c, 5 Am. Rep. 498. The case
of Richards v. Humphreys was in some of its aspects very much
like the case now under consideration, and will be found full and
instructive. In that case, a brother, by his will, gave a legacy of
$500 to his sister, who was a married woman, and afterward at her
request, advanced her something over 1400 to aid her in the pur-

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NOVEMBEU TEBM, 1879. 719

Allen v. Allen.

chase of land, taking her receipt therefor^ in whicli it. was ^tat0d,
*' that the money was given in part payment of the dowry given, her
in his will." The court held that this showed that the payment was
made on account of the legacy, and that it was therefore adeems
to the extent of the amount paid. In that case the court used this
language : '^ Ademption takes effect not from the act of the legatee
in releasing or receiving satisfaction of the legacy, but solely from
tho will and act of the testator in making such payment or. satis-
faction or substituting a different act of bounty, which is shown by
competent proof to be intended as such payment, satisfaction or
substitute." Hence it makes no difference that the legatee was, at
the time of receiving the payment, under the disability of coverture
or infancy, as the ademption depends solely upon the will of the
testator and not upon the ability of the legatee to give a valid dis-
charge. It is very true that it has been held that no presumption of
an intention to adeem arises where tho bequest is of a residuum or
of an interest therein, even where the bequest is from a person standi
mg in tho relation of parent to the legatee, and this because a
residuum or an interest therein can never be regarded as a
portion, strictly speaking, inasmuch as the amount is necessarily
of an uncertain character, and hence the presumption against double
portions does not arise. Farnham v. Phillips, 2 Atk. 215 ; Free-
mantle \. Banks, 5 Ves. 85. But if, as we have seen, the question
of ademption is a question of intention, we are unable to perceive
any good reason why, where the proof shows an intention to adeem,
not only a pecuniary legacy, but also an interest in the i*esidue,
such intention should not be allowed full effect. We have not been
able to find any case in which an interest in the residue has been
held to be adeemed by a subsequent advance, but we do find
that in the case of Lady Thynne v. Earl of Olengall, 2 H. L. Cas.
131, upon a full re\iew of tho authorities, it was held that a bequest
of a residue will, according to its amount, be a satisfaction of a por-
tion, either in full or pro tanto, as the case maybe, and it is difficult
to understand how, upon the same principle, we can avoid holding
that a portion by settlement or otherwise shall in like manner be
a satisfaction of a previous bequest of a residue to the extent that
the former may cover the latter. We think therefore that where
the evidence shows such to be the intention, an interest in the resi-
due, as well as the general pecuniary legacy, may be adeemed by a
subsequent advance of money to the legatee.


by Google


Allen y. Allen.

It would seem that upon the same principles, devises of real estate
oaght likewise to be adeemed (if such a term can, with any pro-
priety, be applied to devises) by subsequent jmyments to the devisees
with the intention of producing that result ; but it is conceded tliiit
the doctrine of ademption has never been applied to devises of real
estate, and in the absence of any authority, we do not feel justified
in disregarding the well-established line which has for ages beeu
drawn between real and personal estate, even though we may be
thereby compelled to thwart tlie obvious intention of the testator
and disturb that distribution of his property which he thought was
proper and just to his descendants. For while the intention of the
testator is the cardinal rule of construction of a will, yet such in-
tention cannot be given effect where it is in conflict with the rules
of law. A devise of real estate cannot, like a pecuniary legacy, be
affected by any subsequent transactions between the testator and
the devisee, but must stand until it is i*evoked or altered in the
manner prescribed by law. The papei*s signed by Mrs. Watson and
Mrs. McCalla cannot therefore operate, as they were doubtless in-
tended, as ademptions of the devises to these ladies ; they cannot,
as we shall presently see, have any effect as releases, and they can-
not operate to adeem the interest of these devises in the residuum,
for they were not so intended by the testator, but on the contrary,
are expressly declared to be intended for a different pui-pose, which
as we have seen, must fail because in conflict with an established
rule of law. Nor can they be treated as advancements, for the doc-
trine of advancements applies only in case of intestacy, or where,
as in Manning v. Manning, 12 Rich. Eq. 410, the testator in his
will has directed that property given to his children in his life-time
should be accounted for by them. Here however there is no such
direction in the will, and to give the transactions evidenced by these
papers the effect of advancements would in effect be an alteration
of the will without the formalities required by law for such a par-

The next inquiry is as to tlie effect of the receipts in which some
of the legatees have undertaken to release their interests in the es-
tate of the testator during his life-time. We agree with the Circuit
judge that so far as they purport to be releases of any interest in the
estate they are absolutely void, and it is scarcely necessary to add any
thing to what he has said upon the subject. It may be true ths^
in equity a release of a mere naked possibility or expectancy of an

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NOVEMBER TERM, 1879. 721

Allen V. Allen.

heir to his ancestor's estate, or of a legatee of an interest under the
will of a person then living, if founded npon a valuable considera-
tion, might be carried into effect after the death of such ancestor
or testator as a right acquired under a contract (2 Story's Eq. Jur^
§ 1040 b) ; but certainly without such consideration it would be
a nullity. Morris v. Burroughs^ 1 Atk. 399. In this case it
is not pretended that there was any consideration for the so-
called releases, as between the parties who signed them and the
other heirs, devisees and legatees of the testator, and it could not
be said that there was any valuable consideration passing between
the testator himself and those who undertook to release, for the testa-
tor having up to the time of his death, absolute testamentary power
over all of his property, could by a simple stroke of his pen have
effected the very same objects by revoking any legacy or devise in
his will. Hence these classes are in our opinion absolute nullities,
as well those which purport to relinquish " to the other heirs," etc.,
as those which do not purport to relinquish to any particular per-
son or persons, and can only have effect as acknowledgments of the
receipt of so much money on account of interests in the estate.
The cases which have been cited to sustain the validity of these
releases, Xociytfr v. Savage, 2 Str. 947; Ives v. Medtcalf, 1 Atk. 63;
Blunden v. Barker, 1 P. Wms. 639; Cox v. Belitha, 2 id. 272, and
others of that class, prove on examination to be cases arising under
the custom of London, by which a man's testamentary power did
not extend to the whole of his personal estate unless he died leav-
ing neither wife nor child. If he left a wife and children, his per-
sonal estate was divisible into three equal parts, one of whicht
called the orphanage part, went to the children, another to the
widow, and a third part was at his own disposal. 1 Wms. on Exrs.
2, 3; Heron v. Heron, 2 Atk. 160. Inasmuch therefore as the
father could not by his will deprive his child of an equal share in
what was called the orphanage part, a release by the child to the
parent of his interest in such orphanage part, in consideration of
the payment of a sum of money, has been sustained in the cases
above mentioned as a transaction based upon a valuable considera-
tion, because there the parent acquired something — the right to
dispose of the child's share of the orphanage part — in exchange
for the money paid to the child, while here, where there is no such
restriction upon the testamentary power, it is very manifest that a
parent obtains nothing by such a transaction, and it cannot be sup-
VoL. XXXVI— 91

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Alleu V. Allen.

posed that he pays his money in consideration of obtaining a right
which he already enjoys.

We conclude then, that so far as papers of the first class are con
cerned — ordinary receipts — they will or will not be i-egarded as
ademptions of legacies pro ianto accordingly as the evidence
adduced may show the intention of the testator; that as to papers
in the second class = — receipts which are expressed to be in fall or
in part of distributive shares or interests in the testatoi*'s estate —
they will, without further evidence, be regarded as ademptions of
legacies, residuary as well as pecuniary, to the extent of the amounts
mentioned therein, as they bear upon their face evidence that such
was the intention of the testator; that as to papers in the third
class — ordinary notes — they are to be regarded as assets of the
testator's estate, to be accounted for by the executor, and not as
ademptions of legacies; that as to papers of the fourth class —
l)apers in the form of notes promising to pay $1,200 in gold, in-
cluded in the will, paid, etc., — they arc to be regarded as ademp-
tions of legacies, residuary as well as pecuniary, without further
evidence, as the terms in which they were written, taken in connec-
tion with tlie indorsements made thereon by the testator, satisfy us
that such was his intention; that as to the papers in the fifth class

— releases as they are called — they are nullities, except so far as
they acknowledge the receipt of specific sums of money, and that
they are to be regarded as ademptions of legacies, residuary as well
as pecuniary, to the extent of the amounts so specified; and that as
to the sixth class — pai>ers signed by Mrs. Watson and Mrs. McCalla

— they are to be regarded as nullities. We think, also, that the
indorsement made by the testator on the letter of Joseph N". Brown,
acknowledging the receipt of a note and a small amount in our-
i-ency, as guardian of James B. Allen, is sufficient evidence of
the intention of the testator to thereby adeem not only the pecu-
niary legacy to J. B. Allen, but also his interest in the residue j[?ro
tantOy and that the gift of the note was sufficiently efusclem generis
to bring it within the rule as to ademptions of legacies. Richard^
sou V. Richardson, Dud. Eq. 194-5.

The only remaining inquiry is as to the manner in which the
residue of the estate is to be divided — whether per stirpes or per
capita. The language of the residuary clause is as follows: ^' It is
my will, and I hereby direct, that all my estate, not hereinbefore
disposed of, be converted into money by the sale of the real and

Digitized by


NOVEMBER TERM, 1879. 723

Alleo V. Allen.

personal property, and by the collection of all the debts due td me,
as far as possible, and that the proceeds be equally distributed
among my heirs-at-law, share and share alike.**

The general rule is that where there is a gift to a class of per-
sons, without any direction as to the proportions in which the
individuals of the class are to take, all who can bring themselves
within the class are entitled to participate in the distribution, which
must be per capita. But where the gift is to a class, the individuals
of which can only be ascertained by a resort to the statute of dis-
tributions, then the provisions of the statute must also be resorted
to for the piirpose of ascertaining the proportions in which the do-
nees are to take, unless, in the instrument by which the gift is
made, a difiPerent rule of distribution shall be prescribed. Temple^
ton V. Walker, 3 Rich. Eq. 543. If therefore the gift is to a class of
persons designated as heirs of a particular person, .then, as it is
necessary to resort to tlio statute to ascertain who are the individu-
als composing the class, resort must also be had to the statute to
determine how or in what proportions such individuals shall take.
This is upon the presumption that the donor having, by implica-
tion at least, referred to the statute as to the persons who are to
take, also intended that reference should be had to the statute to
determine the proportions in which they should take, unless he ex-
presses a different intention. But when he prescribes a different
mode of distribution, then no such presumption can arise, and the
distribution must be made in the manner prescribed. Thus when,
as in Freeman v. Knight, 2 Ired. Eq. 72, the testator directed that
certain personal property " should be sold and the proceeds equally
divided between my legal heirs," it was held that though a resort
to the statute was necessary, in order to ascertain who were the
persons embraced in the class to whom the bequest was made, there
was no such necessity to refer to the statute to ascertain the mode
of distribution, because the testator had himself determined that
by directing an equal division, and hence the proceeds of sale should
be distributed amongst the widow and children and the children of
predeceased children, per capita and not per stirpes. In the case
now under consideration the words are, if any thing, stronger, for
here the provision is that the proceeds shall be equally divided,
share and share alike. It is difficult to conceive what language the
testator could have used better adapted to prescribe the mode of
distribution, and we do not feel justified in substituting for the de»

Digitized by



Allen T. Allen.

clared will of the testator a mode of distribution by which one of
his heirs — grandchild — should receive only a fractional part of an
equal share^ when the testator has expressly directed that each of
his heirs shall receive an equal share, and that all shall share alike.
The case of Collier v. Collier, 3 Rich. £q. 555, does not in our opinion
conflict with these views. There the testator, after giving various
bequests to his wife and children by their names, and to his grand-
children by classes, designating them as children of a deceased
child, viz. : **To my son John's children,^ and " to my son Wil-
liam's children," as well as a bequest to his grandson Oliver, who
was one of John's children, directed that the residue of his estate
'^be equally divided amongst all my above-named heirs,'' and it was
held that the residue must be divided per stirpes and not per oapitcLy
notwithstanding the word "equally." But this conclusion was
reached by the court only because, as they say, " it seems to us that
upon the whole will, and particularly by the manner and the
amount of the several primary gifts to his son John's children, to
his son William's children, to his daughter Margaret, his daughter
Sophia and to his other children, and by the phrase * above-named
heirs,' the testator signified his purpose that his ^ son John's chil-
dren ' shall be one of his heirs, his * son William's children ' shall
be one of his heirs, and each of his own children one of his heirs;
and that the words of equality are satisfied by equal distribution
amongst those of the same degree, according to the statute. The
testator's grandson Oliver is represented to be a son of John, anr'
will it be urged that testator intended Oliver to take two full equ&.
shares ?" Here there are no such considerations to control the sig-
nification of the words "equally "and "share and share alike," and
we must therefore give them their usual signification.

The judgment of the Circuit Court, except as modified herein,
is affirmed, and the case is remanded to that court for such fur*
ther proceedings as may be necessary.

Judgment affirmed and cause remamded.

WnxABD^ 0. J^ concurred.

Digitized by







Hall v. Hall.

(Oe Tex. 804.)

Marriage ^- note by husband to fo(fe,

\ note execated bj husband to wife for the separate mone/s of the wife lent to
the husband is valid.*

ACTION on note. The opinion states the point The plaintifF
had judgment below.

Turner (S Lisconiby for plaintiff in error.

George Lane and W. S N. A. Steadman, for defendant in error.

B0KKBR9 A. J. The first and second errors assigned in this
case present the question of the power of the hnsband to make to
the wife a yalid and binding promissory note, in consideration of
money, her separate property, loaned to him.

•To same eOeoC, MeCampbtU r, McCampbeU (3 Lea, 061), 81 Am. Bep. 6M.

Digitized by



Hall T. Hall.

It is nofc contended that such an instrument would be binding at
common law.

Under our system however tlie legal existence of the wife is not
so merged in tliat of the husband as to destroy her separate prop-
erty rights. Besides the privileges she enjoyed under the modifi-
cation of the civil law which came to us through Mexico prior to
tlic admission of Texas into the Union, we had in our first State
Constitution an express provision that "all property, both real and
pereonal, of the wife, owned or claimed by her before marriage, and
that acquired afterward by gift,' devise or descent, shall be her sep-
arate property ; and laws shall be passed more clearly defining the
rights of the wife in relation jus well to her separate property as
that held in common with her husband." Const 1845, art 7, § 19.

That she could own property in her own right, both separate and
common or community with her husband, has become the settled
policy of this State, Jis shown by similar provisions in all her subse-
quent Constitutions and by statute. Paschal's Dig., arts. 1003,
4G4I, 4C42; Rev. Stat., art. 2851.

It has been repeatedly held by this court that the wife's separate
j)roperty, so long as it can be traced, remains such, whatever
changes it may undergo; that the husband may make a gift or
grant of the community or of his separate proj>erty direct to the
wife without the intervention of a trustee; and that if property be
purchased with community funds and the deed taken in the name
of the wife, the presumption that the property remains community
may be rebutted by proof of the intention of the husband to thereoy
make it her separate property. Bose v. Houston^ 11 Tex. 326;
Fitts v. Fitts, 14 id. 448; Story v. Marshall, 24 id. 305; l^ith v.
Boqtiet, 27 id. 507; Higyins v. Johnson's Heirs, 20 id. 389.

In Price r. Cole, 35 Tex. 4G1, this court has virtually decided
the precise question that a note and mortgage given by the hus-
band to the wife are valid and binding instruments.

Our statute gives the husband the right to control the separate
property of the wife. Paschal's Dig., art. 4641. Under a statute
giving the wife separate property rights substantially as ours,
except that she could " release to her husband the right to control
her property," it was decided that a promissory note given by the
husband to the wife for borrowed money was valid. Webster v.
Webster, 58 Me. 139; 8. c, 4 Am. Rep. 253.

We are of the opinion that the note here sued upon, given by M,

Digitized by


TYLER TERM, 1879. 727

Kessler ▼. Draub.

J. Hail, senior, to his wife, Julia B. Hall, in consideration of her
separate money loaned to him, is a valid and binding contract, and
that it was sucli a declaration of his intention that the principal
and interest, both which are expressly promised to be paid by the
terms of the note, should remain her separate property, that it
should have this effect.

[Omitting other questions.]

Kessler v. Dbaub.

(51 Tear. 575.)

Homestead — removal of family,

A homestead right, once duly acquired by a man as head of a family, ia not
lost by the sabsequent death, marriage or removal of all the family but

Online LibraryIrving Browne Isaac Grant ThompsonThe American reports: containing all decisions of general ..., Volume 36 → online text (page 80 of 123)