Kramer v. Kramer

• Decision Date: 23 November 1912
• Docket Number: 2,416.
• Citation: 201 F. 248
• Parties: KRAMER v. KRAMER. SAME v. KRAMER et al.
• Court: U.S. Court of Appeals — Fifth Circuit

201 F. 248

KRAMER v. KRAMER.

SAME v. KRAMER et al.

No. 2,416.

United States Court of Appeals, Fifth Circuit.

November 23, 1912

P. H Brewster, of Atlanta, Ga., and Sidney Holderness, of Carrollton, Ga., for appellant and cross-appellee.

Edgar Watkins, of Atlanta, Ga. (Watkins & Latimer, of Atlanta, Ga on the brief), for appellee and cross-appellant.

Before PARDEE and SHELBY, Circuit Judges, and MEEK, District Judge.

SHELBY Circuit Judge.

This is an appeal and cross-appeal from a decree of the District Court construing the will of Ernest G. Kramer. The controversy is between Ruth Kramer, the widow and a legatee of the testator, and Ernest W. Kramer, the only child and also a legatee of the testator. There are many assignments of error on the appeal and cross-appeal, but we are of the opinion that none of them is well taken, except the first assignment on the appeal. For convenience of reference, the will is copied in the margin. ^[1] By the first item of his will the testator bequeathed to his wife, Ruth Kramer, real estate and many articles of personal property, and the item contains the following words:

'Also the sum of ten thousand dollars to be realized out of the proceeds of such life insurance as may be of force on my life at the time of my death.'

It appears from the record that there were, at the time the will was made and at the time the testator died, policies on his life to the amount of $15,000. One of these policies was in the Royal Arcanum, a fraternal insurance order, for the sum of $3,000. After the making of the will, the testator had the beneficiary named in the $3,000 policy changed, making it payable to his wife, Ruth Kramer; and after the death of the testator she collected on this policy $2,630.49. The other policies, amounting to more than $10,000, which, it is assumed, were payable to the estate of the testator, have been collected, and the proceeds are held by Charles A. Lyle, the executor named in the will. Ernest W. Kramer, the testator's son, contends that the $10,000 legacy should be credited by the $2,630.49 which Ruth Kramer collected on the Royal Arcanum policy, and that the executor should be allowed to pay her on account of the legacy only $7,369.51. Ruth Kramer contends that the $3,000 policy was a gift from her husband, while in life, to her, and that the legacy is unaffected by the gift, and she is entitled to receive the whole of it.

The question raised by these contentions was decided in the District Court against Ruth Kramer, the court holding that she was entitled only to the remainder of the legacy, after deducting the sum she received on the Royal Arcanum policy. The first assignment of error on the appeal assails the correctness of this ruling.

Ordinarily, a testator who has by his will given his wife $10,000, will not deprive her of any part of the legacy by making gifts to her during his life. If a testator bequeathed to his wife $10,000, and subsequently, before his death, gave her $3,000, on those facts standing alone, no one would assert that her legacy was adeemed or satisfied pro tanto and that she could not claim all of it from her husband's executor.

On the other hand, if a husband bequeaths to his wife '$10,000 in United States bonds, numbered from 1 to 50, inclusive, now in my bank box,' and subsequently, before his death, gives the bonds to his wife, the legacy, on these facts standing alone, is adeemed, and she has no claim against the estate on account of it. It would be the same if he gave the bonds to some one else after making the will and before his death. If no bonds were found in the box or owned by the estate, they could not pass to her by the will. The legacy would be adeemed. It would be adeemed pro tanto, if only a part of the bonds were disposed of in like manner.

In the first instance, the legacy of $10,000 was general, and, the subsequent gift being not at all inconsistent with the legacy, there could be no presumption, from it alone, of ademption or satisfaction pro tanto.

In the second instance, the legacy of the bonds was specific, and the subsequent disposal of them was inconsistent with the legacy. If he gave them to her in life, she could not take them by the will; if he gave them to some one else or disposed of them otherwise before he died, they could not pass to her by the will when it took effect at his death.

In the case at bar, outside of the will itself and the fact of the gift of the testator to his wife, there is no evidence to show with what intent the bequest was made, or with what intent the subsequent gift was made. As the testator did not stand in loco parentis to the legatee (Bennet v. Bennet, 10 Ch.Div. 474, 1 Am. & Eng.Ency.of Law, 615), it is contended by the appellant that there can be no presumption that the testator, by giving his wife $3,000, intended to lessen the amount given her by his will.

The result of deducting the amount of the gift from the legacy can be reached logically and legally only by holding that: (a) As matter of law, ademption has occurred pro tanto; (b)or that the equitable doctrine of satisfaction is applicable; (c) or that the record and the will, properly construed, show that it was the intention of the testator that the subsequent gift should be a payment pro tanto of the legacy.

Ademption of a specific legacy is the extinction or withdrawal of it in consequence of some act of the testator equivalent to its revocation, or clearly indicative of an intention to revoke. The ademption is effected by the extinction of the thing or fund bequeathed, or by a disposition of it subsequent to the will, which prevents its passing by the will, from which an intention that the legacy should fail is presumed. Kenaday v. Sinnott, 179 U.S. 606, 617, 21 Sup.Ct. 233, 45 L.Ed. 339; Ford v. Ford, 23 N.H. (3 Foster) 212. The Georgia statute differs but little, if at all, from the general law on the subject:

'A legacy is adeemed or destroyed, wholly or in part, whenever the testator, after making his will during his life, delivers over the property or pays the money bequeathed to the legatee, either expressly or by implication, in lieu of the legacy given; or when the testator conveys to another the specific property bequeathed, and does not afterward become possessed of the same, or otherwise places it out of the power of the executor to deliver over the legacy. ' Code of Georgia (1910) Sec. 3908.

The language of this section strongly indicates that by it ademption is confined to specific legacies. The words, 'delivers over the property or pays the money,' indicate that the legacy designated certain property or certain money; so, also, the words, 'when the testator conveys to another the specific property,' and 'places it out of the power of the executor to deliver the legacy.'

Usually, in states where the common law prevails, in the absence of a statute to the contrary, legacies are either general, demonstrative, or specific. Without attempting all-embracing definitions, which are difficult and often unsatisfactory, it may be said that: (1) A general legacy is a bequest chargeable upon the general estate, and not so given as to be distinguishable from other parts of the estate of the same kind; or it is one of a quantity merely, and includes all bequests not demonstrative or specific. Kelly v. Richardson, 100 Ala. 584, 13 So. 785. (2) A demonstrative legacy is a bequest of a thing or money not specified or distinguished from all others of the same kind, but payable out of a designated fund. Myers' Ex'rs v. Myers, 33 Ala. 85; Kenaday v. Sinnott, 179 U.S. 606, 618, 21 Sup.Ct. 233, 45 L.Ed. 339. (3) A specific legacy is a bequest of a particular thing or money specified and distinguished from all others of the same kind. Gilmer v. Gilmer, 42 Ala. 9, 16; Kenaday v. Sinnott, supra. Each of the three kinds of legacies is distinguished from the others by the incidents which attach to them respectively.

We are at present concerned only with ascertaining to which of the three classes of legacies the one in question belongs, and whether or not it is subject to the doctrine of ademption. It is a bequest of 'the sum of ten thousand dollars to be realized out of the proceeds of such life insurance as may be of force on my life at the time of my death. ' It is a legacy of a certain sum, to be paid out of, and made a charge on, the proceeds of life insurance policies. A bequest of a certain sum, with direction that it be paid out of a particular fund, is a demonstrative legacy. Merriam v. Merriam, 80 Minn. 254, 83 N.W. 162; Harper v. Bibb, 47 Ala. 547; Kelly v. Richardson, supra; Blair v. Scribner, 67 N.J.Eq. 583, 60 A. 211; Ives v. Canby (C.C.) 48 F. 718. This view seems to be recognized as correct by the Supreme Court, for it quotes with approval:

'If a legacy be given, with reference to a particular fund only, as pointing out a convenient mode of payment, it is to be construed as demonstrative, and the legatee will not be disappointed, though the fund wholly fail. ' Kenaday v. Sinnott, supra, 179 U.S. 619, 21 Sup.Ct. 238, 45 L.Ed. 339.

In some of the cases, general and demonstrative legacies are referred to, without noticing a distinction between them. In such cases, as in the instant case, the important question being whether or not the legacy considered is a specific legacy, the usually recognized difference between general and demonstrative legacies is of no great importance.

In Byrne v. Hume, 86 Mich. 546, 49 N.W. 576, it was held that a bequest to the father and mother of the testator of a legacy, to be paid out of the testator's life insurance as soon as collected, is 'a general legacy,' payable out of the general assets of the estate if the insurance is not collected. And in Re...