Hoke v. Herman

• Decision Date: 01 June 1853
• Citation: 21 Pa. 301
• Parties: Hoke versus Herman.
• Court: Pennsylvania Supreme Court

Page 301

21 Pa. 301

Hoke versus Herman.

Supreme Court of Pennsylvania.

ERROR to the Common Pleas of York county.

Campbell, for plaintiff in error.—The decisions as to whether, in cases of ademption, the intention of the testator is to be considered, are not consistent. The declaration of Lord THURLOW that the animus adimendi has nothing to do in a question of ademption, has not been universally received: 2 Halst. 423; 7 Johns. Ch. 264. In the civil law, ademption was a question of intention: Just. Lib. 2 tit. 20; Id. Lib. 32 tit. 3. That the ademption depends on intention, reference was also made to 2 Peere Wms. 332; 2 Ves. 640, Coleman v. Coleman; 2 Halst. 425.

It was said that if the change of the thing devised be produced by statute or operation of law, or without the assent of the testator, the legacy will not be adeemed: Partridge v. Partridge, Cases Temp. Talbot 266; 7 John. Ch. 266, Walton v. Walton; 1 Roper on Leg. 240. The unauthorized act of an agent of the testator will not alter the will or affect an ademption: 8 Sim. 171, Basan v. Brandon; 11 Con. Eng. Ch. Rep. 380: Or if done by the testator under a mistake of fact: 3 Ves. 321, Campbell v. French. In the present case, the act of settling and crediting was done, not by the testator, but by the committee. It was said, that the thing bequeathed being not in whole or in part in existence was not a sufficient reason why the legatee should not receive the value of his legacy out of the general funds of the estate.

Mayer, with whom was Evans, contrà.—The legacy in this case is specific, and the note bequeathed has been received by the plaintiff; but it is alleged that the note devised has not been received in the condition it might have been but for the settlement and credit. "The principle of ademption by receiving the thing given is certainly that the thing given no longer exists; for if after the receipt of it, it could be demanded, that would be converting it into a pecuniary instead of a specific legacy:" Sir WILLIAM GRANT in Fries v. Morris, 13 Ves. 361. Much of the confusion in the books upon this subject, arises from a mixing up of the inquiry as to the character of the legacy with the question of ademption, the intention being very material to determine whether the legacy be specific or not, but having little to do with the question of ademption itself. In Blackstone v. Blackstone, 3 Watts 338, GIBSON, C. J., lays down the law thus: "That the annihilation of a specific legacy, or such a change in its state as makes it another thing, annuls the bequest, for reasons paramount to considerations of intention, is now firmly settled: Sleech v. Thornington, 2 Ves. 561; Drinkwater v. Falconer, Ib. 623; Humphreys v. Humphreys, 2 Cox 184; and Birch v. Baker, Mosely 373." "The principle," says Mr. J. COULTER, in Ludlam's Estate, 1 Harris 188, "depends upon the entire change or destruction of the fund, security, or chattel specifically bequeathed." Walls v. Stewart, 4 Harris 275.

The case of Basan v. Brandon, 8 Sim. 171, cited by the plaintiff, is one in which the corpus of the gift, the fund on which the will was to operate, could easily be identified, although it had undergone a change of form. The stock purchased without authority with the money given to the legatee was treated as his.

The case of Campbell v. French, 3 Ves. 321, cited next, stands on different principles. Mr. Sumner adds in a note to the case: "If a man by a subsequent will or codicil, makes a disposition different from a former one, under a false impression, the impulse of which is the foundation of his wish to change his former intent, such an act will be considered only as effecting a contingent presumptive revocation, depending on the existence or non-existence of that fact. 1 Williams Ex'ors 93; 1 Hagg. 378."

But in this case the portion of the note to which the credit was applied is extinguished. The adjustment between the plaintiff and the committee of the lunatic was proper. The note to the testator was then due. The payment cannot be recalled: 2 Rawle 118; 1 Id. 54; 9 Watts 462; 1 Barr 24.

But the plaintiff had no title to the note till after the death of the testator. His interest accrued at the time the interest of the other legatees became vested in them. He had no interest in the chose at the time the credit was given. Its value at the death of the testator was the value of the legacy.

If the plaintiff was entitled to receive the value of his legacy out of the general estate, this would be changing its character from a specific to a general or a demonstrative legacy.

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 $178.63 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...