ADEMPTION (Lat. ademptio, from adimere, to take away). The extinction or withholding of a legacy in consequence of some _act of the testator which, though not directly a revocation of the bequest, is eon sidered in law as equivalent thereto, or in dicative of an intention to revoke.
2. The question of ademption of a general legacy depends entirely upon the intention of the testator, as inferred from his acts un der the rules established in law. Where the relations of the parties are such that the legacy is, in law, considered as a portion, an advancement during the life of the testator will be presumed an ademption, at least, to the extent of the amount advanced, 5 Myth() & C. Ch. 29 ; 3 Hare, Ch. 509 ; 10 Ala. N. s. 72 ; 12 Leigh, Va. 1; and see 3 Clark & F. Hou. L. 154 ; 18 Yes. Ch. 151, 153 ; but not where the advancement and portion are not ejusdem generis, 1 Brown, Ch. 555 ; 1 Roper, Leg. 375; or where the advancement is con tingent and the portion certain, 2 Atk. Ch. 493; 3 Mylne & C. Ch. 374 ; or where the advancement is expressed to be in lieu of, or compensation for, an interest, 1 Ves. Ch. 257 or where the bequest is of uncertain amount, 15 Yes. Ch. 513 ; 4 Brown, Ch. 494; hut see 2 Hou. L. Cas. 131; or where the legacy is absolute and the advancement for life merely, 2 Ves. sen. Ch. 38 ; 7 lies. Ch. 516 ; or where the devise is of real estate. 3 Younge & C. Exch. 397.
But where the testator was not a parent of the legatee, nor standing in loco parentis, the legacy is not to be held a portion, and the rule as to ademption does not apply, 2 Mare, Ch. 424; 2 Story, Eq. Jur. 0 1117, except
where there is a bequest for a particular pur pose and money is advanced by the testator for the same purpose. 2 Brown, Ch. 166 ; 7 lies. Ch. 516; 1 2: all & B. Ch. Ir. 303 ; see 3 Atk. Ch. 181; 6 Sim. Ch. 528; 3 Mylne & C. 359; 2 P. Will. Ch. 140; 1 Pars. Eq. Cas. Penn. 139 ; 15 Pick. Mass. 133; 1 Roper, Leg. c. 6.
3. The ademption of a specific legacy is effected by the extinction of the thing or fund, without regard to the testator's inten tion, 3 Brown, eh. 432; 2 Cox, Ch. 182 ; 3 Watts, Penn. 338 ; 1 Roper, Leg. 329 ; and see 6 Pick. Mass. 48 ; 14 id. 318; 16 id. 133 ; 2 Halst. N. J. 414; but not where the extinc tion of the specific thing is by act of law and a new thing takes its place, Forr. Exch. 226; Anabl. Ch. 59; or where a breach of trust has been committed or any trick or device practised with a view to defeat the specific legacy, 2 Vern. Ch., Rathby ed. 748 n.; 8 Sim. Ch. 171; or where the fund remains the same in substance, with some unimportant altera tions, 1 Cox, Ch. 427 ; 3 Brown, Ch. 416 ; 3 Mylne & K. Ch. 296; or where the testator lends the fund on condition of its being re placed. 2 Brown, Ch. 113.
Republication of a will may prevent the effect of what would otherwise cause an ademption. 1 Roper, Leg. 351.