AD EMPTION (Lat. ademptio, a taking away). The extinction or withholding ot a legacy in consequence of some act of the tes tator which, though not directly a revoca tion of the bequest, is considered in law as equivalent thereto, or indicative of an inten tion to revoke.
It is a distinction between the revocation of a will and the ademption of a legacy that the former cannot be done wholly or partly by words, but parol evidence is admissible to establish the latter ; 2 Tayl. Ey. § 1146; and it may also be rebutted by parol; id. § 1227.
The question of ademption of a general leg acy depends entirely upon the intention of the testator, as inferred from his acts under the rules established in law ; Cowles v. Cowles, 56 Conn. 240, 13 Atl. 414 ; Richards v. Humphreys, 15 Pick. (Mass.) 133. 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 M. & C. 29; 3 Hare 509 ; Roberts v. Weather ford, 10 Ala. 72; Moore v. Hilton, 12 Leigh (Va.) 1; Hansbrough's Ex'rs v. Hooe, 12 Leigh (Va.) 316, 37 Am. Dec. 659; Carmichael v. Lathrop, 108 Mich. 473, 66 N. W. 350, 32 L. R. A. 232 ; and see 3 C. & F. 154; 18 VeS. 151, but this presumption may be rebutted; Jones v. Mason, 5 Rand. (Va.) 577, 16 Am. Dec. 761; and to raise the presumption, the donor must put himself in loco parentis; 2 Bro. C. C. 499. There is no ademption where the advancement and portion are not ejus dem genesis; 1 Bro. C. C. 555 ; or where the advancement is contingent and the portion certain; 2 Atk. 493 ; 3 M. & C. 374; or where the advancement is expressed to be in lieu of, or compensation for, an in terest; 1 Ves. Jr. 257; or where the bequest is of uncertain amount ; 15 Ves. 513; 4 Bro.
C. C. 494 ; but see 2 H. L. Cas. 131; or where the legacy is absolute and the advance ment for life merely ; 2 Ves. 38 ; 7 Ves. 516; or where the devise is of real estate; 3 Y. & C. 397; but in the Virginia case above cited the doctrine was held to apply as well to devises of realty as to bequests of per sonalty ; Hansbrough's Ex'rs v. Hooe, 12
Leigh (Va.) 316, Am. Dec. 659. See Mar shall v. Rench, 3 Del. Ch. 239, where Bates, C., treats this subject in an able opinion.
It was treated as a settled rule in 5 Yes. 79, and in 1 Cox 187, that a residuary be quest to wife or children is never adeemed by an advancement, not being the gift of a portion ; but in some cases there has been a tendency to qualify this doctrine, as also that of requiring the advancement and the legacy to be ejusdem generis, as above stated, and as bearing upon one or both of these points these cases should be consulted; 10 Ves. 1; 15 id. 507; 2 Bro. C. C. 394 ; Car michael v. Lathrop, 108 Mich. 473, 66 N. W. 350, 32 L. R. A. 232 ; and see 10 Harv. L Rev. 52. The doctrine will not be applied to a gift of residue to an adopted child and a stranger jointly ; [1906] 2 Ch. 230; L. R. 7 Ch. App. 670. See note on these cases in 20 Harv. L. Rev. 72.
Where deposits are made in a bank by a father for the use of his daughter and in her name and the passbook is delivered to her, it will not work an ademption of a pecuniary legacy, although deposits are made partly after the execution of the will ; In re Crawford, 113 N. Y. 560, 21 N. E: 692, 5 L. R. A. 71.
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, but a bounty, and the rule as to ademption does not apply ; 2 Hare 424; 2 Story, Eq. Jur. § 1117; Wms. Exrs. 1338; except where there is a bequest for a particular purpose and money is advanced by the testator for the same purpose; 2 Bro. C. C. 166; 1 Ball & B. 303 ; see 6 Sim. 528; 3 M. & C. 359; 2 P. Wms. 140; 1 Pars. Eq. Cas. 139; Richards v. Humphreys, 15 Pick. (Mass.) 133; a legacy of a sum of money to be received in lieu of an interest in a homestead is satisfied by money amounting to the legacy during tes tator's lifetime; Roquet v. Eldridge, 118 Ind. 147, 20 N. E. 733.