The ademption of a specific legacy is effect ed by the extinction of the thing or fund, as it is generally stated, without regard to the testator's intention ; 3 Bro. C. C. 432 ; 2 Cox, Ch. 182 ; Blackstone v. Blackstone, 3 Watts (Pa.) 338, 27 Am. Dec. 359 ; and see White v. Winchester, 6 Pick. (Mass.) 48; Richards v. Humphreys, 15 Pick. (Mass.) 133; Stout v. Hart, 7 N. J. L. 414; Bell's Estate, 8 Pa. Co. Ct. 454; but not where the extinction of the specific thing is by act of law and a new thing takes its place ; Ambl. 59 ; 9 Hare 666; Cas. temp. Talbot 226; Walton v. Walton, 7 Johns. Ch. 258, 11 Am. Dec. 456; but see 4 C. P. D. 336; Kay & J. 341; [1906] 2 Ch. 480; and note thereon in 20 Harv. L. Rev. 239. The last cited case is rather a departure from the rule of the cases cited supra as to extinction of the legacy by act of law which does not rest on intention, but see Mahoney v.1 Holt, 19 R. I. 660, 36 Atl. 1, where the sup posed intention of the testator was held to require the substitution of a money equiv alent for certain stock bequeathed. Where a breach of trust has been committed or any, trick or device practised with a view to de-i feat the specific legacy; 8 Sim. 171; or where the fund remains the same in sub stance, with some unimportant alterations; 1 Cox, Ch. 427 ; 3 Bro. C. C. 416 ; 3 M. & K. 296 ; Havens v. Havens, 1 Sandf. Ch. (N. Y.), 334 ; Ford v. Ford, 23 212 ; as a lease of ground rent for 99 years after a devise of it ; Eberhardt v. Perolin, 49 N. J. Eq. 570, 25 Atl. 511; or where the testator lends the fund on condition of its being re placed; 2 Bro. C. C. 113. A devise of a lease hold estate is adeemed if the lease expire and is renewed; 1 Bro. C. C. 261; 2 Ves. 418 ; 16 Ves. 197; 2 Atk. 593 ; or where it is assigned upon other trusts ; 22 Beay. 223; but a bequest of an interest in profits of a firm is not lost by the expiration and renewal of the partnership agreement ; Amb. 260. A specific legacy is not adeemed by a pledge of the subject; 3 Bro. C. C. 108 ; 3 Myl. & K. 358 ; but the legatee is entitled to have it redeemed ; id. A specific legacy of a debt due testator from a third party is adeemed by its payment; 2 P. Wms. 328 ; 3 C. C. 431; 2 id. 108 ; 2 Cox C. C. 180; Ludlam's Estate, 1 Pars. Eq. (Pa.) 116 ; or partially to the extent of part payment ; Gardner v. Printup, 2 Barb. (N. Y.) 83 ; but not by sub stitution of a new security or a change in its form; Ford v. Ford, 23 N. H. 212; New Hampshire Bank v. Willard, 10 N. H. 210 ; Dunham v. Dey, 15 Johns. (N. Y.) 555, 8 Am. Dec. 282. But courts have been astute to construe a legacy to be demonstrative, if possible, to avoid an ademption ; Walton v. Walton, 7 Johns. Ch. (N. Y.) 258, 11 Am. Dec. 456. See infra, subhead Demonstrative Leg acies.
But when a mortgage specifically bequeath ed was foreclosed and a new bond and mortgage taken from the purchaser, and a memorandum was found after testator's death in his handwriting to the effect that it was but a renewal of the old bond and that it was his intention that it should pass to the legatee, there was held an ademption ; Beck v. McGillis, 9 Barb. (N. Y.) 35. In this case the hardship and defeat of intention was admitted, but it was considered that the rule could not be relaxed that if the subject of a specific legacy did not exist at the death of the testator it was adeemed and nothing else could be substituted.
A legacy of stock is adeemed by its sale though testator purchased back an equal amount of similar but not identical securi ties ; 1 Myl. & K. 12.
The removal of goods from a place named in the legacy will work an ademption ; 1 Bio. C. C. 129, n.; 3 Madd. 276 ; 21 Beay. 548 ; contra, 27 Beay. 138 ; and it makes no differ ence if the removal was because a lease had expired ; 6 Sim. 19. Ademption is not worked by a mere temporary or accidental removal ; 4 Bro. C. C. 537 ; or for repairs ; 2 De G. & Sm. 425 ; or "for a necessary purpose," or on account of fire ; 1 Ves. 271.
In the case of demonstrative legacies, to be paid out of a particular fund pointed out, there is no ademption, and if the fund does not exist, they are payable from the general assets ; Armstrong's Appeal, 63 Pa. 312 ; Gid dings v. Seward, 16 N. Y. 365 ; 4 Hare, 276 ; 1 P. Wms. 777; Walton v. Walton, 7 Johns. Ch. (N. Y.) 258, 11 Am. Dec. 456 ; T. Raym. 335 ; 2 Bro. C. C. 114 ; Kenaday v. Sinnott, 179 U. S. 606, 21 Sup. Ct. 233, 45 L. Ed. 339 ; Ives v. Canby, 48 Fed. 718 ; Gelbach v. Shive ly, 67 Md. 498, 10 Atl. 247. The statement that the testator's intention has no bearing on the question of the ademption of specific legacies, made in 2 Cox 180, has been so fre quently repeated as to be commonly accepted as a rule of decision ; but, as remarked by Chancellor Kent in Walton v. Walton, 7 Johns. Ch. (N. Y.) 258, these words are to be taken with considerable qualification. It is certainly true that when it is necessary to la bel the legacy as general or specific, which is necessarily done in the case of demonstrative legacies, the question of intention is material and in 2 Ves. Jr. 639, Lord Loughborough makes the matter of intention the criterion, and there are few cases in which it is not discussed. In Kenaday v. Sinnott, 179 U. S. 606, 21 Sup. Ct. 233, 45 L. Ed. 339, it was said that "the ademption of a specific legacy is effected by the extinction of the thing or fund bequeathed, and the intention that the legacy should fail is presumed" ; but there a legacy to the wife of deposits in a bank "amounting to $10,000 more or less" was held not adeemed by purchasing bonds after the will was made, reducing the amount in bank, and the wife was awarded the amount of the legacy, which was held to be demonstrative upon the "manifest general intention of the testator" as shown by the whole will.
The courts lean against holding that there is an ademption unless the intention is clear ly shown, and, to avoid it, favor the construc tion of a legacy as demonstrative rather than specific ; Norris v. Thomson's Ex'rs, 16 N. J. Eq. 218 ; Cogdell's Ex'rs v. Cogdell's Heirs, 3 Desaus. (S. C.) 373 ; In re Foote, 22 Pick. (Mass.) 302 ; Bradford v. Haynes, 20 Me. 105 ; Boardman v. Boardman, 4 Allen (Mass.) 179; 8 Ves. 413; Appeal of Ballet, 14 Pa. 461. See 11 Am. Dec. 470, note.
Republication of a will may prevent the effect of what would otherwise work an ademption: 1 Rop. Leg. 351.
A specific legacy which has been adeemed will not be revived by a republication of the will after the ademption ; Trustees of Uni tarian Society in Harvard v. Tufts, 151 Mass. 76, 23 N. E. 1006, 7 L. R. A. 390. See LEG ACY; ADVANCEMENT; GIFT ; 37 Am. Dec. 667, note.