Tanton v. Keller

47 N.E. 376, 167 Ill. 129, 1897 Ill. LEXIS 2349

• Court: Illinois Supreme Court
• Decided: June 8, 1897
• Status: Published

Opinion

Mr. Chief Justice Magruder

delivered the opinion of the court:

By the fourth clause of his will the testator, John Tanton, gave to the children of his daughter, Mary E. Keller, one-half of his personal property which might remain for distribution when the estate should be settled, “less the sum of §2409.55 and compound interest thereon at the rate of eight per cent per annum from the sixth day of June, 1887, which shall be deducted therefrom and paid to my son, T. O. Tanton.” The clause then proceeds as follows: “Should their share of my personal estate not equal the said sum of $2409.55 and interest as aforesaid, then my son, T. O. Tanton, shall have a lien on the lands devised to them to secure the payment thereof, and whenever said sum and interest is paid, said T. O. Tanton shall surrender to his sister, said Mary E. Keller, her agreement to him of June 6, 1887.” The fifth clause of the will gives and bequeaths to his son Thomas Oscar Tanton one-lialf of his personal property, which may remain for distribution after the payment of his debts and the settlement of his estate, and directs, “that there be paid to him out of the other half of my estate the sum of $2409.55 with eight per cent compound interest from June 6, 1887, as specified in the fourth clause of this will.” It is claimed by the appellees, that there was here a legacy of $2409.55, etc., given by the will to the appellant, and that, after the execution of the will, there was an ademption of this legacy by the payment to appellant by the testator in his lifetime of the amount of the legacy.

First—The first question in this case is, whether, as matter of law, the provision in the will for the payment to appellant of $2409.55 is such a legacy or gift as can be adeemed.

The term “ademption” literally means removal or extinction. It applies originally to specific legacies.' Where the testator gives or bequeaths a specific article, such as a bale of wool or a piece of cloth, and such article does not exist at the time of his death, there is an ademption of the testamentary bequest. The thing bequeathed may be lost or destroyed during the lifetime of the testator, or he may have sold the same or otherwise disposed of it, or changed its form so as to destroy its identity. Hence it has been said that a legatee will have no title to a specific legacy, unless the thing bequeathed remains in specie, as described in the will, at the testator’s death. So also, if the testator specifically bequeath a debt which is due to him, and before his death he receives payment of the debt from the debtor, the bequest or legacy is adeemed; and this is true, whether the payment is enforced by the testator, or is made voluntarily by the debtor. (2 Williams on Executors, p. 632; 13 Am. & Eng. Ency. of Law, 73, 74; 3 Pomeroy’s Eq. Jur. sec. 1131).

Demonstrative legacies are bequests of sums of money which are not in themselves specific, but are made payable out of a particular fund belonging to the testator. (3 Pomeroy’s Eq. Jur. sec. 1133; 2 Williams on Executors, 632.) The text books say, that the doctrine of ademption does not apply to demonstrative legacies, inasmuch as they are payable out of general assets, if the fund out of which they are payable fails. (3 Pomeroy’s Eq. Jur. 1131; 1 Am. & Eng. Ency. of Law—2d ed.—626; 2 Williams on Executors, 632.)

It is claimed by the appellant in this case, that the bequest of the $2409.55 to the appellant was not a specific legacy, but a demonstrative legacy, upon the alleged ground, that it is payable out of a particular fund, to-wit: one-half of the personal property devised to the appellees as children of Mary E. Keller. Without-entering into any discussion in reference to the distinction between the satisfaction of a legacy and its ademption, or between specific legacies and demonstrative legacies, it is sufficient to say, that the legacy here under consideration was given for a specified purpose. Where a legacy is given for a specified purpose, it is in the nature of a specific legacy; and if such purpose is accomplished by the testator in his lifetime, there is an ademption of the legacy. A legacy of $2500.00 to pay the debt on a chapel, which amounted to about $2100.00, and which the testator himself paid after the making of his will, was held to be thereby adeemed. (Taylor v. Tolen, 38 N. J. Eq. 91.) In Taylor v. Tolen, supra, it was said: “If a testator, who has given by will a legacy for a specified particular purpose, himself afterwards execute the purpose in his lifetime; he is presumed to have intended to cancel the legacy, which is held to be adeemed.” Where a legacy is given expressly to pay a debt and the testator himself after-wards expressly pays off the debt, the legacy is adeemed or satisfied. (1 Am. & Eng. Ency. of Law—2d ed.—619; Pankhurst v. Howell, L. R. 6 Ch. App. 136; Hine v. Hine, 39 Barb. 507).

In the case at bar, it is quite manifest, that the bequest of $2409.55 to the appellant was for the purpose of paying off the obligation assumed by Mary E. Keller to the appellant by her agreement of June 6,1887. Clause 4 expressly directs, that, when the sum of $2409.55 and interest is paid, the appellant shall surrender to his sister the agreement of June 6, 1887. When we recur to that agreement, we find that Jacob M. Keller, the husband of Mary E. Keller, was indebted to the appellant in the sum of $2409.33, and that she, Mary E. Keller, does thereby “promise, covenant and bind myself, heirs, executors and assigns to pay to the said T. O. Tanton, his heirs, executors or assigns, out of the first money, rents or profits which I receive as heir of John Tanton, * * * the just and full sum of $2409.83, with interest at eight per cent,” etc. It is true, that the testator did not owe any such debt to the appellant, but he assumed to discharge the obligation of his daughter to appellant by providing for the payment to him of such obligation in the manner stated in clause 4 of the will as above set forth. Therefore, there is presented here the case of a legacy which is given for a specified purpose. If it appears, that such purpose was accomplished by the testator in his lifetime by the discharge of the obligation of his daughter to her brother as created by the agreement of June 6, 1887, then the bequest or legacy of $2409.55 to the appellant has been adeemed or satisfied.

Second—The next question which arises is a question of fact, and that is, whether or not the legacy of $2409.55 was paid to T. O. Tanton by the testator in the latter’s lifetime. Upon this subject the Appellate Court say in their opinion: “The evidence in the case is somewhat conflicting, but from a fair consideration of it all, we think the court was not in error in finding that John Tanton, the testator, had settled with and paid in full his son shortly before his death the sum of $2409.55, the amount provided for in the will, and that it was done with the intention of satisfying that portion of the will. It was claimed and insisted on by counsel for appellant, that, if the payment was made by the testator as claimed, it was upon the condition that Mary E. Keller should sign a release accepting the provisions of the will on the day of its probate, which they claim she did not do; hence the bequest, they argue, was in full force. It is not so clear from the testimony that such conditions were or were not attached, but we think the court below was justified in finding there were no such conditions as contended for by appellant." We are not disposed to disturb the finding of fact as made by the county, circuit and Appellate Courts upon this question. The witnesses were examined in open court, and the lower courts had a better opportunity than we have of testing the credibility of the witnesses. The payment of the legacy to appellant by the testator in his lifetime is shown by the proven declarations of the testator himself, and by the admissions of appellant as shown by. his own testimony as it appears in this record, and as established by the testimony of other witnesses. The evidence by appellant upon the original trial before the county court, as the same is testified to by the witnesses who then heard what was said, is quite clear to the effect that he received from his father, on or about May 16,1889, a sum very nearly equal to the amount of the legacy now in controversy in payment and discharge of the agreement executed by his sister. Where the payment made by the testator subsequently to the execution of a will is equal to or exceeds the amount of the legacy, it will be deemed a satisfaction or an ademption thereof. Where the amount so paid, or the provision made, is less than the amount of the legacy, it is deemed a satisfaction pro tanto; “and if the difference between the amounts be slight, it may be deemed a complete satisfaction or ademption.” (2 Story’s Eq. Jur. sec. 1111; 1 Am. & Eng. Ency. of Law—2d ed.—617; 13 id. 95). Here, the testimony is to the effect, that, if there was any difference between the amount of the legacy named in the will and the payment made by the testator in 1889, it was not sufficient in amount to repel the presumption of an ademption or satisfaction.

Third—On July 21,1891, the testator executed the first codicil to his will, and therein recites, that such codicil is made by reason of the fact that a daughter had been born to his daughter, Mary E. Keller, since the making of his will. On October 12, 1891, he executed a second codicil to his will, in which he recites that, since the making of the will, he had sold the homestead in El Paso, which was devised to his wife, Hannah Tanton, by the second clause of the will; and he recites, that the object of making the codicil is to give to his wife another piece of property in the place of the homestead so sold. It is claimed by counsel for appellant that, inasmuch as these codicils were added to the will after the payment made by the testator in 1889, there was thereby a re-publication of the will containing the legacy of $2409.55 to the appellant, and that such re-publication of the will amounted to a re-affirmation of such legacy, and showed that a satisfaction or ademption of the legacy was not within the intention of the testator. The law, however, seems to be well settled, that the re-execution of the testator’s will and codicils has no other effect than a re-publication, and does not have the effect of reviving legacies which have been adeemed or satisfied. (13 Am. & Eng. Ency. of Law, 80,91, note 1; Payne v. Parsons, 14 Pick. 318; Langdon v. Astor, 16 N. Y. 57; Ware v. People, 19 Ill. App. 196; Richards v. Humphreys, 15 Pick. 133). The result of all the authorities is, that the re-publication of a will does not revive a legacy which has been adeemed or satisfied,, but only acts upon the will as it exists at the time of the republication, at which time the legacy revoked, adeemed or satisfied forms no part of the will, that is to say, no part of it which is to be carried into execution. “In other words the legacy stands in the will, but it stands there as- a satisfied legacy.” (Howze v. Mallet, 4 Jones’ Eq. 194).

Fourth—It is further contended by appellant that, inasmuch as the testator did not take up or destroy the agreement of Mrs. Keller, dated June 6, 1887, nor cause it to be canceled, he did not intend the money he paid to his son in 1889 to be in satisfaction of the legacy, or of the agreement. There is testimony in the record to the effect that, when the payment in quéstion Avas made by the testator to the appellant in 1889, the agreement was marked paid by the appellant. The appellant denies, that the agreement of June 6, 1887, was so canceled and marked paid, but claims that he made a memorandum upon the agreement to the effect, that he would hand it to bis sister on the day his father’s will should be probated, provided she accepted the will on that day. The lower courts have found against the appellant upon the question as to whether the cancellation of the agreement was absolute or conditional. The proof, however, shows that, after the objections were filed to the eighth item in the appellant’s report, he cut off from the agreement the memorandum which had been made thereon, and destroyed the same. When a person is proved to have destroyed any written instrument, “a presumption will arise, that, if the truth had appeared, it would have been against his interest, and that his conduct is attributable to his knowledge of the circumstances. The general rule is:' Omnia prcesumuntuo- cooitra spoliatorem.” (Winchell v. Edwards, 57 Ill. 41; Downing v. Plate, 90 id. 268). Where one deliberately destroys a written instrument of any kind, “and the contents of such instrument subsequently become a matter of judicial inquiry between the spoliator and an innocent party, the latter will not be required to make strict proof of the contents of such instrument in order to establish a right founded thereon.” (Anderson v. Irwin, 101 Ill. 411). The testator may well have regarded the memorandum made upon the agreement indicating its payment as a sufficient cancellation thereof.

Fifth—It is said, that Mrs. Keller was an interested party, and should not have been permitted to testify in this case. She is not a party to the proceeding. It is a controversy between.the appellees who are the children of Mrs. Keller, and who objected to the item in the report of appellant, on the one side, and the appellant as executor and devisee, on the other side. The one-half of the personal property, donated by the will to the appellees, was insufficient to pay $2409.55, and the sum of $1920.13, mentioned in the eighth item which is objected to, represented all of the one-half of the personal property which belonged to appellees under -the will. The question is between appellees and appellant as to whether the sum of $1920.13 shall be appropriated by appellant in the payment of the legacy to him, or whether it belongs to appellees. Mrs. Keller can have no claim upon the amount thus in controversy. If the agreement of June 6, 1887, has not been paid and canceled, the appellant, who has executed a written acceptance of the provisions of the will, must look to the one-half of the personal property belonging to appellees and to a lien upon their real estate in order to reimburse himself. The appellees, and not Mrs. Keller are charged with the payment of the agreement in case it has not been paid. Under the provisions of the will, the appellant has the actual possession and control of the funds out of which he is to be paid.

It is said that, if there was an ademption of the legacy of $2409.55, then that amount, which was to be paid to appellant by the terms of clause 4 of the will, becomes intestate property, and descends one-half thereof to appellant and one-half thereof to Mary E. Keller; and that, thus, Mary E. Keller has an interest which disqualifies her from testifying. We cannot agree with this view. The will, after giving to the appellees one-half of the personal property less the sum of $2409.55 which is to be paid to appellant, uses these words: “Should their share of my personal estate not be equal to said sum of $2409.55 and interest as aforesaid, then my son, T. O. Tanton, shall have a lien on the land devised to them to secure the payment thereof.” The words, “their share,” refer to the one-half of the personal property as being the share of appellees. By the use of the words, “their share,” the testator clearly indicates, that the share of the appellees was one-half of the personal property. We are of the opinion that, in case there was an ademption of the legacy in the manner above stated, the whole of the one-half so bequeathed to appellees, including the amount which was to have been paid to appellant if there had been no ademption, belongs to the appellees and constitutes their share. Therefore the amount freed by the ademption would not be intestate estate, and Mrs. Keller would not be an interested party as being entitled to one-half of it.

Sixth—The point has been made, that the decision of the Appellate Court is final upon the question of fact involved in this case. In Cheney v. Roodhouse, 135 Ill. 257, where a decree and order concerning objections to the report of a guardian had been appealed from, we said (p. 262): “Even the questions of fact involved may properly be reviewed in this court. In the matter of an accounting in the county court by a guardian in respect to his administration of the trust confided to him, the powers of that court are co-extensive with those of a court of chancery, and it possesses a similar jurisdiction, and adopts the same forms and modes of procedure;” and we there held, that the rule, which makes the findings of fact by the Appellate Court conclusive on error or appeal to this court, has no application to chancery cases, in which class of cases this court reviews the evidence as to the facts found; and we also held, that the right to review the evidence should prevail in respect to a statutory proceeding of an accounting by a guardian in the probate court, since such a proceeding is in substance a chancery proceeding. In the case at bar, the case is one which arises out of objections to the final account of an executor; and there is no reason why the same right should not exist as to such an account as well as to a guardian’s account. Inasmuch, therefore, as this proceeding is in the nature of a chancery proceeding, it is allowable for this court to look into the facts. Having done so, we are not satisfied that the conclusions of the lower courts are against the weight of the evidence, and therefore decline to interfere.

If, however, this proceeding be regarded as a proceeding at law, then the judgment of the Appellate Court is conclusive upon the questions of fact; and, as the case was tried before the circuit judge without a jury, and appellant submitted to the court no propositions to be held as law in the decision of the case, there would be, under this view, no question for us to pass upon.

The judgment of the Appellate Court is affirmed.

Judgment affirmed.

Mr. Justice Cartwright took no part.