Burnham v. Comfort , 44 N.Y. Sup. Ct. 216 ( 1885 )

BoabdmaN, J.:

If the testator had given the plaintiff a legacy of $500 instead of the devise of land stated in the will, the payment made by him May 14, 1864, to plaintiff, would have adeemed or satisfied the legacy. Ve may, therefore, pass by or disregard all authorities-founded upon satisfaction of legacies.

It cannot be treated as a case of advancement because that is allowed only in case of intestacy. (1 R. S. [Edm. ed., 105], p. *754, § 23 4 Kent’s Com., pp. *418, 419 ; Thompson v. Carmichael, 3 Sandf. Ch., 120.) Here the property was wholly disposed of by will, and no right reserved therein, as in Langdon v. Astor's Exrs. (16 N. Y., 1), to qualify or modify any of its provisions. The transaction between the plaintiff and her father has no element of estoppel in favor of the defendant. The latter was in no sense a party to the-act done. He parted with nothing. His property was not affected thereby, and he did no act relying upon the acts or declarations of the plaintiff or her father. (Winegar v. Fowler, 82 N. Y., 315.) If the receipt of plaintiff may be treated as a contract with the testator, it dogs not enure to the benefit of the defendant. He was not a party to it and acquired no rights under it. All it provided for was this; that plaintiff could not claim as a matter of right any further recognition, but if her father saw fit to allow her to receive greater favors under his will, the contract did not forbid it.

The question then comes down to this, was the devise to plaintiff, satisfied by the payment of the $500, in May, 1864? There is no logical reason why a money payment ought not to satisfy a devise as well as a legacy where such was the purpose and intent of the-parties as here. But so far as authorities can be found they are hostile to such a doctrine. The case of Davys v. Boucher (3 Young & Collier [Exch.], 397, etc.) states that the principle of ademption by subsequent portion has not been applied to devises of real estate. That authority has been often recognized as correct. Bouvier, in his Law Dictionary, says “ an advancement will not be considered an ademption where the devise is of real estate.” In 2 Redfield on Wills, 441, Danys v. Boucher is cited with approval on this subject. So, also, in 2 Williams on Executors (5th Am. ed., 1202, or 7th London ed., 1335). The same principle is also sustained in Weston v. Johnson (48 Ind., 1), again citing Drnys v. Bouoher. Other cases are cited by respondent’s counsel to the same effect, but as they are not accessible to me, I cannot verify them. The authorities are abundant to show that satisfaction applies only to legacies. (Willard on Exrs. 351; Bouv. Law Dic., Ademption; Landon v. Astor's Exrs. 16 N. Y., 1; S. C., 3 Duer, 541; 1 Roper on Legacies, 365.)

In the case under consideration the testator retained the absolute legal right to give the plaintiff the real estate in controversy notwithstanding the arrangement of May 14, 1864. If his will had been made after that date, no doubt could exist óf the validity of the devise. But the will made in 1863 continued to exist in the same form as it now is until the death of the testator in 1879, a period of fifteen years. We must presume the testator knew the consequence of such act and intended it. The will speaks as of the date of the testator’s death and not of the date of its execution. The fact, that the provision for the plaintiff remained unrevoked for so many years, must be some and perhaps strong evidence of the testator’s intention that plaintiff should have the land as originally given to her by the will.

Wills of real estate and wills of personal estate are now executed with the same formalities. Formerly it was otherwise, and far ■greater importance was attached to a will of real estate. The provisions of a will of persona: property might be anticipated, but not so in case of wills of real estate. Besides, upon proof of a will of real estate the title passes by virtue of the devise in the will contained. It is a written title of record, when the will has been probated. If such title could be attacked by parol proof of acts and declarations of the testator and others in hostility to the terms of the will, title to lands might be put in great jeopardy. Yery likely such considerations may have contributed to establish the legal principle applicable to this case, that a devise of land cannot be satisfied by the payment of money eyen where both parties to the transaction so intend. This of course does not touch contracts made between a parent and child for the benefit of and to be enforced by other children. Such contracts stand on quite a different basis.

The judgment must be affirmed, with costs.

HaRdiN, P. J., concurred.