Langdon v. Astor

This is a case of the first impression; it is also a case of far more than ordinary importance ; it is so, not merely, nor principally, from the magnitude of the sum in controversy, but far more from the real difficulty and wide application of the questions which it involves : these questions have, by all of us, been diligently examined and considered, but I regret to say that we have been unable to arrive at the same conclusions. A final judgment, however, so far as this court is concerned, will now be pronounced.

The preliminary questions covered by the appeal, we think, were rightly decided at special term. The clause in the first codicil relative to future advancements to be made by the testator for persons or purposes provided for in his will and codicils, we think, ought not to be limited to the provisions in his will, and in the codicil, in which the clause is found, but was intended, and must, therefore, be construed, to embrace all provisions that might be contained in any future addition to his will; it is, therefore, applicable to the bequests in the second codicil. We are also of opinion that the re-execution by the testator of the will and codicils in 1845, amounted in judgment of law to no more than a republication, having no influence whatever on the questions it will be necessary to determine, nor do we think, that those questions are at all affected by the form in which probate was granted; the sentence of the Surrogate must be read in connexion with the evidence on which it was founded, and its true construction, therefore, is, that he admitted the will and codicils to probate upon the proofs before him of their original, as well as of their re-execution. On these points .we all us of agree with the opinion of the judge at special term,

I pass, then, to the- questions which involve the merits of the controversy : These are, whether the bequest made to the plaintiff, in the will, of the income during her life of $100,000 of the city debt, and the similar bequest to her in the second codicil of the income of $100,000 deposited with the Hew York Trust Company, have been, or whether either of them has been, adeemed or satisfied by the advancements subsequently made to her by the testator, and charged by his direction in his books of account?

Although the words “ademption” and “satisfaction” and the corresponding words “ adeem” and “ satisfy” are frequently used by judges and text-writers as convertible terms, having the same signification, yet, as Hr. Justice Harris (9 Barb. p. 56) has truly observed, each, in its technical application to the provisions of a will,- has a distinct and appropriate meaning; “ ademption,” in its strict sense, being predicable only of specific, and “satisfaction” of general legacies. It is this distinction that I shall be careful to observe throughout this opinion, as I cannot but think, that a good deal of confusion in the argument, and in the application of cases, has arisen from its neglect.

The proper determination of the questions that I have stated, it will be seen hereafter, depends very much upon the construction to be given to those new provisions in the Revised Statutes, by which wills of personal property are required to be executed and attested in the same manner, and are subjected to the same rules, as wills of real estate; but in this, as in many other cases, in order that the new statutory provisions may be properly understood and applied, it is necessary to have a clear understanding of the law, as it previously existed. The first inquiry, therefore, upon which I propose to enter is, whether, independent of the provisions in the revised statutes, and also of the special clause in the first codicil, relative to advancements, the transfer of stocks made by the testator to W. Bv Astor, in trust for the plaintiff, would be held to be an ademption or satisfaction of the legacies in question, or of either of them.

It is one of the grounds of the decision, at special term, that without any reference to the special clause relative to advancements, or to the charges in the books, the legacies to the plaintiff were, in fact, discharged by the testator in his lifetime, by the transfer which he made of the stocks, which they embrace, or of stocks of equivalent value, in trust for her and her children ; in other words, that the satisfaction of the legacies in question was a necessary legal consequence of the transfer, and whether the judgment at special term can be sustained upon this ground we are, therefore, forced to consider. But admitting, as I certainly believe, that ultimately the case will be found to depend, exclusively, upon the validity or construction of the special clause relative to advancements, it is still material to inquire into the state of the law as it existed when the revised statutes were adopted, as well as into the effect of the new statutory provisions. If the doctrine, which has prevailed in courts of equity in England, that a gift from a parent to a child is a satisfaction, in whole or in part, of a prior bequest, was then in force, and has not been abrogated, the validity of a clause which merely restricts the effect of future advancements is, perhaps, scarcely liable to dispute; while upon the contrary supposition, we may find ourselves obliged to hold that it is illegal and void. The inquiry, therefore, has been rightly considered, both by the judge at special term and by the counsel of the parties, to lie at the foundation of the whole discussion.

In order to determine the question which it involves, the true character of the legacies in question, as general or specific, must first be ascertained; if specific, and the identical stocks (considering for the present the deposit in the Trust Company

It follows from the definition of a general legacy, that it is not necessarily extinguished by a subsequent gift from the testator to the legatee of an equal or greater amount or value; the legacy and the gift are entirely consistent; the latter may have been intended as a bounty as well as the former. The gift may be retained, and the legacy still be discharged from the general assets; its discharge by anticipation is no more a necessary consequence of a gift from the testator than of a similar gift from a stranger.

Hence, if the legacies now in question are general, there is an evident fallacy in the assertion that the plaintiff can have no title to the relief which she seeks, because the very stocks bequeathed to her were delivered by the testator in his lifetime to a trustee for her benefit. It may be true, that stocks corresponding with the description of those bequeathed were so delivered, but it is just as true, that stocks equally corresponding with this description, may have been embraced in a trust created for her benefit by a stranger; the creation of such a trust, however, is no more a necessary bar to the relief which she seeks, in the actual case, than in the case I have supposed. If the legacies, as general, are a charge upon the general personal estate, that estate may still be responsible for their payment.

It is not meant to be denied (assuming for the present that the law upon this subject is unchanged), that when it is proved that in making a subsequent gift, it was the intention of the testator to annul a prior legacy and substitute the gift, a court of equity is bound to carry this intention into effect, by holding the legacy to be satisfied ; all that is now meant to be asserted is, that the question of the satisfaction of a legacy, in every casé in which it . can properly arise, is a question of intention, and of an intention necessary to be established by legal evidence. The vital distinction between the ademption of a spe

From the remarks that have been made, the necessity of fix-' ing the character of the legacies in dispute is believed to be apparent. Both the legacies, in my judgment, are general; they are so from the terms of their creation, and if these are doubtful, they are rendered so by a special provision in the will.

As the legacies differ in their, nature, and in the terms in which they are expressed, they require to be separately considered. The first bequest (that made by the will) is of the income, during life, of $100,000 of the debt of the city, bearing an interest of five per cent., and the question, whether it is general or specific, it may be admitted, is exactly the same as if there had been an absolute gift of the capital, instead of a qualified gift of the income ; it is also a bequest of stock, as certainly as if the debt referred to had been that of this State or of the United States. Every legacy of stocks, which are particularly described, it may, at first, be thought is specific, and as such, confined to stocks, which the testator held at the date of his will, and continued to hold at his decease. The opposite construction, however, must be considered as fully established. Such a legacy, it is settled by many decisions, must be considered as general, unless the intention to render it specific is manifested, by confining it to stocks, then belonging to the testator; it is not rendered specific merely by the fact that stocks answering the description were then owned by him ; it must clearly appear, from the terms of the bequest, that to these, and to these alone, it was intended to apply. (Sibley v. Perry, 7 Ves. 523; Shirley v. Potter, 4 Ves. 748; 1 Roper (by White), 157, 163.) Nor is this to be deemed an arbitrary construction : it is in all cases a reasonable presumption that the testator never meant that his bounty should depend upon the circumstance of his retaining the identical stocks in his possession until his death, and clear evidence to repel this presumption is therefore justly required. I select for illustration two of the leading cases cited by the judicious Roper. In the first (Partridge v. Partridge, Forrest, 226; 1 Roper, 158), the testator bequeathed to his wife, for her life, £1,000 South Sea stock;

It has, however, been insisted, that although the legacies in question, from the terms in which they are expressed, may be held to be general, they are rendered specific by a special clause in the eleventh subdivision of the will, in which the testator provides, “ That in case any of the stocks or funds therein specifically bequeathed should not be in his hands at his decease, the several bequests should be made up by purchases at the expense of his estate, of stocks or funds of the same, or a similar kind.” As this clause, by a provision in the fifth codicil, is extended to bequests made by the codicils, as well as by the will, it is contended that it embraces both the legacies in question ; and in support of the position that its necessary effect was to convert these legacies, if general, into specific, we were referred to the decision of the Vice-Chancellor in Townsend v. Martin (7 Hare, 471), as an express and controlling authority. I do not mean to deny that this special clause may justly be

Before I proceed, it is proper to state what are the consequences of holding a legacy, similar to those in question, to be general. When a legacy relates to stocks, and stocks answer-, ing the description have passed into the hands of the executors, it will be their duty to satisfy the legacy by a transfer, absolute or in trust, according to the direction of the will; if there are no such stocks, they must invest by purchase a corresponding amount, or, when the legacy is absolute, pay an equivalent sum to the legatee. When the legacy refers to a particular debt as the primary fund for its payment, the debt, if unpaid, must be collected, if it has not been paid to the testator, or if not collectable, a sum corresponding with its amount must be paid to the legatee, or be invested for his benefit. Hence every general legacy, as the application of a sum of money may be necessary to its satisfaction, is pecuniary in its nature, and is frequently so denominated (Bishop of Peterborough v. Morlock, 1 Bro. C. C. 565; Fontaine v. Tyler, ut supra), and hence, also, if the legacies in question have not been satisfied, the plaintiff will be entitled to the exact relief sought in her complaint.

II. The next inquiry then is, whether it is, in all cases, a presumption of law, that a general or pecuniary legacy is satisfied by a subsequent gift from the testator to the legatee of an equal or greater amount or value. If the bequest is of money, is it satisfied by a subsequent advance of the sum ? if of stocks, by a transfer of the same or similar stocks ? or by an advance in money equivalent to their value ? without any other proof in each case, of the intent of the testator so to satisfy the legacy, than that which is derived from the gift itself. The necessary reply to the inquiry is, that there is no such general presumption ; but that, on the contrary, the opposite rule is that which

It must certainly be admitted, that for nearly two centuries past, this doctrine has prevailed in the courts of equity in England; the cases are numerous; their import unquestionable ; where the legacy is to a natural child, a subsequent gift, however large the amount, has no effect upon its validity, but when the child is legitimate, the gift ¡n'imá, faoie extinguishes the legacy, and according to many of the cases, such is the effect, even where the advance is much less in amount or value

Let us now apply the principle of that section to the case before us: When it is said that the doctrine, that a prior bequest is extinguished by a subsequent gift, is artificial and arbitrary, the meaning undoubtedly is, that it attributes an intention to the testator, which, in all probability, he never

HI. But I go still further; I deny that the English doctrine was in force in this state when the revised statutes were adopted: I deny that it has been in force, since the common law rules of descent were superseded by those of our own statute. When we examine, with any attention, the reasons on which the English doctrine is founded, we shall be satisfied that it was engrafted by successive Chancellors upon their own law of descent, the law of primogeniture; it springs from the same policy; it is designed to attain the same object; the object, the transmission of estates undiminished from the parent to the eldest son; the policy, by the continuance of estates in the same families, to maintain unbroken the influence and power of the aristocracy of the realm. The eldest son, the favored heir, is usually the residuary legatee, or the legacies to other children are charged upon the lands devised to him; hence, legacies are a deduction from the fortune he would otherwise receive, and it is to prevent a diminution of his estate, and, by the confession of a recent text-writer, “ to remove a burthen from the heir” (Ward on Legacies, p. 256), “that Courts of Equity,.in England, have leaned against double portions,” and to give effect to this leaning have invented and enforced the doctrine in question: It is not denied that it is the moral duty of the parent to make some provision for all his children, but this duty, in respect to daughters and younger sons (and it is to these that the doctrine in its application seems to be limited), is held to be fully discharged by a provision so moderate, as to be, in truth, insignificant and trifling, when compared with the bulk of the estate, which passes to the eldest son: A bequest to a younger son or daughter is presumed to represent all that portion of his estate which the

IY. Let it now, however, be admitted, that this doctrine of the presumed satisfaction of legacies by subsequent gifts from the testator, was in force when the revised statutes were enacted, and was not affected by the duty then imposed upon judges of carrying into effect, in all cases, the actual intention of the testator; the next inquiry then is, whether the doctrine has not been effectually abrogated by those new provisions in the statute of wills, by which wills of personal are placed, in all respects, upon the same footing, and are subjected to the same rules, as those of real estate ? That upon this question a difference of opinion should be found to exist, I frankly own, has excited my surprise as well as regret, since, until the argument of the case before us, it had not occurred to me that any other construction could be given to the provisions of the statute than that which I shall proceed to state.

First. That no will, whether of personal or real estate, shall be valid, unless it shall be signed, attested, arid published in the form and with the solemnities which are prescribed, and which, as known to us all, it is needless now to state. (2 R. S. 63, 4, § 40, 41.) '

Second. That no such will shall be altered or revoked, in whole or in part, except in the cases thereinafter mentioned, unless by an instrument in writing, signed, attested, and published in the same manner as the will itself. (2 R. S. 64, § 42.)

And lastly. They abolish, with no other exception than of the cases specially enumerated and defined, all implied revocations founded upon a presumption of law arising from subsequent events, or subsequent acts of the testator. (§§ 42, 3, 4, 5, 6, 7, 8, pp. 64, 65.)

It is this last proposition only that I understand to be denied, •and the grounds of the denial must therefore be examined. The argument rests upon the following series of propositions, which I extract from the elaborate opinion of the judge at special term:

First. That the provision in § 42 of the revised statutes, is no more in substance than the enactment in the statute of frauds (29 Car. 2), which was made a part of the statute of wills, when first framed in 1787, and is no more, in its present form, exclusive in its terms of all other modes of revocation, than was the original statute. (Opinion of Hr. Justice Sand-ford.)

Second. That it was settled law that the original statutory provision, in its application to wills of real estate, did not prevent virtual revocations of devises implied by presumption of law from subsequent transactions of the testator, or effected by such transactions. (Id.)

And lastly. As a necessary conclusion, that the extension of the original provision, to wills of personal property, cannot have the effect of cutting off or barrihg those implied revocations of legacies by presumption of law that courts of justice had formerly admitted. (Id.)

, But the fatal objection to the entire train of reasoning is, that it starts from false premises. It assumes that § 42, in its present form, is the same in its substance and meaning, as the original provision in the statute of frauds ; it overlooks entirely the significant words, “ except in cases hereinafter mentioned,” and gives the same construction to the section as if those words had never been inserted ; it ignores the fact, that the necessary effect of their insertion is, that the section in its present form, and read in connexion with those that follow, is exclusive in its terms of all other modes of revocation than those which are expressly authorized ; the original provision in the. statute of frauds, as construed, was limited to express revocations; as altered in § 42,- it embraces all revocations, implied as well as express, since otherwise the exception of particular cases of implied revocations would be unmeaning and absurd; these cases are not exceptions at all, unless the general words of the section were meant to be understood, and may be understood, in a sense that would embrace them. As the statute now stands, I cannot but think that it excludes all proof of an express revocation, other than by an instrument in writing, executed with the same formalities as the original will, and all proof of an implied revocation, not referrible to some one of the excepted cases, the cases, which are alone excepted from the general rule, which § 42 declares and establishes. Not only is this the construction which the language of the statutory provisions necessarily suggests, but it is certainly that which those who framed, and (as we are bound to presume) those who adopted the provisions, intended should be given to them. The revisers, in their original note to the sections containing them, after showing, that the doctrine of implied revocations, in the extent to which it had been carried, was not very reasonable or consistent, and in many of its.applications worked great injustice, and after declaring that the new sections which they .proposed were meant to “ dispose of the whole doctrine,” avow their

It has been assumed that the section to which the observations of the revigers were appended, as reported by them, were confined to wills of real estate, and were extended by the Legislature to those of personal, and much stress has been laid upon the fact thus supposed to exist, as throwing light upon the true construction of the statutory provisions. I own, that I am unable to see that the fact has any bearing whatever upon the question of construction, since, were the supposition true, it would still be our duty in this, as in all other cases, to construe the sections, not as they were first reported, but as they were finally enacted. It is not necessary, however, to dispute a conclusion which rests upon a groundless supposition. Upon referring to the original reports of the revisers, and comparing them with the statute, it will be found that the- sections, which embrace the provisions we are considering, were all enacted by the Legislature, in the very words in which they were framed and submitted by the revisers, with no other change than the omission of a single clause in § 44. (2 R. S. pp. 64, 65, 66, §§ 42 to 53, both inclusive.) All the sections as reported applied to wills of personal as well as of real estate. It is needless, then, to inquire into the state of the law upon the subject of implied revocations, as it existed when the revised statutes were adopted, if it was the plain intention of the revisers and of the Legislature to change the whole existing law on that subject, by substituting the rules, which the statute prescribes, for those which had previously obtained.

It is said by one of the ablest and most learned of the Eng

In the observations that have been made, it is assumed that the presumed satisfaction of a legacy by a subsequent gift, is an implied revocation of the provision in the will by which the legacy is given, and I confess my surprise, that this should have been regarded as at all a doubtful and debatable question. I am persuaded that no just definition of an implied revocation can be given, the terms of which will not be found to embrace the case. A will, or a provision in a will, is revoked, in the proper sense of the term, when, although capable of being carried into effect according to its terms, it is rendered inoperative and void by a subsequent change of the mind of the testator, manifested by such evidence as, in the particular ease, the law requires. The revocation is either express or implied; it is express, when the change of mind, the intention of the testator to revoke, is declared by a subsequent will or codicil; it is implied, when the existence of the same intention of the testator is presumed and inferred from a subsequent act or event. The revocation, however, whether express or implied, proceeds equally from a determination of the mind of the testator, the difference consisting only in the nature and form of the evidence by which the determination is proved. To apply: it has never been doubted, that marriage and the birth of a child operate as an implied revocation of a prior will; as such it is

The learned judge who decided this '.case at Special Term, says, that “ it was contended with much show, of sound reasoning, that the ademption of legacies, or their discharge, or satisfaction by subsequent payment made by the testator, although often termed an implied revocation of so much of his will, is really no revocation; that it does not affect the will at all, for its. legal effect is unimpaired.” I am not surprised that the learned judge, not misled by this show of reasoning, elected to place his own decision on other grounds; he doubtless saw, that although there was “ much show,” there was little reality or substance. Strike out the word “ payment” in the passage that has been cited, and substitute “ advance” or “ gift,” and the show of reasoning at once disappears. What is meant by saying, that “ the will is not affected at all,” when a material provision is virtually expunged, and the intention which it expresses entirely defeated, by a subsequent intention, which the law presumes to hate existed in the mind of the testator, I do .not ¡profess to understand; since the assertion might be made

The first case is, where the testator has conveyed lands to a stranger which he has devised in his will; the second, where he has bequeathed a horse by a specific name and description, and subsequently gives the horse to the legatee. It is not to be denied, that in each of these cases, the provision in the will, i. e. the devise or bequest, is prevented from taking effect by a subsequent act of the testator; but in neither, is it defeated by a presumption of law, arising from his act, and the supposition that it is so, I am constrained to say, is a singular error; it confounds cases of “ ademption,” in the strict and proper sense, with those of implied “ satisfaction,” and “ specific” with “general” legacies. In the instances given, the devise and the legacy is, each of them, specific, and is prevented from taking effect, not by an implied revocation, but by a positive ademption; the intention of the testator, as expressed in his will, is not defeated because the law presumes that it was changed, but because he had performed an act which rendered it impossible to carry it into effect. It must be confessed, that these are cases which the legislation of the revised statutes has' not reached; but it is equally certain, that they are cases which no legislation can reach; it is beyond the power of the Legislature, I apprehend, to give effect to a devise or bequest, when, at the death of the testator, there is no longer a subject upon which it can operate. Had all the enormous wealth of Mr. Astor, by successive astonishing reverses of fortune, been •swept away before his death, his intentions, as expressed in his. will, would have been wholly defeated, but I do not imagine it would have occurred to any one to say, that they were defeated by a presumption of law; there would have been no revocation of his will, express or implied, but its provisions would

It might be inferred from the preceding observations, that in England the doctrine of presumptive revocations remains to this day unaltered; the fact, however, is far otherwise. The conviction of jurists and statesmen, that the plain intentions of a testator, as expressed in his will, ought never to be set aside by a mere presumption of their change, nor indeed by any extrinsic proof less authoritative and solemn than that by which the will itself must be established, is manifested as fully in the recent legislation of England as in our own. The new statute of wills (1 Vic. c. 26), the provisions of which apply equally to wills of personal and real estate, after prescribing the solemnities with which every will must be executed, and providing

First. That the legacies in question, $100,000 of city debt, and $100,000 deposited with the Hew York Trust Company, are not specific, but general or pecuniary, legacies.

Second. That as general legacies, they must now .be satisfied from the personal estate of the testator, unless it is shown that they have been satisfied in fact, or by intendment of law, or chave been revoked by an instrument in writing, duly executed and attested.

Third. That the trust created by the testator in his lifetime, for the benefit of the plaintiff, of stocks, corresponding in de

Fourth. That the satisfaction of a general legacy by a subsequent gift or advancement from the testator is in all cases a question of intention, and consequently that the intention of the testator in this case to substitute the trust for the legacies, and thereby revoke the latter, must either be presumed, or be established by legal proof.

Fifth. That' the existence of this intention cannot be presumed unless the doctrine, which formerly prevailed in the courts of equity in England, that a legacy from a parent to a legitimate child is presumed to be satisfied, in whole or in part, by a subsequent gift or advancement from the parent, must be regarded as the law that we are bound to follow.

Sixth. The English doctrine is not that which a court of equity in this State is bound or is at liberty to follow, because,

1st. It is inequitable and arbitrary, and is founded upon artificial reasoning far more likely to defeat than to carry into effect the real intentions of a testator.

2nd. The doctrine, both in'the principle on which it is founded and in the consequences to which it leads, is directly repugnant to the spirit and policy of our republican institutions; it is a graft upon the law of primogeniture, and was invented to sustain the influence and power of an existing aristocracy.

Seventh. If the English doctrine was. ever in force in this State, it has been wholly abolished by those provisions of the revised statutes, by which all implied revocations of a will, or of any part of a will, except in the cases enumerated, are abrogated and forbidden.

Lastly. There is an implied revocation in all cases where a will, or a provision in a will, is rendered inoperative and void by a subsequent intention which the law attributes to a testator, and presumes to have existed. Hence the satisfaction of a legacy founded solely on such a presumption is necessarily an implied revocation.

Y. Considering it, then, as now proved, that the trust creat

But without referring, for the present, to the provisions of the statute, it is a mistake to suppose that it has ever been the law, that a gift or advance which the law would otherwise intend to be an additional bounty, may be converted into the payment or satisfaction of a prior legacy, merely by parole evidence, that such was the intention of the testator. Where the intention accompanies and is a part of the act, as when it is declared to the legatee when the gift is made, and the legatee, with this knowledge, accepts the gift, he is doubtless precluded from claiming the legacy; but unless there has been a formal revocation, it is only by such evidence that his claim to receive the legacy, according to the direction in the will, can

It is, however, insisted on the part of the defendants, that the necessary proof has been given, and that the intention of the testator, that, in the events that have happened, the legacies in question should not take effect, in other words, should be revoked, is clearly and fully declared in the first codicil to his will, the proper execution of which has not been denied, or, if denied, has been established. That this codicil is duly exe

YI. The clause in the first codicil which is relied on as esta blishing, in connexion with the facts proved, the defence set up in the answer, is in these words : “ And inasmuch as I may make advancements or beneficial provisions for persons or purposes, provided for in my will or codicil, it is my direction that such advancements, if charged in my books of account, shall be deemed so much on account of the provision in my will or codicils in favor of such person or purposes.” The argument for the defendant, founded on this clause, may be stated' in few words: The testator (it is .said) has made an advancement of a beneficial provision for the plaintiff, corresponding in its amount with the legacies in question, and for the express purpose, as appears from the charges in his books of account, of satisfying those legacies; his intention, therefore, as expressed in the clause, that the advancement so made should be so much on account of the provision made for the plaintiff in his will and codicil, and should, therefore, operate to extinguish the legacies to which it was meant to apply, and with which it corresponds in value, must be carried into effect. This reasoning, it must be owned, is specious; so much so, that the first impression of all may be (such I confess was my own) that it is satisfactory and conclusive; whether a closer examination will not prove it to be, in reality, fallacious and unsound remains to be seen.

It will be observed that the clause is not a positive declaration, that every advancement made by the testator should be so much on account of any provision in his will or codicils for the person advanced, and consequently should have the effect

Although the opinion which 1 have now expressed, it now appears to me, is not only a plain, but necessary, conclusion from the principles before- established, I own-, that it is not without difficulty that the conclusion has been reached. In my first reflections, I found it difficult to consider the question of revocation disconnected from the fact of the advancement;; it escaped, in a measure, my attention, that although the advancement supplied motives feir a revocation, it did1 not by itself work a revocation; but that the latter, as a distinct fact, was just as necessary .to-be proved" by the-evidence, which the statute requires, as it. would have been, had no advancement preceded it. In all eases, a revocation- proceeds from- motives- which the testator- deems- to be- sufficient, but" it seems evident that in none can the necessity of making the revocation in the mode and form which the statute prescribes, be varied by the nature of the motives from which it proceeds ;; there-is, however, an apparent equity in considering am advancement or subsequent gift as a satisfaction of a prior legacy, wheat such is shown to have been the intention, which is well calculated to mislead ns; and when we believe that such was the object of the testator, we are apt to think that it is of little consequence by what kind of evidence, if satisfactory ism itself, the declaration of his intention is proved ; we are disposed to regard the intention, however proved,as apart of the act, and upon that ground to except its declaration from the requisitions of the statute. This, I am now convinced,, is- a grave- error. When an advancement is not an actual payment, and. does-not necessarily operate as a satisfaction by force of a direction in the will, where, unless proof of an opposite intention is given, the law .will intend it to be a bounty (as is always the case when satisfaction is not presumed), there exist precisely the same

We are told, however—and this,, it appears to-me,.is-the-only answer that has been given,, or attempted to be given,, to the considerations that have been urged—we are told,, that we-have before us only the ordinary case of provisions in a will being rendered liable to be defeated by a condition subsequent ;■ w.e are told, that there is in reality no distinction- between the present case and those- in which it has been held to be a valid condition, that a legacy given by a will shall be diminished in. amount should the legatee-receive an increase of fortune from a stranger, since it must be- quite immaterial whether this increase of fortune, which is to reduce the legacy, proceed from a stranger, or from the testator himself. This last position I admit to be perfectly true, if, in order to give effect to the intentions of the testator as expressed in his will, the fact of a subsequent increase of fortune is the only fact necessary to be proved; but the assertion that the legacies to the plaintiff are to be treated as simply conditional in. the same sense, as in the case chosen for illustration, overlooks a very plain and very material distinction, and, unless I greatly err, to state the dis

Several decisions were referred to upon the hearing by the learned and laborious counsel for the plaintiff, as applicable to the question I am now considering; and among these the leading case of Habergham v. Vincent (2 Ves. Sen. 206, S. C. Brown C. C. 353 ; Bowel on Devises by Jarman, p. 49, note). I think that it was very properly cited, and has a direct and important bearing. The testator in that case devised certain freehold and copyhold estates to trustees, upon trust, to convey the same after payment of certain legacies and debts to a grand-daughter for her life, remainder to her issue in tail, and remainder to such persons, and for such estates as he (the testator) should, by any deed or instrument in wilting, to be executed by him and attested by two of more credible witnesses, appoint. The day after the execution of the will, he executed an instrument in writing attested only by two witnesses, by which he directed his trustees to convey the real estates, after the- death of his grand-daughter and failure of her issue, to his- son in tail,, with remainder to the right heirs of the survivor of the trustees. The controversy related to the validity and operation of this deed, and it was a principal question, whether- a testator could by his own will reserve to himself the power- of disposing of his estates by a testamentary instrument not attested according to the statute. The court decided, that he- could not, and that the deed, so far as it embraced freehold estates,, was wholly void; it could not operate as a devise, since it was- not attested-by three witnesses, as, in relation to wills of real estate, the statute of frauds required; and it could not be upheld as a deed, since, as its purposes were not to take effect until after the death of the testator, it was in its nature- a testamentary instrument (vide also Down v. Taylor, 2 Ch. Ca. 681; Rose v. Cunynghame, 12 Ves. 36; Hooper v. Goodman, 10 Ves. 165). Unless a plain and valid distinction can be- stated between a. reserved power of disposition by an unattested instrument or.paper, and a similar power of revocation, it seems to me, that the judgment in Habergham v. Vincent bears upon, the present-

Some of the remarks made by one of the learned judges in Habergham v. Vincent are exceedingly apposite. He said that the maxim* “ quisqms potest renuncicvri jv/ri pro se intro ducto.could not apply to the case, since the statute requiring three witnesses was not made for the benefit of the testator, but for public purposes, and a testator could not, therefore, say that he would make a will without the requisites prescribed. Our statute in relation to the revocation of wills is just as positive in its terms, and is as certainly founded upon public reasons ; it follows that a testator cannot say that in revoking his will, he will dispense with its provisions. The same learned judge (Wilson, J.) made other very applicable remarks, which in a condensed form I deem it expedient to quote. “ There is a' striking difference,” he said, “ between those cases in which the will refers to an unattested paper then existing, and those in which the reference is to a future intention to be expressed in a future unattested paper; in the first case, the paper referred to becomes a part of the will, with the same effect as if- it were recited in terms; the intention which it expresses, the will therefore adopts and sanctions, so that in giving effect to the paper, the law executes a precise intention mentioned in the will.” But “ when a man declares he will in some future paper do something, he says, he will make a will as far as his intention is then known to himself, but will take time to consider what he will do in future;” hence an intention resulting from such future consideration, if conveyed by-an unattested paper, is inoperative and void. To apply these ' remarks to the present case, had there been a positive declaration in the will, that every future advancement should operate pro .tanto as a revocation of the provisions in the will in favor of the plaintiff, in giving this effect to the proof of an advance

It was admitted upon the argument, that under our present statute no disposition of even personal property to take effect after the death of a testator can be made, except by a will or codicil executed with all the formalities which the statute prescribes ; and it is quite true, that in Johnson v. Ball, the unattested letter, if admitted as legal evidence, would have operated as a disposition of the property to which the bequest related in favor of the plaintiff; but even this circumstance creates in reality no distinction between that case and the present, for it will now be shown that the charges on the testator’s books of account, if admitted to defeat the legacies to the plaintiff, must also, and necessarily, operate as a new disposition of the whole

The revisers, in submitting to the Legislature the revised statute of wills, declared that in their opinion, “ The admission of parole evidence in any case to ascertain the intention of a testator, is contrary to the whole spirit and policy of the statute, and is calculated to let in all the mischiefs which the statutory provisions were framed to prevent. The whole statute proceeds on the principle that the hazard that in some cases the real intentions of the deceased may be violated, and his bounty be intercepted from the persons he designed to share it, is not to be compared with the danger, that the claims of those who otherwise would be entitled by law, may be defeated by fraud and perjury, if any other than the most certain and solemn evidence of intention is permitted to be introduced” (3 R. S. 2d ed. notes of the Rev. p. 633-4). Nearly thirty years have elapsed since these sentiments were written ; the lapse of time and subsequent- experience have not lessened but deepened my personal conviction of their truth and value, and certainly it would be difficult to imagine a case to which they would apply with a more striking emphasis than to that which we are now called upon to decjde. It is a case wholly free from suspicion; all possible suspicions are excluded by the known character of the testator, of the person principally entitled under his will, and of the witness who has chiefly been relied on to establish the defence; it is therefore certain, that by holding that the legacies in question have not been satisfied and revoked, the intention of the testator, at least as to one of them, will be de

I subjoin a brief summary of the train of reasoning which I have attempted to develop, and which I think is sustained throughout by principle and by authority. The legacies in question are general; as general, they were not satisfied merely by the testator’s transfer of stocks of equivalent value to a trustee for the plaintiff’s benefit; nor can the intention of the testator thus to satisfy them be presumed; a presumed satisfaction is an implied revocation, and all implied revocations, other than those excepted in the statute, are abolished; the claims of the plaintiff, therefore, can only be barred by positive and legal evidence of the testator’s intention to satisfy and revoke the legacies; the charges in the testator’s books of account are not such evidence, and by acting upon them as such we should contradict the plain words of the statute and defeat its manifest intent; we should give our sanction to a revocation by parole, or by a writing not executed with the formalities which the statute prescribes. Nor have these entries in the books been made evidence by the direction given by the testa- - tor to his executors in the first codicil to his will; it was not competent to him by such a direction, or by any other means, to create for himself prospectively the power of altering and revoking by an unattested paper any of the provisions in his will or codicil.

The necessary conclusion is, that no legal proof having been

I assent to nearly all the positions that Mr. Justice Duer has advanced. I think he has clearly shown that the legacies in question are general, and that consequently they were not satisfied merely by the transfer made by the testator of stocks of equivalent value; that in the existing state

There are four entries in the testator’s books, in which the stocks transferred in trust are charged; in the first two, they are debited to the trustee ; in the latter two, which bear date

“ Wm. B. Astor in trust for Mrs. Langdon, Dr.

“ For the following stocks transferred to him in trust, as property left to Mrs. Langdon, in similar items, by a codicil of my will, the interest on said stocks being payable to her during her life, and at her death, the interest and principal to her six youngest children now living, in equal proportions-, or the survivor of them as they become of age.”

“To Hew York City Water Stock, &c. . . $100,000

To Hew York Life & Trust Co., &c. . . 100,000”

In his will, the testator bequeaths to the plaintiff {inter alia) the income of “ one hundred thousand dollars of the debt of the city of Hew York, hearing five per cent, interest,” and on her death gives the capital to her then surviving issue; in the second codicil he gives, to the plaintiff during life, the income of “ $100,000, deposited with the Hew York Life and Trust Company and the capital sum, at her death, to her daughters, Eliza, Louisa, and Cecilia,, and to her sons, Walter, Wood-bury, and Eugene, three daughters and three sons, being the six children mentioned in the entry ; and in the same codicil he gives to the same six children “ one hundred thousand dollars of the public debt of the city of Hew York, hearing five per cent, interest, usually called the Water Loan.” The question is whether the testator meant to substitute the $100,000 Water stock, transferred in trust, for the $100,000 of the city debt, of which the income is given to the plaintiff by the will, or for the $100,000 of the debt usually called the Water loan, given to the children by the codicil. We think that it is the last intention that the entries in the books clearly express, and that the words exclude any other interpretation. The following are our reasons:

First. The stocks given by the codicil exactly correspond with those covered by the trust; the “ items” are in all respects “ similarit is true the bequest in the will, like that in the

Second. We cannot believe either that the testator, when he directed the entries to be made, had forgotten that the bequest of $100,000 of city debt was made to the plaintiff by his will, or recollecting the' fact, that he would have referred to that bequest, as made by a codicil. A codicil is frequently, and not improperly, called a will; that is, the term “ will” is frequently and properly used as embracing codicils; but is a will ever called a codicil ? And could a testator, to whom the distinction must have been familiar, have committed this strange mistake ? We think this most improbable, and hardly possible ; besides, the testator refers not merely to a codicil, but to “ a codicil of his will,” thus marking the distinction, and his knowledge of it, at the very time he is supposed to have forgotten it.

Third. The entries speak of the whole property which the trust covers, as left to the plaintiff by one instrument, “ a codicil but the defendants say that only a moiety of the property meant was left by the codicil, the other moiety being given by the will. But if the testator knew and remembered this ; knew that one half of the property was left by his will, the other by a codicil, is it possible to believe he would have used the language that he has ? would have spoken of, the whole as left by one instrument, and that a codicil ? Or must we suppose that he had forgotten that the bequest of the city debt was made by his will, and believed that it was contained in a codicil three years subsequent in date ? believed that he had bequeathed to her the $100,000 city debt at the same time, and in the same codicil in which he bequeathed to her the $100,000 of the Trust Co.’s certificates? This would indeed be a singular failure of memory, a strange hallucination which we cannot believe ever affected the mind of the testator.

Lastly. The memoranda of the testator on the draft of the second codicil, if admitted in evidence, settle the question; they admit but one interpretation, are unambiguous and conclusive ; they say in terms, that the stocks held by Wm.

It is, however, insisted, and has been relied on as a full answer to the considerations that have been stated, that the testator certainly meant to take from the plaintiff, and include in the trust, ¿$100,006 of city debt stock which he had previously left to her; and that no bequest to her of any such stock is to be found except that in the will, to which, therefore, the entries in the books and the trust must be construed to apply, or a plain intention of the testator in the creation of the trust be defeated. How it is quite true, that the language of the testator in the entries, speaking of the $100,000 of Water stock, as left to the plaintiff in a codicil, is inaccurate, since the bequest of the stock in the codicil, is not to the plaintiff, but exclusively to her children; but this circumstance has not shaken our conviction, that it is to this bequest to the children, and not to that to their mother in the will that the entries and the trust were meant to apply; that it was this, and not the other, that the testator meant to satisfy by the advancement. It seems to us, that the error in his language is not difficult to be explained; he may well have considered that which was given to the children, as substantially given to the mother; he may' have considered it as a part of that share of his property, to which he meant that the mother, upon its final distribution, should be entitled; since it is w-ell known that it is upon the principle of regarding what is given to grandchildren as included in the share of their parents that testators frequently regulate the distribution of their estates- We believe that such were the views of the testator, and that he never meant that the trust should cover and satisfy the bequest in the will, which therefore, as unrevoked, must now be satisfied from his estate. Conceding that, if the testator meant to refer to the Water stock mentioned in the codicil, his language, in speaking of stock given to the children as property left to the mother, is inaccurate, it is far more probable that he committed this mistake, than that intending to refer to the bequest in the will, he fell into the strange blunders, that the entries in Ills book thus understood, have been shown to involve. Such blunders would be inexplicable,

Nothing has been said by Hr. Justice Duer in his opinion on the question of election, nor do we think that many remarks are necessary ; we are all of the opinion, as was manifestly that of the judge at special terra, that the doctrine of election has no application to the ease-, if the parole evidence that has been given is admissible at all, it is so to prove the satisfaction of the legacies; if not admissible for that purpose it cannot be received to put the plaintiff to an election. In the English cases in which a subsequent gift is held to be an additional bounty, and not a satisfaction of a prior legacy., and evidence of an opposite intention is therefore excluded, no intimation is to be found that the evidence so excluded may be received for the purpose of putting the legatee to an election, and compelling him to renounce the legacy, or restore the bounty ; indeed it is manifest, that to receive and act upon the evidence for this purpose, would lead to the same result as to

The testator made a will dated July 4th, 1836, which was proved before the Surrogate to have been duly published on the 30th of December, 1836. By the first clause of it, he bequeathed to the plaintiff, for her life, the “income” of certain specified “ stocks, debts, and money,” and among others, “the income of one hundred thousand dollars of the debt of the city .of Hew York, bearing five per cent, interest.” The fourth clause of this will, also bequeathed to Mrs. Rumpff for life the income of several funds specifically enumerated in „ that clause. The eleventh clause, amongst other things, provides, that, “ in case any of the stocks or funds herein specifically bequeathed, should not be in my hands at my decease, the several bequests shall be made up by purchases at the expense of my estate of stocks of the same or a similar kind, and to the same amount at their par value.”

The testator made a codicil to this will, bearing date on the 19th of January, 1838, and which was proved before the Surrogate to have been.duly published by the testator on the day of its date, as, and declared to be, a codicil to his last will and testament. The fourth clause of this codicil provides that, “ if the yearly income of stocks and funds given to my daughters, Mrs. Langdon and Mrs. Rumpff, respectively, shall, in any year, fall short of $15,000, then the deficiency shall be made up from my residuary personal estate remaining in the hands of my executors, but if said deficiency shall arise from any temporary suspension of dividends or income, not occasioned by actual losses in the stocks or funds, then such advances shall be refunded from the excess of income over $15,000 per annum after-wards accruing on such funds.” The eleventh clause of this codicil, among other provisions, contained the following, that is to say: “ And inasmuch as I may make advancements or beneficial provisions, for persons or purposes provided for in my will and codicils, it is my direction that such advance

The testator made a further codicil to his will, bearing date January 9th, 1839, and which was proved before the Surrogate to have been duly published by him on the day of its date, as, and declared to be, a codicil to his last will and testament—iprior to this Mrs. Rumpff and one of the children of Mrs. Langdon died. By a clause of this codicil, the testator bequeathed to his daughter Dorothea, “ the income of $100,000, deposited in the New York Life Insurance and Trust Company," bearing interest at five per cent, per annum, to take and receive the income thereof so1 long during her life as she or her husband, present or future, or any one claiming under them, shall not attempt to incumher, charge, or assign the same, in whole or in partand' in case of any such attempt, then he gave the said income to his executors in trust, during her life, to apply the same to her use, for which her own receipt was declared to be a sufficient voucher; upon her death the capital was to be distributed equally among such of her six children as should survive her. The contingency of either of her children being under age upon the death of the plaintiff, as well as other contingencies, were also provided for. The same “ item” of this codicil to the will has this further provision, viz. “ Also I give to the said six children of my daughter Dorothea, or to such of them as may survive me, $100,000 of the public debt of the city of New York, bearing five per cent, interest (usually called the Water Loan), to be paid to each on their attaining the age of twenty-one years ; and the interest of the shares of those under that age to be accumulated for their benefit until that period; and in case any of them shall die before that age,

The testator made a further codicil to his will, bearing date March 3d, 1841, in the eighth clause of which is a provision in these words, viz. “ And I apply the provisions of the eleventh item of my will to all my codicils, so far as the same can be applied to the subjects thereof.”

The will, each of the codicils heretofore. referred to, and other codicils of different dates, some prior and some subsequent in date to that of the 3d March,1841, were severally and separately republished on the 11th of January, 1845. A new attestation clause was written on each stating, and by it the testator declared, the first instrument dated to be “ his last will and testament,” and each of those of a subsequent date, to ■ be “ a codicil to his last will and testament.”

It will be borne in mind that the only specific funds amounting to one hundred thousand dollars each, the income whereof is bequeathed to Mrs. Langdon for life, either by the will itself or by either of the codicils, are—First, “ One hundred thousand dollars of the debt of the city of Hew York, bearing five per cent, interest.;” Second, “ One hundred thousand dollars, deposited in the Hew York Life Insurance and Trust Company, bearing interest at five per cent, per annum.” The income of the first $100,000 is bequeathed by the will, and of the second $100,000 by the codicil of the 9th of January, 1839.

■ On the -20th of August, 1839, there was charged in the day-book of the testator, and by his special direction, to “ Wm. B. Astor in trust for Mrs. Langdon,” the following stocks, which the day-book entry declared to be “ property left to Mrs. Lang-don, in similar items, by a codicil of my will,” viz.—

Hew York City Water Stocks, five per cents, - $100,000

Hew York Life Ins. and Trust Co. Certificates, five

per cents, - - - - - . - - 100,000

The instrument evidencing the debt of the city is dated the

“ Novr. ,23d, 1840..

“ Mrs. Dorothy Langdon, Dr.

• • “ To Wm. B. Astor, in trust for her, &c.. For-the following stocks, charged said trust account, August 2.0th,. 1839, now handed her, being property bequeathed to- her in. similar items by a codicil of my will; the interest thereon, being payable to her during life, and at her death,, the interest and principal to be paid to her six youngest children now living, or the survivors of them as they become- of age in- equali proportions.

“ Certificate New York City Water Stock, redeemable January 1st, 1858, at five per cent. - - $100;000*

“ New York Life and Trust Company Certificate* redeemable October 1st, 1847, at five per cent.. 100;000

$200,0001’"

“ Tour certificates of stock are in my iron chest, say $100,000 of City Water Stock, $100,000 of Life Insurance, &c. They are in the paper which you gave me. '

J.*J. A.

30th of Nov. 1840.

“ Tour deed for Hyde Park I will send to be recorded at.”

The date of this paper, it will be noted, is seven days subsequent to that of the charge of these stocks to Mrs. Langdon in the testator’s day-book. The deed referred to in the testator’s note of the 30th of November, 1840, and which he promised to send to be recorded, was in fact recorded on the 3d of the subsequent December, the third day after the date of the note. This is not only evidence tending to show that she had the two certificates in her possession at or about the very day they were charged to her, but also that she had knowledge of the facts which they recite, and of such facts as the matters therein recited would naturally lead her to inquire about, and as, on such inquiry, as a matter of course, it may be supposed she would ascertain. The deed, in terms, declared that the property conveyed by it, had been then recently purchased by the testator, that he intended it as a residence for his daughter, the plaintiff, “ and to give the same to her and her herein named children, without computing the same as any part of the provision made for them in the testamentary disposition of my estate Hence it is obvious, as I think, that the plaintiff knew when the two certificates were put in her possession, or before she entered upon the enjoyment of the income, that her father had previously made a will, and the deed assured her that the property was cumulative to that left to her and to her children by the will: The inquiry would naturally arise; Are the income of the $200,000, and the funds themselves, to be computed as any part of the provisions so made for her and them ? The certificate of the Water Stock which had been in her possession, stated that Wm. B. Astor held it in trust for her and her children, “ on condition stated in ledger of the 14th inst.” That

There can be no doubt, on looking at the will and codicils, that he intended to give to the plaintiff, the income of two separate enumerated funds of $100,000 each, bearing interest at five per cent.; looking at these instruments alone he intended to give her the income of only two such items ; if he had not made the transfers in his lifetime, the plaintiff does not pretend to any right tó the income of more than two such funds ;

It is insisted, however, that, if the delivery by the testator to the legatee, in his lifetime, of things similar -in all respects to those bequeathed, as being the things bequeathed, is to be allowed to operate as a satisfaction or ademption of the legacies, then the statute in relation to revoking and cancelling wills will be practically annulled. (2 E. S. 64, §§ 42 to 53.) According to Kirk v. Eddowes, 3 Hare, 518, this is an untenable position: “ The evidence does not touch the will; it proves only that certain transactions took place after the will was made, and calls upon the Court to decide whether the legacies given by the will are not thereby adeemed. Ademption of the legacy, and' not revocation of the will, is the consequence for which the defendant contends, a distinction which is marked by Lord’ Hardwicke, in the case of Roswell v. Bennett (3 Atk. 77).

1st.' Burning, tearing, cancelling, &c. (§ 42.)

2d. Subsequent marriage, issue born, and survivorship of issue, or of a wife. (§ 43.)

3d. Subsequent marriage of an unmarried woman. (§ 44.)

4th. A bond, agreement, or covenant of the testator to. convey. (§ 45.)

4th. A charge or incumbrance upon property devised or bequeathed. (§ 46.)

5th. A conveyance, &c., by which a testator’s interest or estate in property previously devised or bequeathed “ shall be altered but not wholly divested.” (§ 48.)

6th. The subsequent birth of a child, not provided for by the testator in his lifetime, nor in any way mentioned in his will. (§49.)

This completes the list of excepted eases, and does not include the case of a conveyance, deed, or other act of a testator, by which his estate or interest, in property, previously devised or bequeathed by him, shall be wholly divested. The statute is silent as to such a case; yet the subsequent grant of real estate devised, or the absolute disposition of a specific legacy, would in fact be a revocation pro tcmto, and no one, I'presume, would question its validity. I do not understand the statute as affecting any such cases, or as modifying the law as previously settled in relation to the ademption of specific legacies, or the actual satisfaction of general legacies, or as repealing or modifying any pre-existing rule relating thereto. It is insisted, however, that the rule apparently well settled in England,

I cannot resist the conclusion that the judgment appealed from should be affirmed, unless the entries made by the testator, in the margin and on the back of the draft of the codicil of January 9th, 1839, should have an effect given to them beyond that to which, in any view I can take of them, they are entitled. The entry in the margin of the draft of this codicil states that the stock “ alluded to” in that codicil “ has been transferred to Mrs. Langdon and her children;” it does not state for what purpose, or with what intent the “ transfer” was made. When the entry was made does not appear, but it must have been subsequent to the transfer to Mrs. Langdon. The entry on the back, dated a year subsequent to the transfer, states that “ the stock here given” (not saying how, or to whom given) “ is the same which Win. B. Astor holds in trust for Mrs. Lang-don and children. J. J. Astor, October 1st, 1840.” The book entries made, when the stocks were delivered to Wm. B. Astor in trust, charge them as being “ property left to Mrs. Langdon, in similar items, by a codicil of my will.”

Then these principles are to be applied to the facts of the case. The will and codicil having bequeathed to her the income for life of two certain funds, very specially and minutely described, of $100,000 each ; and the testator having in his lifetime advanced to her, for the .purpose of satisfying the legacies, the same funds, or two funds each of the same principal amount, bearing interest at the same rate, and owing by the same debt- or, and each similarly secured, the presumption of law, in the absence of all extrinsic proof, is, that they were transferred in satisfaction of the legacies. That rule of law must be applied in this case, unless this court has the power, and may properly abrogate it, or unless the revised statutes have repealed it. The court should not attempt to abrogate it, whatever may be its views of the origin of the rule, or of the policy, from which it sprung, when such action would violate, rather than give effect

If the facts of the case, and the rules applicable to them, have been correctly stated, there would seem to be no escape from these conclusions.

1st. The will and codicils give to Mrs. Langdon the income of two distinct funds of $100,000 each, and of two only.

2d. The income of these funds, or of funds substantially like them in all respects, were transferred: to' her by the testator in his lifetime.

3d. The law presumes he advanced them with intent to satisfy

4th. The intent of the act, as declared by the will itself, is the same as the law presumes, and all the evidence shows it to have been, viz. an intent to satisfy the legacies.

5th. The revised statutes have no relation to the matter of satisfying legacies, and therefore do not abrogate or modify any pre-existing, well-settled rules relating to that subject.

6th. The court will not abrogate any rule of law, on account of its view of the considerations of public policy, in which it may think the rule had its origin, when the effect of such an act will be to overthrow and defeat the intent of the testator.

7th. The legacies having been attempted to be satisfied, and the evidence tending to show that the plaintiff accepted of the transfers, knowing they were made, as being transfers of property bequeathed to her, there is no reason why effect should not be given to the transaction, according to the intent of the testator, as presumed by law, declared by the will, and established by the whole evidence:

I think the judgment should be affirmed.

Judgment reversed as to the legacy of $100,000 city debt, in all other respects affirmed. Plaintiff’s costs to be paid from estate.