In item 8 of her will the testatrix devised $1,000 to Mary Perkins Grogan, for the purpose of "making her home comfortable according to her wishes." This legacy has not been paid, and defendants aver that it has been satisfied in following manner, to wit: That shortly before her death testatrix borrowed from the Mechanics Savings Bank of Raleigh, N.C. for the benefit of the plaintiff, Mary Perkins Grogan, $1,000, and made her note therefor, along with plaintiff, said Mary Grogan, and her husband, J. S. Grogan, and with his written consent, signified by his joining in said note; and that the said $1,000 was received by the husband of said Mary P. Grogan as her agent and for her use and for the benefit of her separate estate, to wit, for the improvement of her home in Winston; and that (290) it was the intention of said testatrix at the time of the transaction in procuring said money for Mrs. Grogan that the note given for the same should be paid out of the legacy to said Mary Perkins Grogan; that said note has been paid by defendants, and that such payment should be taken as a payment of the legacy.
The plaintiffs reply and admit that the testatrix borrowed the $1,000 as alleged by defendants, and that she paid it over to Mrs. Grogan; but they aver it was not intended by Mrs. Martin as an ademption and satisfaction of the $1,000 legacy, and they further aver that Mrs. Grogan and her husband signed the note as sureties for the testatrix.
The following evidence was introduced by defendants:
Walters Durham testifies as follows: "I am cashier in a bank in Raleigh. I knew Mrs. Martin, the deceased." *Page 234
The $1,000 note is shown to witness, who states further:
"Mrs. Martin applied for a loan, and said Mr. and Mrs. Grogan were engaged in building and needed some money to complete the building; that they had applied to her for this money, and she did not have any money on hand. As they were relatives, she expected to leave them a bequest in her will, but as it appeared that they needed the money at this time she would be glad for the bank to make a loan of $1,000 on the note of Mr. and Mrs. Grogan, with herself as surety, which note if not paid before her death would be taken care of by the bequest she intended making them."
The court admitted this evidence, and plaintiffs excepted.
Mrs. Grogan admitted receiving this $1,000, but testified that it was given to her as a gift; that the testatrix signed the note as principal; that she and her husband signed it as sureties, and that the money was given to her to aid in the building of her home. Neither she nor her husband paid the note.
We are of opinion that the testimony was competent and properly admitted as the declarations of the testatrix characterizing her act at the time and manifesting her intention to satisfy the legacy already devised in her will.
Taking the testimony of Durham as a true statement of the (291) fact, which his Honor, sitting by consent as a trier of the facts as well as of the law, did, it makes out a clear case of the ademption of the $1,000 general legacy to the plaintiff, Mrs. Grogan.
There is quite a difference between the ademption of a specific and a general legacy, depending upon very different principles. A specific legacy is held to be adeemed when the testator has collected the debts (if the legacy consisted of specific notes) or has disposed of the devised chattels or stocks in his lifetime, whatever may have been his purpose in so doing.
But when a general legacy is given of a sum of money, without regard to any special fund set apart to pay it, the intention of the testator is of the very essence of ademption.
Shaw, C. J., in Richards v. Humphreys, 32 Mass. 136, says: "The testator, during his life, has the absolute power of disposition or revocation. If he pay a legacy in express terms during his lifetime, although the term payment, satisfaction, release, or discharge be used, it is manifest that it will operate by way of ademption, and can operate in no other way, in as much as a legacy, during the life of the testator, creates no obligation upon the testator or interest in the legatee which can be the subject of payment, release, or satisfaction. If, therefore, a testator, after having made his will, containing a general bequest to a child or stranger, makes an advance, or does other acts which can be shown by *Page 235 express proof or reasonable presumption to have been intended by the testator as a satisfaction, discharge, or substitute for the legacy given, it shall be deemed in law to be an ademption of the legacy."
As we have shown in the opinion upon defendant's appeal in this case, all of the circumstances surrounding the case are to be considered, and parol evidence is admissible to aid in arriving at the testator's intention in making the gift or advancement. Carmichael v. Lathrop, 108 Mich. 473;In re Youngerman's Estate, 134 Ia., 488.
While declarations of the testator, made generally and at any time and place, are not generally admissible, these declarations of Mrs. Martin were made at the time she procured and advanced the money for Mrs. Grogan, and as such they are held to be competent as against the legatee, because they characterize at the time the act of the testatrix, and are unmistakable evidence of her purpose and intention (292) to give the $1,000 in satisfaction of the legacy. 4 Ency. of Evidence, 486, and cases cited; Richards v. Humphreys, supra; 3 Elliott on Ev., sec. 2087.
These declarations made at the time of the advancement are not the only evidence of the purpose and intent of the testatrix. They are corroborated by the similarity in amount as well as purpose between the gift and the legacy as expressed in the will. This evidence, taken together, amply justifies the final judgment of the judge, that "Mary P. Grogan is not entitled to recover the $1,000 given to her in item 8 of the will of Mrs. Henrietta P. Martin."
But assuming that the declarations of the testatrix are incompetent, and excluding them entirely from consideration, as matter of law upon the admitted facts the $1,000 legacy has been satisfied, and Mrs. Grogan, upon her own testimony, is not entitled to recover it.
It is expressly declared in the will that this legacy is given to the legatee for the purpose of making her a comfortable home. Mrs. Grogan testifies that this $1,000 (given to her by the testatrix long after the execution of the will) was given for the specific purpose of assisting her in building her home.
Ademption, as a mode of payment or satisfaction of a legacy, is sometimes decreed as a matter of law upon admitted facts. Thus it is very generally held that, where a testator gives a legacy for a particularpurpose, and afterwards gives the legatee the same sum for the same purpose, this is of itself an ademption of the legacy, nothing else appearing. Monck v. Monck, 1 Ball B., 298; Wigram on Wills, p. 360; 1 Underhill on Wills, secs. 440-449; 2 Williams on Executors, 651-657. "When the legacy is given for a special purpose, the accomplishment thereof by the testator is also an ademption, and in this connection the *Page 236 rule of ejusdem generis is often applied." 1 A. E., 619, and cases cited;Tyler v. Tolen, 38 N.J. Eq., 97; Pym v. Lockyer, 5 My. Cr., 29.
It was held by Lord Chancellor Eldon, in a leading case, that (293) where a father, after bequeathing property to a child, gives him in the father's lifetime a portion of the same property, a total satisfaction of the legacy takes place, though the amount of the portion given is less than the legacy. Ex parte Pye, 18 Ves., 152. Mr. Underhill says this rule of a total satisfaction by payment of only a part never found favor in this county, and has been repudiated in England. 1 Underhill, sec. 440.
But courts and text-writers all agree that where the gift and the legacy are ejusdem generis, the sum given and the purpose named being practically and substantially identical in both gift and legacy, as in this case, the legacy is adeemed and satisfied by the subsequent gift.
The judgment of the Superior Court upon plaintiff's appeal is
Affirmed.