The opinion of the court was delivered by
McIvee, A. J.A preliminary question has been raised in this case as to whether due notice of appeal was given by some of the parties from the decree of the judge of Probate, which must first be disposed of. The order of Judge Hudson, refusing to dismiss the appeal of certain of the parties, upon the ground stated, is not appealable (Henderson v. Wyatt, 8 S. C. 112,) but even if it were, we should be inclined to agree with him in the view which he seems to have taken, and we will therefore proceed to consider the case upon its merits.
Most of the questions raised are novel, at least in this state, *524and not free from difficulty. The case has, therefore, demanded and has received the most thorough consideration and careful attention.'
The object of the action, which was instituted by Charles P. Allen, as executor of the last will and testament of Bannister Allen, against his devisees and legatees, was to obtain the instructions of the court as to the proper mode of distributing the estate under the provisions of the will. Except as to the residuary clause, no question has been raised, and no difficulty is'perceived in ascertaining the construction rvhich should be placed upon the terms of the will, but the conflicting claims which the court is called upon to determine arises mainly out of various money transactions between the testator and his devisees and legatees during his lifetime. For a detailed account of these transactions reference must be had to the brief and to the decree of Judge Fraser, who heard the case on its merits, where they are very clearly, and succinctly stated. In general terms these transactions may be classified as follows: 1st. Payments of money by the testator to the legatees, evidenced by simple receipts. 2d. Payments evidenced by receipts which are expressed to be in full or in part, of distributive shares of testator’s estate. 3d. Ordinary notes given by several of the legatees. to the testator. 4th. Papers in the form of notes under seal, by which the legatee promises to pay to the testator, one day after date, “ twelve hundred dollars in goldj included in the will paid, and thirteen hundred dollars in currency, in full for that much, without interest,” upon each of which is the following endorsement by the testator: “ I give of the within note to my son [naming him] in part of my estate of the late will and testament, and dated 8th December, 1871.” 5th. Papers in which the legatee signing acknowledges the receipt of a specified sum of money from the testator, “ in full of my distributive share of the estate of my said father, and I hereby renounce and forever relinquish to the other heirs-at-law, devisees and legatees of Bannister Allen, my father, when their rights shall accrue, all claim, by inheritance or otherwise, to any part of said estate, and I bind myself, my heirs, executors and administrators, for the complete fulfillment of the above, in consideration of said sum of two thousand *525'dollars received by me; ” the only difference in the papers belonging to this class being that in some of them the interest is not relinquished “ to the other heirs,” &c., as in the one above set out, but contain a simple relinquishment of “ all claims, by inheritance ór otherwise, to any part of said estate.” 6th. Papers in which Mrs. Watson and Mrs. McCalla acknowledge the receipt of certain sums of money from the testator, in consideration whereof they renounce all claim to the lands devised to them by the testator.
The questions are: Whether these transactions shall operate as ademptions of the legacies given in the will. If so, whether they adeem only the pecuniary legacies of specific amounts, or the interest which each of the legatees may be entitled to under the residuary clause also. What effect the papers purporting to release the interests of several of the legatees shall have, and what effect the papers executed by Mrs. Watson and Mrs. McCalla shall have.
The general rule upon the subject of the ademption of legacies is that where a father or one who has placed himself in loco parentis gives a -legacy to a child, or to one toward whom he has assumed such a relationship, he is understood to give a portion, and, in consequence of the leaning of the courts against double portions, if the parent afterward advances a portion to such child, the presumption is that it was intended as a satisfaction of the legacy, either in whole or in part, as the case may be, and the legacy is adeemed pro tanto. But in case of a legacy to a stranger, (and in this respect even grandchildren are regarded as strangers,) no such presumption arises, and unless there is proof showing that the subsequent advance was intended as a satisfac-
tion of the legacy there will be no ademption and the legatee will be entitled to both. Ex parte Pye, 18 Ves. 140; Richardson v. Richardson, Dud. Eq. 184. The question of ademption is a •question of intention; as is well said in one of the cases, “ intention is of the very essence of ademption.” Thus, where the legacy is from a parent to a child, or from one who has assumed that relationship to the legatee, the intention to adeem is presumed merely from the relationship, and in the absence of any evidence to the contrary, such presumption is conclusive of the *526intention. But where no such relationship exists, then no such . presumption arises, and the intention becomes a matter of proof, for which purpose extrinsic evidence may be resorted to, not for the purpose of showing an intention to revoke or alter any portion of the will, but, as is fully shown in the cases, for the purpose of showing what was the intention of the testator in making the subsequent advance or payment — whether he intended it to, operate as a satisfaction of the legacy or as an additional bounty to the legatee. Shudal v. Jekyll, 2 Atk. 516; Rosewell v. Bennet, 3 Atk. 77; Kirk v. Eddowes, 3 Hare 509; Richards v. Humphreys, 15 Pick. 133; Gilliam v. Chancellor, 43 Miss. 437, reported also in 5 Am. Rep. 498. The case of Richards v. Humphreys was, in some of its aspects, very much like the case now under consideration, and will be found full and instructive. In that case a brother, by his will, gave a legacy of $500 to his sister, who was a married woman, and afterward, at her request, advanced her something over $400 to aid her in the purchase of land, taking a receipt therefor, in which it was stated “ that the money was given in part payment of the dowry given her in his will.” The court held that this showed that the payment was made on account of the legacy, and that it was, therefore, adeemed to the extent of the amount paid. In that case the court used this language: “ Ademption takes effect not from the act of the legatee in releasing or receiving satisfaction of the legacy, but solely from the will and act of the testator in-making such payment or satisfaction or substituting a different act of bounty, which is shown by competent proof to be intended as such payment, satisfaction or substitute.” Hence it makes no difference that the legatee was, at the time of receiving the payment, under the disability of coverture or infancy, as the ademption depends solely upon the will of the testator and not upon the ability of the legatee to give a valid discharge. It is very true that it has been held that no presumption of an intention to adeem arises where the bequest is of a residuum or of an interest therein, even where the bequest is from a person standing in the relation of parent to the legatee, and this because a residuum or an interest therein can never be regarded as a portion, strictly speaking, inasmuch as the amount is necesssrily *527of an uncertain character, and hence the presumption against double portions does not arise. Farnham v. Phillips, 2 Atk. 215; Freemantle v. Banks, 5 Ves. 85. But if, as we have seen, the question of ademption is a question of intention, we are unable to perceive any good reason why, where the proof shows an intention to adeem, not only a pecuniary legacy, but also an interest in the residue, such intention should not be allowed full effect. We have not been.able to find any case in which an interest in the residue has been held to be adeemed by a subsequent advance, but we do find that in the case of Lady Thynne v. Earl of Glengall, 2 H. L. Cas. 131, upon a full review of the authorities, it was held that a bequest of a residue will, according to its amount, be a satisfaction of a portion, either in full or protanto, as the case may be, and it is difficult to understand how, upon the same principle, we can avoid holding that a portion by settlement or otherwise, shall, in like manner, be a satisfaction of a previous bequest of a residue to the extent that the former may cover the latter. We think, therefore, that where the evidence shows such to be the intention, an interest in the residue, as well as a general pecuniary legacy, may be adeemed bya subsequent advance of money to the legatee.
It would seem that, upon the same principles, devises of real estate ought likewise to be adeemed (if such a term can, with any propriety, be applied to devises) by subsequent payments! to the devisees with the intention of producing that result;, but it is conceded that the doctrine of ademption has never been applied to devises of real estate, and, in the absence of any authority, we do not feel justified in disregarding the well-established line which has for ages been drawn between real and personal estate, even though we may be thereby compelled to thwart the obvious intention of the testator and disturb .that distribution of his property which he thought was proper and just to his descendants. For while the intention of the testator is the cardinal rule of construction of a will, yet such intention cannot be given effect where it is in conflict with the rules of law. A devise of real estate cannot, like a pecuniary legacy, be affected by any subsequent transactions between the testator and the devisee, but must stand until it is revoked or altered in the *528manner prescribed by law. The papers signed by Mrs. Watson and Mrs. McCalla cannot, therefore, operate, as they were doubtless intended, as ademptions of the devises to these ladies; they cannot, as we shall presently see, have any effect as releases, •and they cannot operate to adeem the interests of these devisees in the residuum, for they were not so intended by the testator, but, on the contrary, are expressly declared to be intended for a different purpose, which, as we have seen, must fail because in conflict with an established rule of law. Nor can they be treated as advancements, for the doctrine of advancements applies only in cases of intestacy, or where, as in Manning v. Manning, 12 Rich. Eg. 410, the testatpr in his will has directed that property given to his children in his lifetime should be accounted for by them. Here, however, there is no such direction in the will, and to give the transactions evidenced by these papers the effect of advancements would, in effect, be an alteration of the will without the formalities required by law for such a purpose.
The next inquiry is as to the effect of the receipts in which some of the legatees have undertaken to release their interests in the estate of the testator during his lifetime. We agree with the Circuit judge that so far as they purport to be releases of any interest in the estate they are absolutely void, and it is scarcely .necessary to add anything to what he has said upon the subject. It may be true that, in equity, a release of a mere naked possibility pr expectancy of an heir to his ancestor’s estate, or of a legatee of an interest under the will of a person then living, if founded upon a valuable consideration, might be carried into effect after the death of such ancestor or testator as a right acquired under a contract; (2 Story’s Eg. Jur., § 1040, &,) but, certainly, without such consideration it would be a nullity. Morris v. Borroughs, 1 Atk. 399. In this case it is not pretended that there was any consideration for the so-called releases as between the parties who signed them and the other heirs, devisees and legatees of the testator, and it could not be said that there was any valuable consideration passing between the testator himself and those who undertook to release, for the testator having, up to the time of his death, absolute testamentary power *529over all of his property, could, by a simple stroke of his peD, have effected the very same objects by revoking any legacy or devise in his will. Hence these releases are, in our opinion, absolute nullities, as well those which purport to relinquish “ to the other heirs,” &c., as those which do not purport to relinquish to any particular person or persons, and can only have effect as acknowledgments of the receipt of so much money on account of interests in the estate. The cases which have been cited to sustain the validity of these releases, Lockyer v. Savage, 2 Strange 947; Ives v. Metcalf, 1 Atk. 63; Blunden v. Barker, 1 P. Wms. 639; Cox v. Belitha, 2 P. Wms. 272, and others of that class, prove, on examination, to be cases arising under the custom of London, by which a man’s testamentary power did not extend to the whole of his personal estate unless he died leaving neither wife or child. If he left a wife and children, his personal estate was divisible into three equal parts, one of which, called the orphanage part, Avent to the children, another to the widow, and the third part was at his own disposal. 1 Wms. on Ex’rs 2, 3; Heron v. Heron, 2 Atk. 160. Inasmuch, therefore, as the father could not, by his will, deprive his child of an equal share in what Avas called the orphanage part, a release by the child to the parent of his interest in such orphanage part, in consideration of the payment of a sum of money, has been sustained, in the cases above-mentioned, as a transaction based upon a valuable consideration, because there the parent acquired something — the right to dispose of the child’s share of the orphanage part — in exchange for the money paid to the child, while here, Avhere there is no such restriction upon the testamentary poAvei', it is very manifest that a parent obtains nothing by such a transaction, and it cannot be supposed that he pays his money in consideration of obtaining a right which he already enjoys.
We conclude, then, that so far as papers of the first class are concerned — ordinary receipts — they avüI or will not be regarded as ademptions of legacies pro tanto accordingly as the evidence adduced may show the intention of the testator; that as to papers in the second class — receipts Avhich are expressed to be in full or in part of distributive shares or interests in the testator’s estate — they will, without further evidence, be regarded as *530ademptions of legacies, residuary as well as pecuniary, to the extent of the amounts mentioned therein, as they bear upon their face evidence that such was the intention of the testator; that as to papers in the third class — ordinary notes — they are to be regarded as assets of the testator’s estate, to be accounted,for by the executor, and not as ademptions of legacies; that as to papers of the fourth class — papers in the form of notes promising to pay $1200 in gold, included in the will, paid, Ac. — they are to be regarded as ademptions of legacies, residuary as well as pecuniary, without further evidence, as the terms in which they were written, taken in connection with the endorsements made thereon by the testator, satisfy us that such was his intention ; that as to the papers in the fifth class — releases as they are called — they are nullities, except so'far as they acknowledge the receipt of specific suras of money, and that they are to be regarded as ademptions of legacies, residuary as well as pecuniary, to the extent of the amounts so specified; and that as to the sixth class — papers signed by Mrs. Watson and Mrs. McCalla— they are to be regarded as nullities. We think, also, that the endorsement made by the testator on the letter of Joseph N. Brown, acknowledging the receipt of a note and a small amount in currency, as guardian of James B. Allen, is sufficient evidence of the intention of the testator to thereby adeem not only the pecuniary legacy to J. B. Allen, but also his interest in the residue pro tanto, and that the gift of the note was sufficiently ejusdem generis to bring it within the rule as to ademptions of legacies. Richardson v. Richardson, Dud. Eq. 194-5.
The only remaining inquiry is as to the manner in which the residue of the estate is to be divided — whether per stirpes or per capita. The language of the residuary clause is as follows: “ It is my will, and I hereby direct, that all my estate, not hereinbefore disposed of, be converted into money by the sale of the real and personal property, and by the collection of all the debts due to me, as far as possible, and that the proceeds be equally distributed among my heirs-at-law, share and share alike.”
The general rule is, that where there is a gift to a class of persons, without any direction as to the proportions in which the individuals of the class are to take, all who can bring themselves *531within the class are entitled to participate in the distribution, which must be per capita. But where the gift is to a class, the individuals of which can only be ascertained by a resort to the statute of distributions, then the provisions of the statute must also be resorted to for the purpose of ascertaining the proportions in which the donees are to take, unless, in the instrument by which the gift is made, a different rule of distribution shall be prescribed. Templeton v. Walker, 3 Rich. Eq. 543. If, therefore, the gift is to a class of persons designated as heirs of a particular person, then, as it is necessary to resort to the statute to ascertain who are the individuals composing the class, resort must also be had to the statute to determine how or in what propor- ■ tions such individuals shall take. This is upon the presumption that the donor having, by implication at least, referred to the statute as to the persons who are to take, also intended that reference should be had to the statute to determine the proportions in which they should take, unless he expresses a different intention. But when he prescribes a different mode of distribution, then no such presumption can arise, and the distribution must be made in the manner prescribed. Thus when, as in Freeman v. Knight, 2 Ired. Eq. 72, the testator directed that certain personal property “should be sold and the proceeds equally divided between my legal heirs,” it was held that though a resort to the statute was necessary, in order to ascertain who were the persons embraced in the class to whom the bequest was made, there was no such necessity to refer to the statute to ascertain the mode of distribution, because the testator had himself determined that by directing an equal division, and hence the proceeds of sale should be distributed amongst the widow and children and the children of predeceased children, per capita and not per stirpes, jin the case now under consideration the words are, if anything, stronger, for here the provision is that the proceeds shall be equally divided, share and share alike. It is difficult to conceive what language the testator could have used better adapted to prescribe the mode of distribution, and we do not feel justified in substituting, for the declared will of the testator, a mode of distribution by which one of his heirs — grandchild—should receive only a fractional part of an equal share, when the testator has ex*532pressly directed that each of his heirs shall receive an equal share, and that all shall share alike. The case of Collier v. Collier, 3 Rich. Eq. 555, does not, in our opinion, conflict with these views. There the testator, after giving various bequests to his wife and children by their names, and to his grandchildren by classes, designating them as children of a deceased child, viz.: “To my son John’s children,” and “to my son William’s children,” as well as a bequest to his grandson Oliver, who was one-of John’s children, directed that the residue of his estate “ be equally divided amongst all my above-named heirs,” and it was held that the residue must be divided per stirpes and not per capita, notwithstanding the word “ equally.” But this conclusion was reached by the court only because, as they say, “ it seems to us that upon the whole will, and particularly by the manner and the amount of the several primary gifts to his son John’s children, to his son William’s children, to his daughter Margaret, his daughter Sophia and to his other children, and by the phrase ‘ above-named heirs,’ the testator signified his purpose that his ‘son John’s children ’ shall be one of his heirs, his ‘son William’s children’ shall be one of his heirs, and each of his own children one of his heirs; and that the words of equality are satisfied by equal distribution amongst those of the same degree, according to the statute. The testator’s grandson, Oliver, is represented to be a son of John, and will it be urged that testator intended Oliver to take two full equal shares?” Here there are no such considerations to control the signification of the words “equally” and “share and share alike,” and wre must, therefore, give them their usual signification.
. The judgment of the Circuit Court, exceptas modified herein, is affirmed, and the case is remanded to that court for such further proceedings as may be necessary.
Willakd, C. J., concurred..