to Dalmbert & Sergeant which remained unsold at the time the suit was commenced. The goods seized were of the value, as found by the jury, of $1,980. The evidence showed that of the goods seized $261 worth were of the July, 1884, purchase; $538.54 of the January, 1885, purchase; and the residue of the last bill, purchased in July, 1885. A jury having returned a verdict in favor of the plaintiffs, judgment was given accordingly, over a motion for a new trial. The verdict and judgment affirmed the right of the plaintiffs to recover the unsold goods remaining of each and all the several purchases, as above described, notwithstanding the amount of the first two purchases had been settled by the giving of notes by the purchasers, payable in bank, two of which notes had been fully paid, with interest; and notwithstanding there had been no offer to return either the notes given or the money paid before the bringing of the suit in replevin. The appellants contend: (1) that the evidence wholly fails to show that either of the purchases was made under such circumstances as justified a rescission of the contract and a reclamation of the goods; and (2) that even if it be conceded that the goods were fraudulently obtained with a design not to pay for them, still replevin cannot be maintained to recover those embraced by the first and second purchases, without first offering to return the money paid and the notes executed in settle ment of the several accounts. contract, and the vendor has received nothing of value, the bringing of an action to reclaim the property is ordinarily a sufficient disaffirmance of the contract. But in case money has been paid or the purchaser's promissory notes have been received, replevin cannot be maintained for the recovery of the property while the vendor retains the money or notes for the purchase price. Moriarty v. Stofferan, 89 Ill. 528; Doane v. Lockwood, 3 West. Rep. 76, 115 Ill. 490; Parrish v. Thurston, 87 Ind. 437; Haase v. Mitchell, 58 Ind. 213. "One who has been led into a contract upon which he has received something of value cannot ignore the contract, however induced, and proceed in a court of law as if the relations of the parties were wholly unaffected thereby. He cannot, while retaining its benefits and thus affirming the contract, treat it as though it did not exist." Home Ins. Co. v. Howard, 10 West. Rep. 815, 111 Ind. 544. Replevin is strictly an action at law. The right of recovery must exist at the time the action is commenced. It cannot be created by bringing the notes into court, as in an equitable suit for rescission, and offering to surrender them up as the court may direct. As has been seen, there were three separate bills, involving three distinct transactions, each one of which must stand upon its own merits and be governed by the circumstances peculiar to it. The first bill was purchased and the goods delivered more than sixteen months before the purchasers failed. Six months and more after the goods were delivered the purchasers executed their negotiable promissory notes in settlement of the account. Two of these nctes, with the interest, were afterwards paid, and all of the goods, except $261 worth, had been retailed out before the suit in replevin was commenced. We have been cited to no authority, nor can we conceive of any principle, which authorizes the vendors, after such a lapse of time and under such circumstances, to ignore the sale and maintain replevin for such of the goods as reWithout determining whether or not the evi-mained unsold, while retaining the money and dence in the record justifies the inference that Dalmbert & Sergeant knew of and fraudulently concealed their insolvency, if they were insolvent at the time of each purchase, with the present purpose, in each instance, to obtain goods and not pay for them, it is sufficient to say, even if these points were conceded, a reversal of the judgment must follow, neverthe less, because the case was allowed to proceed and was put to the jury upon a theory which cannot be approved. The question embraced in the last proposition arises both on the evidence and upon an instruction given by the court; which instruction was to the effect that if a purchase of goods be effected by means of fraud, the vendor does not, as against the purchaser, lose his title to the goods, and the vendor, in case notes have been given for the purchase price, may maintain replevin without having previously tendered the notes, provided they are produced at the time to be surrendered up. It is well settled that, even though a sale of property be induced by fraud, the contract is not void, but only voidable. The title to the property passes to the fraudulent vendee, subject to the right of the vendor, upon discovering the fraud, to elect whether he will rescind the contract by returning or offering to return whatever of value he may have received, and reclaim his property, or whether he will retain the consideration and treat the bargain as subsisting. Until the vendor makes his election the contract continues, and the title to the property remains in the purchaser, as against all the world. Powers v. Benedict, 88 N. Y. 605. note which they received in pursuance of the contract. The plaintiffs cannot affirm the contract so as to keep the money and note, and at the same time treat it as rescinded for the purpose of recovering so much of the property as remains. The right to recover goods obtained by fraud or in pursuance of a fraudulent contract, by an action at law only exists while the situation of the parties remains such that they can be placed substantially in statu quo. If this cannot be done, while the party defrauded is not remediless, some other remedy than replevin must be resorted to. Gould v. Cayuga County Nat. Bank, 86 N. Y. 75; Same v. Same, 99 N. Y. 333. That the purchasers may have been insolvent when the first bill, or any of the other bills, was purchased, and that they may have known that their debts exceeded their assets, did not of itself constitute such a fraud as justified the setting aside of the sale after the goods had come fully and fairly into the possession of the buyers. To avoid a sale after the goods have been taken into the possession of the buyer, Where the possession of property has been apparently in the ordinary course of his busiwrongfully obtained by means of a voidableness, there must have been some artifice or trick, or some false pretense or fraudulent sup- | 1885, purchase, had been sold in the usual pression of the truth, which enabled the pur- course of retail, by the purchasers, before they chaser to obtain possession of the goods; and made an assignment for the benefit of their it must appear that the latter intended, at the creditors. The January bill had been settled, time of each purchase, not to pay for the goods; months after it was made, by accepting the and there must have been a complete restora- purchasers' promissory notes, which were netion of whatever of value was received. gotiable according to the law merchant. This was prima facie an extinguishment of the account. If, under such circumstances, replevin is maintainable at all, certainly it can only be after a tender of the notes and a rescission of the contract. The mere fact that the purchasers subsequently executed chattel mortgages upon the property, thereby giving certain of their creditors preference, or that they made an assign ment for the benefit of creditors, did not warrant the inference that either of the purchases was made with the design to obtain the goods without paying for them. Gilbert v. McCorkle, 8 West. Rep. 911, 110 Ind. 215. Most of the goods covered by the January, Since the judgment must be reversed for the reasons already given, we do not examine other questions raised and argued, which can hardly arise again. The judgment is reversed, with costs. ILLINOIS SUPREME COURT. Peter D. RICHARDSON, Appt., 2. Mary J. EVELAND et al. 1. An ademption of a legacy will be worked, while the will remains ambulatory, by a subsequent gift or advancement by the testator to the legatees, with the intention that it should be in lieu and discharge of the legacy, and the latter will then stand in the will as a satisfied legacy. 2. A charge upon land, imposed by a will as a particular provision for children, is discharged by an ademption of such provision. 8. Where a charge upon land in a will fails, the advantage will enure to the benefit of the devisee, where the gift was by a father to his NOTE.-Ademption of legacies; definition; nature and requisites; general principles. For definition, nature, and requisites generally, see Bouv. L. Dict. and authorities cited. For the law of ademption, as laid down prior to the year 1848, see Roper, Leg. 329-384; Prest. Leg. 326-332; Ward, Leg. 261-273;-in which the decisions and authorities prior to that date are collated and cited. Ademption is a satisfaction of a legacy by some act of testator which is equivalent to its revocation. Langdon v. Astor, 16 N. Y. 34: Burnham v. Comfort, 11 Cent. Rep. 448, 108 N. Y. 535. The doctrine of presumption, satisfaction, or ademption is not to be extended. Gilliam v. Chancellor, 43 Miss. 438. By advancement to, or provision for, legatee. A subsequent advancement to, or provision for, a legatee will in general be presumed to have been intended by the testator to be in satisfaction of the legacy. Story, Eq. Jur. 88 1111, 1112: Willard. Eq. 343, 344; 2 Wms. Exrs. 1142; 2 Redf. Wills, 5, 37; Redf. Surr. Pr. 329; Benjamin v. Dimmick, 4 Redf. 7; Allen V. Allen, 13 S. C. 512, 36 Am. Rep. 716; Richards v. Humphreys, 15 Pick. 133; Miner v. Atherton, 35 Pa. 528: Clendenning v. Clymer, 17 Ind. 155; Weston v. Johnson, 48 Ind. 1; Low v. Low, 77 Me. 37; Hartop v. Whitmore, 1 P.Wms. 681; Clarke v. Burgoine, 1 Dick. 333: Clarke v. Percival, 2 Barn. & Ad. 660; Degraaff v. Teerpenning, 52 How. Pr. 313; Van Houten v. Post. 32 N. J. Eq. 709; Hine v. Hine, 39 Barb. 507; Langdon v. Astor, 16 N.Y. 34; Gilliam v. Chancellor, 43 Miss. 438; Webb v. Jones, 36 N. J. Eq. 163; Thomas v. Capps, 5 Bush, 276; Swoope's Appeal, 27 Pa. 58; Clark v. Jetton, 5 Sneed, 229; Paine v. Parsons, 14 Pick. 320; Rogers v. French, 19 Ga. 316; Cowles v. Cowles (Conn.) 6 New Eng. Rep. 467. It is immaterial that a document acknowledging the receipt of money in lieu of right under the donor's will was given by afeme covert incapable of making a binding contract. Cowles v. Cowles (Conn.) 6 New Eng. Rep. 467. Whether an advancement is an ademption of a legacy is a question of intention. Rogers v. French, 19 Ga. 316. The presumption of ademption from a subsequent advancement will not prevail where the testamentary portion and advancement are not See also 32 L. R. A. 232. 4. son of the beneficial interest in lands, subject to a legacy to daughters, -as the son took the lands cum onere and as the devisee of the beneficial interest in the lands, which were only charged, and were not devised upon express trust, to pay the legacies. In determining whether an ademption has taken place, or whether the doctrine is applicable, it is important to observe whether the donor stands in the place of a parent or as 2 stranger to the donee, and whether there are words accompanying the subsequent gift sufficiently express to show an intention on the part of the donor that the latter benefit should be in substitution. │5. The intention to satisfy a legacy to a of the same nature, where the latter depends upon a contingency and the former a certainty, where it is in lieu of, or a compensation for, an interest to which the child is entitled, where the bequest is of a residue or part of a residue, or where it is an uncertain amount. Clark v. Jetton, 5 Sneed, 229; Gilliam v. Chancellor, 43 Miss. 43; Van Houten v. Post, 32 N. J. Eq. 709. The conveyance to the devisee of the land devised or acceptance by the legatee of property in lieu of the legacy is a satisfaction or ademption; but not where other land or a different interest therein is conveyed, or there is no relationship between the testator and legatee or devisee. Marshall v. Rench, 3 Del. Ch. 239; Evans v. Beaumont, 4 Lea, 599; Clark v. Jetton, 5 Sneed, 229; Swoope's Appeal, 27 Pa. 58; Snell v. Tuttle, 44 Hun, 331. Evidence of intention. Where no relationship exists between the testator and the legatee, evídence is admissible to show whether a subsequent advancement to such legatee was intended by the testator to be ademption of the legacy. Allen v. Allen, 13 S. C. 512, 36 Am. Rep. 718; Shudal v. Jekyll, 2 Atk. 516; Rosewell v. Bennett, 3 Atk. 77; Kirk v. Eddowes, 3 Hare, 509; Richards v. Humphreys, 15 Pick. 133; Gilliam v. Chancellor, 43 Miss. 437, 5 Am. Rep. 498; Thomas v. Capps, 5 Bush, 276; Rogers v. French, 19 Ga. 316; Degraaff v. Teerpenning, 52 How. Pr. 313; Langdon v. Astor, 16 N. Y. 34. Declarations of the testator are admissible to show that a payment was intended as an ademption pro tanto of the legacy. Richards v. Humphreys, 15 Pick. 133; Webster v. Webster, 105 Mass. 541; Van Houten v. Post, 32 N. J. Eq. 709. Doctrine not applicable to residue. The doctrine of constructive ademption does not apply to a devise of a mere residue. Clendenning v. Clymer, 17 Ind. 156; Davis v. Whittaker, 38 Ark. 435. The rule of ademption applies, although the bequest to a child is contained in the residuary clause of the will. Van Houten v. Post, 32 N. J. Eq. 709. Doctrine not applicable to devises. The rule of ademption is not applicable to devises of realty. which are not satisfied by a subsequent advanc stranger by a subsequent gift must be expressed, unless the legacy and gift be for the same specific purpose. 6. If the relation of parent and child exists between the testator and legatee, the presumption at once arises that the subsequent gift, if ejusdem generis, was intended to be in satisfaction of the prior legacy, the parent not being presumed, having voluntarily fixed the portions, to take from one child to his detriment for the benefit of another. 7. Parol evidence is admissible for the purpose of rebutting or sustaining the presumption that a legacy by a parent is satisfied by a subsequent advancement or gift, as the evidence must be limited to the subsequent gift. If no writing accompanies the gift, the declarations of the testator and his conduct may be considered, whether contemporaneous with, or prior or subsequent to, the gift. Satisfactory proof of a testator's intention is sufficient to rebut the presumption. 8. As tending to sustain the presumption of satisfaction of a legacy by a later gift, it is proper to show that a portion of the land devised had been sold and the proceeds used by the testator in making the gift to his daughters, in whose favor the legacy was charged upon the devise to his son, so far as that evidence tended to illustrate the intention of the testator in making the advance. 9. Where there was a devise of land to a son, charged with a legacy to his sisters, and the father subsequently conveyed all his remaining land, a part of it to the son, subject to the charge in the will, and two months later the remainder, including a tract from the devise to the son and a more valuable one from the devise to the daughters, to a third party, distributing among the daughters the sum received, where the son received under the deed more land ment to the devisee. Story, Eq. Jur. § 1111; 2 Wms. Exrs. 5th Am. ed. 1202; 1 Roper, Leg. 365; Davys v. Boucher, 3 Younge & C. Exch. 397; Langdon v. Astor, 16 N. Y. 34; Burnham v. Comfort, 11 Cent. Rep. 448, 108 N. Y. 535, 37 Hun, 216, Snell v. Tuttle, 44 Hun, 331; Thomas v. Capps, 5 Bush, 276; Weston v. Johnson, 48 Ind. 1. By sale of the property: change or annihilation of fund. A sale or disposition by the testator, during his lifetime, of the estate previously devised or bequeathed, operates as a revocation or ademption pro tanto. Godard v. Wagner, 2 Strobh. Eq. 1; Re Mickel, 14 Johns. 324: Lilly v. Curry, Bush, 590; Livingston v. Livingston, 3 Johns. Ch. 154; McNaughton v. McNaughton, 34 N. Y. 201; Philson v. Moore, 23 Hun, 152; Emery v. Union Soc. (Me.) 4 New Eng. Rep. 538; Bissell v. Heyward, 96 U. S. 580 (24 L. ed. 678); Balliet's Appeal, 14 Fa. 451; Cozzens v. Jamison, 12 Mo. App. 452: Hawes v. Humphrey, 9 Pick. 350; Carter v. Thomas, 4 Me. 341; Beck v. McGillis, 9 Barb. 35; Brown v. Brown, 16 Barb. 572; Vandermark v. Vandermark, 26 Barb. 418; Adams v.Winne,7 Paige, 97; Re Dowd, 58 How.Pr. 107. And this, although the subsequent conveyance is in trust. Coulson v. Holmes, 5 Sawy. 279; Howard v. Carusi, 4 MacArth. 260. The provisions of the statute concerning the revocation of wills are not applicable in case of the alienation, during testator's lifetime, of the land previously devised. Cozzens v. Jamison, 12 Mo. App. 452. In the case of the devise of both real and personal property, the subsequent sale by the testator of the real estate is a revocation as to the real estate only, and not as to the personal property. Balliet's Appeal, 14 Pa. 451. A legacy given with reference to a particular fund, only as pointing out a convenient mode of payment, is demonstrative; but if the gift is of the fund itself, in whole or in part, or was charged upon the object made subject to it so as to show an intention to burden that object alone with the payment, it is specific and liable to be adeemed by a subsequent alienation or destruction. Walls v. Stewart, 16 Pa. 275; Blackstone v. Blackstone, 3 Watts, 335; White v. Winchester, 6 Pick. 48. A bequest of my government bonds is specific, and than he would have received under the will,-the charges in favor of the daughters should be retained. 10. A reversal will not be had because incompe tent evidence may have been heard in a chancery cause, if there be in the record sufficient competent evidence to sustain the decree. (September 27, 1888.) APPEAL from a decree of the Appellate Court, Third District, affirming a judgment of the Morgan Circuit Court, Epler, J., against complainant on a bill to have a be quest declared adeemed and the lien on land Conveyed subject to the legacy discharged. Affirmed. "The facts are stated in the opinion. Messrs. Brown & Kirby, for complainant, appellant: Where a parent or other person in loco parentis bequeathes a legacy to a child, and afterwards, in his lifetime, gives a portion or makes a provision for the same child without expressing it to be in lieu of the legacy, if the portion be equal to or exceed the legacy, if it be certain and not merely contingent, if no other distinct object be pointed out, and it be ejusdem generis, then it will be held an ademption of the legacy. If the provision be less than. the legacy, it will be deemed a satisfaction pro tanto. Story, Eq. Jur. § 1111, and notes. Here there is present every condition which in law is required to adeem a legacy: 1. There is the character of legacy which may be adeemed. 2. There is the parent or person standing in loco parentis. 3. There is the gift is adeemed by testator's disposing of them during his lifetime. Capron v. Capron (D. C.) 12 Cent. Rep. 43. A general or demonstrative legacy is not adeemed by the sale or change of the fund; but a specific legacy is in general revoked by the sale or change of form of the thing bequeathed. Smith's Appeal, 103 Pa. 559; Walton v. Walton, 7 Johns. Ch. 262; Starbuck v. Starbuck 93 N.C. 183. If a testator, who has given by his will a legacy for a specified particular purpose, himself afterwards executes the purpose in his lifetime, he is presumed to have intended to cancel the legacy, which is held to be adeemed. Taylor v. Tolen, 38 N. J. Eq. 97. The annihilation of a specific legacy, or such changes in its estate as makes it another thing, annuls the bequest for reasons paramount to consideration of intention. Sleech v. Thorington, 2 Ves. Sr. 561; Drinkwater v. Falconer, Id. 623; Humphreys v. Humphreys, 2 Cox, Ch. 184; Birch v. Baker, Mosely, 373; Ashburner v. MacGuire, 2 Bro. Ch. 108; Blackstone v. Blackstone, 3 Watts, 338. An alteration of the nature and character of the interest of the testator in the property devised or bequeathed does not, under 2 Rev. Stat. 64, in all cases work a revocation. Re Dowd, 58 How. Pr.107. A bequest of $1,000 of United States 6 per cent stock or loan of a stated year, described as standing in the name of the testator, on the books of the loan office, as per certificate No. 269, is a specific legacy, and is adeemed or extinguished by the testator himself receiving payment thereof from the gov erment. Ludlam's Estate, 13 Pa, 188. Where a decedent gave to his executors a certain bond and mortgage for the present amount of the principal due, which bond and mortgage was held in trust by decedent to pay the interest to one for life, and upon his decease to convert said bond and mortgage into money and to divide and distribute the net proceeds, the undivided balance which was due at the time of the execution of the will being less by $3,000 than the original amount,-which balance was subsequently paid to decedent, who deposited. the money at his banker's, where it remained,-the legacy was not demonstrative, but specific and adeemed. Abernethy v. Catlin, 2 Dem. 341. of April 13, 1882, of a greater sum than the legacy, without any expression of purpose by the donor. 4. There is the special occasion, -the birthday party. Langdon v. Astor, 16 N. Y. 34. As the testator owned the land described in the will, it cannot be said against the will that it meant other land. Kurtz v. Hibner, 55 Ill. 514; Bishop v. Morgan, 82 Ill. 351. Independent of the fact that a part of the land charged with the payment of this legacy was used to raise the subsequent advancement, the presumption of law is that the donor intended it to be in satisfaction of the legacy. 1 Pom. Eq. Jur. § 524, 553-557. Although in a deed on the 8th of March, 1882, the land was conveyed subject to the conditions and charges in the will, yet, if he did an act on the 13th of April, 1882, which operated in law to satisfy or adeem one of the charges in the will, it was no longer an operative charge, and the land would pass subject only to existing operative charges. 1 Pom. Eq. Jur. § 561. It was error to permit a witness to testify that Mr. Richardson did not intend to devise the W. of the N. E. of Sec. 34 to the complainant. Kurtz v. Hibner, 55 Ill. 514, Bishop v. Morgan, 82 Ill. 351. Messrs. Morrison & Whitlock, for appellees: The relationship between the testator and legatee creates a presumption of fact that the advancement was in the nature of payment and was so intended. Powel v. Cleaver, 2 Bro. Ch. 499. Ademption of a will is one of intention. Powys v. Mansfield, 3 Myl. & C. 59; 1 Roper, Leg. 365; Langdor v. Astor, 16 N. Y. 9; 2 Story, Eq. Jur. § 1114, note 1. Shope, J., delivered the opinion of the court: It is contended by appellant that the gift of advancement made by the testator, of $2,500, to each of his daughters on the occasion of the family reunion, in celebration of his 68th birthday, was an ademption of the devise of $5,000 to said daughters jointly, made by the will a charge upon the land devised to appellant, to be paid by him to said daughters within one year after the testator's death. At the date of the will, August 5, 1875, the testator owned between 400 and 500 acres of land, and a considerable personal estate. The devise to his son (appellant) was of real estate only, and was described in the will as the "home farm, consisting of 198 acres," and being 38 acres off of the south end of the E. of the S. E. of Sec. 28; the E. of the N. E. of Sec. 33; and the W. of the N. E. of Sec. 34, -all in T. 15 N. R. 11 W. of 3d P. M. The devise was subject to the following charge, viz.: an annuity of $500 to be paid by the son to the widow of the testator during her life; and the payment of $5,000 by the devisee (the son) to the daughters of the testator within one year after the testator's decease. The $5,000 so charged in the devise to the son, together with the residue of the testator's estate, real and personal, was specifically devised to the seven daughters of the testator and their descendants in equal portions. The devise of the testator's estate was to his children, and because of the relation in which they stood, there being an imperfect natural obligation resting upon the father to provide for his offspring, the share of each child as fixed by the will is denominated a child's portion. The portion of the son, as thus determined, was the 198 acres of land described, subject to the payment of the charge thereon; and the one seventh of all the residue of the testator's estate, real and personal, augmented by the sum of $5,000 charged on the devise to the son, constituted the portion of each daughter. As will be observed, the tracts of land devised to the son are not contiguous, the 80 acres on section 34 being a half mile east of the tract on section 33, and separated therefrom by the N. W. of Sec. 34, also owned by the testator. It is suggested that a mistake was made in the will, and that the W. of the N. W. of Sec. 34 was intended, instead of the W. of the N. E. of Sec. 34; and that the conveyance of that 80-acre tract April 7, 1879, was intended to correct such mistake. There is here no latent ambiguity; either tract with the other lands devised would make 198 acres, and was part of the home farm of the testator. This fact is therefore of no significance, except so far as it tends to illustrate the subsequent transactions. However, on the 7th of April, 1879, the testator, for the expressed consideration of $9,920, conveyed to his son said W. of said N. W. of said Sec. 34; and also 43 rods and 11 links off of the west side of the east half of the same quarter section; and 76 rods off of the south end of the E. of the S. E. of said Sec. 28,the last-mentioned tract being one of the pieces of land devised to the son. On the 8th of March, 1882, the testator, apparently having determined to administer upon his estate himself, so far as it consisted of real estate, conveyed all his land to his son for the expressed consideration of $12,400; he conveyed by deed of general warranty the E. † of the N. E. of Sec. 33 (being one of the tracts devised to the son), and 76 rods off of the south end of the W. of the S. E. of said Sec. 28 (excepting family graveyard); which deed contains the following express stipulation: "All the foregoing described premises being subject to the condition and charges upon the premises, as specified in the last will and testatment of said William Richardson, said will dated August 5, 1875." There then follow other lands conveyed, not, however, subject to such charge. On the same day the testator sold and conveyed the residue of his lands to one_Lazenby, including the said W. of the N. E. of Sec. 34, appearing by the will to be devised to the son. It is apparent that all of said land conveyed to the son was a gift by his father, except, perhaps, the 43 acres off of the west side of the E. of the N. W. of Sec. 34, which the son is shown to have claimed that he paid for. On the 13th of April, 1882,-a month and five days after the several conveyances on the occasion before referred to,-the testator gave to each of his daughters $2,500, and to his $10, using in making such gift, in part, the proceeds of the land sold to Lazenby, among which, as we have seen, was 80 acres (W. N. F. Sec. 34) devised to appellant. These gifts were made by placing the amounts in an envelope and handing the same to the several beneficiaries, and were unaccompanied by any statement, oral or written, expressive of the intent of the donor in making the same. It is insisted that by the sale to Lazenby, and the use of the proceeds of the 80-acre tract last mentioned, real estate of the value of more than $5,000 "was taken from the devise to Peter" (appellant), and its identical proceeds were handed over to the daughters "by the testator;" and that it must be presumed that the legacy of $5,000 charged on the land of appellant was intended to be satisfied. The deed to appellant of March 8, 1882, adopts and recognizes the will of the grantor as determining the charge and condition upon which the conveyance of the two tracts first named therein was made; and appellant, having acquired title thereunder, took the title subject to the charge. By reference to the will it is seen that part of this charge and condition was the payment by appellant of the legacy of $5,000 to the daughters within one year after the testator's death. No extended discussion of the contention of appellees' counsel-that the sum charged upon the land must in any event be paid by appellant, and, if adeemed, would go to swell the residuum of the estate-is required, as the cause must at last, on other grounds, be determined in their favor. But it may be said, the will remaining ambulatory, a subsequent gift or advancement by the testator to the legatees, with the intention that it should be in lieu and discharge of the legacy, would be an ademption thereof, and in such case the particular legacy adeemed would, as it is said, be removed or taken away by the act of the testator (1 Pom. Eq. 554); and the testamentary gift, having been anticipated and discharged, would stand in the will as a satisfied legacy, forming no part of the will to be carried into execution. Here this particular provision for the daughters was, by the will, raised out of and made a charge upon the land; and it is manifest that upon ademption thereof the charge would be gone. Moreover, the gift by the father to the son was of the beneficial in terest in these lands, subject to the legacy of $5,000 to the daughters; and while he took the land cum onere, the doctrine is that, if there be a grant or devise of the beneficial interest in lands, charged with the payment of debts or legacies, and not upon express trust to pay the same, the grantee or devisee is entitled to the surplus remaining after discharging the debts and legacies charged; and if the charge fails, the advantage accruing from such failure will enure to his benefit. 1 Roper, Leg. chap. 9, § 1; chap. 12, 1, and cases cited. ger, the intention of the testator to satisfy the legacy by a subsequent gift, unless the legacy and gift be given for the same specific purpose, must be expressed. The question there arises upon construction of the express words of the donor, unaided by any presumption in favor of the satisfaction of the prior legacy. If the relation of the donor be that of parent, the presumption at once arises that the subsequent gift, if ejusdem generis, was intended to be in satisfaction of the prior legacy. The rule is based upon the equitable presumption that a parent, or one standing in loco parentis, and owing a like natural duty to all of his children, would not, after having voluntarily established the portion each should receive of his estate, take from one to his detriment, for the purpose of benefiting another. The natural obligation of the parent to provide for his offspring is an imperfect obligation, and the portion of each child remains wholly under the control of the testator and may be changed at his pleasure. The rule is based upon the presumed inten tion of the testator, where he owes a like common obligation to all, not to give one of the objects of his bounty a double portion of his estate to the injury of the others. The rule was created by courts of equity on account of their leaning, as it is said, against double portions, and to facilitate the equitable distribution of estates. Suisse v. Lowther, 2 Hare, 424; 1 Pom. Eq. 554; Story, Eq. Jur.; 1 Roper, Leg. chap 9, § 1; chap. 12, § 1, and cases cited. Hence if a legacy be given by a parent or one standing in loco parentis, and the testator afterwards makes an advancement or gift of money or property, ejusdem generis, to the same beneficiary, the presumption will arise that the gift was intended in satisfaction of or substitution for the prior legacy; and unless this presumption be rebutted, an ademption in full or pro tanto, as the gift is equal to or less than the prior benefit, will take place. When the equi table presumption arises, and the rule applies, the ademption in whole or in part is complete by the act of the donor in conferring the two benefits from which the intention of substitution is implied. But the rule resting upon a presumption of a fact,—that is the intention of the testator or donor,-extrinsic evidence is admissible to aid or rebut the presumption. Mr. Pomeroy quotes appropriately Lord Romily, M. R., as saying in Cooper v. Cooper, L. R: 8 Ch. App. 813 "If the testator stands in loco parentis, the presumption of equity being against double portions, the presumption of satisfaction arises at once, and includes everything that the father gives which he intended to be in satisfaction of his previous promised benefits; and evidence is admissible for the purpose of rebutting or sustaining the presumption against double portions, which in that case is in favor of satisfaction." It is manifest that such evidence will relate only to the subsequent In determining whether an ademption bas gift by reason of which it is alleged the ademp taken place, or the doctrine applicable, it is al- tion has taken place. The provisions of the ways important to observe whether the donor will cannot be varied or explained by parol; stands in the place of a parent or as a stranger although where the intention of the testator is to the donee, and also if there are words accom- not clear, extrinsic evidence is frequently adpanying the subsequent gift sufficiently express missible to enable the court to read the will to show an intention on the part of the donor from the standpoint of the testator. Wigram, that the latter benefit should be in substitution Wills, 2d Am. ed. 161. Where, as here, the gift of the former. In case the legacy is to a stran-is unaccompanied by any written instrument, |