Page:Harvard Law Review Volume 10.djvu/78

52 52 HARVARD LAW REVIEW. death occurred, for the purposes of giving it proper care and burial. This right of undisturbed possession which vests in the husband or wife or next of kin of the deceased is clearly one that the law can protect, and the decision of the New York court in sustaining an action for its violation seems entirely sound. Even if so clearly defined a legal right did not exist, the courts would probably have no trouble in supporting an action of this sort on some broader ground. It is one of those instances where failure of justice would involve such a shock to every feeling of decency and propriety that the law positively must disclose a principle to cover it. The development in recent times of such rights as -the right to privacy shows that the common law is ever ready to expand in re- sponse to demands of that nature. Ademption of General Legacies. — That a gift by a testator during his lifetime will often be regarded in law as a satisfaction of a legacy of money under a previously executed will, is clear. But the circumstances under which this so-called ademption of the legacy takes place have not always been sharply defined, and the various rules laid down by judges in attempting to define them led to much confusion in the early cases. It is consequently agreeable to find the subject so clearly and satisfac- torily treated as it is by the Michigan court in the recent case of Car- tnichael v. Lathrop^ 66 N. W. Rep. 350. The point decided, namely, that a general bequest to one of the testator's children of a share in the residue of his personal estate would be satisfied pro tanto by a conveyance of real estate during the life of the testator, is well settled in courts of equity. The importance of the case li«s in the fact that it is illustrative of nearly all the leading phases of the doctrine of ademption. The first and most important rule on the subject is, that, while ordi- narily a gift will not adeem a legacy without clear proof of the testator's intention, nevertheless, where the testator is the father of the legatee, or stands in loco parentis to him, the gift will be presumed to be in satisfac- tion of the legacy, in whole or in part, unless a contrary intention appears. Originating in the dislike courts felt for double portions, and their eager- ness to presume that a father intended to deal with all his children alike, the rule has been extended so that it now operates universally, regardless of the inapplicability of the original reason. It has been criticised by eminent writers as unfair to legitimate children, who in this respect are in a worse position than illegitimate children or strangers. Story, Equity Jurisprudence, §§ wio et seq. But though it is often difficult to deter- mine whether the testator stood in loco parentis to the legatee (see Fowys V. Mansfield J 3 Myl. & C. 359), wherever that relation is found to have existed the presumption arises, unless the case falls within certain excep- tions to the rule. Carmichael v. Lathrop, supra, illustrates one of the chief exceptions, namely, that where the legacy and the gift are not ejuS' dem generis the presumption will not arise. " Land is not to be taken in satisfaction for money, nor money for land." Bellasis v. Uthwatt, 1 Atk. 426. Difficult as it may be to find a reason for this exception, it is as well established as the rule itself. Holmes v. Holmes, i Bro. C. C. 555 ; Evans v. Beaumont, 4 Lea, 599. That the presumption did not- arise in the case under discussion proved immaterial, however, as there was ample evidence of the testator's intention, which is always decisive. In the early days the presumption would have fafled in Carmichael v.