¶1This action is brought to recover two legacies, one for $3,333.33 and one for $1,000, devised by defendant's testatrix to plaintiffs.
¶2At the conclusion of the testimony it was agreed by the parties that his Honor, acting for and instead of the jury, should answer the issues made by the pleadings, and that his answers should have the force and effect as if they were answered by the jury, and no more, and should be subject to like objection, etc. His Honor, after hearing the evidence, rendered his judgment, to which both parties excepted and appealed.
¶3This is the defendant's appeal. *232 It is admitted that in the second codicil of her will the testatrix devised one-third of $10,000 to "Mary Perkins Grogan for her life and after her death to her daughters who shall then be alive, (288) or if any be dead leaving issue, to her issue, the children taking the share of the parent."
¶4It is admitted that the legacy has not been paid to the plaintiffs, Mrs. Grogan and her daughters.
¶5The defendants, the executors, aver that at the time of the death of the testatrix she, said testatrix, had outstanding against her a note for $2,500 made to the Peoples National Bank of Winston, N.C. the proceeds of which note were obtained for the use of the plaintiff, Mary, and for the benefit of her separate estate, and with the consent of her said husband; and that since the death of said testatrix said note has been paid by defendants at the suit of said bank; and defendants say that it was the intention of said testatrix that said note should be paid out of the legacy made in said codicil. The plaintiffs deny that said legacy was satisfied in the testatrix's lifetime or any part thereof, but aver that said $2,500 was a gift made to the plaintiff Mary P. Grogan to aid her in building a home while her aunt, the testatrix, was on a visit to her at Winston.
¶6The only evidence introduced was by the defendants. They proved by S. A. Ashe the payment of the $2,500 note out of the funds of the estate and introduced the deposition of Mrs. Mary P. Grogan. The substance of her testimony is to the effect that the $2,500 was a gift and so intended by the testatrix.
¶7Upon this evidence his Honor adjudged that the legacy had not been adeemed.
¶8A prior legacy may be adeemed or satisfied by a payment or transfer of property to the legatee made for that purpose by the testator during his lifetime. Gardner on Wills, 567. But whether the testator intended to satisfy a legacy during life by a subsequent gift made to the legatee is largely a question of intention. And parol evidence may be received to establish the plea. 1 Roper, 409; 2 Redfield Wills, 539; Hopwood v.Hopwood, 7 House Lords, 741.
¶9In this case there is no evidence whatever that the $2,500 was intended as a satisfaction pro tanto of the legacy that had already been given in the will. The gift was to Mrs. Grogan, while the legacy (289) was to her for life only and then to her daughters. There is no evidence of any declaration of the testatrix that she so intended the gift, nor are the defendants helped by any rule of presumption. *233
¶10The testatrix did not stand in loco parentis to Mrs. Grogan, and consequently no presumption of ademption arises.
¶11It has been held that where a bequest is made by one standing in locoparentis to the beneficiary, and subsequent thereto payments are made by the testator to the beneficiary equal to or less than the legacy, such payments are prima facie a complete satisfaction or a satisfaction protanto. But if the testator does not stand in loco parentis such payment does not, prima facie, have any relation to the prior legacy. Gardner says that, although criticised, this doctrine has never been denied either in English or American jurisdiction. Wills, p. 569.
¶12We are of opinion that there is no evidence that the testatrix intended the $2,500 as a pro tanto satisfaction of the legacy theretofore devised in the second codicil of her will to Mrs. Grogan and her daughters.
¶13The judgment on defendant's appeal is
¶14Affirmed.
¶15THE PLAINTIFFS' APPEAL. No. 225.