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66 Mass. 330

Mitchell v. Danforth

Massachusetts Supreme Judicial Court

Decided October 15, 1853

Massachusetts Supreme Judicial Court · decided 1853-10-15

This action was submitted upon an agreed statement of facts as follows: The defendants’ testator, William Davis, late of Plymouth, died leaving a will, one clause of which was, “ I give to my grandfather, Nahum Mitchell, (the plaintiff,) if he survives me, the property and rights of property devised to me by the will of my mother, Harriet Davis.” The will of Harriet Davis was as follows: “ I give, devise, and bequeath unto my son, William Davis, all the estate, both real and…

Decided 1853-10-15

By the Court.

¶1The portion of his mother’s property, which came to her from her grandfather, and which she in terms devised to the defendants’ testator, William Davis, having been sold by him in his lifetime, and the money received for it, his own devise to his grandfather could not operate upon the money so received. It could not, even if his own will, like that of his mother, had devised certain property described, and the proceeds ” thereof; unless such proceeds remained in mortgages or other securities taken specifically for it, capable of being identified. Even in such case, if he had collected the money due on such securities, in his lifetime, it would have become his own money and operated as an ademption of the legacy.

¶2Judgment for the defendants.

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