#### Ross’ Executor *vs*Carpenter and Wife.

Error to the Garrard Circuit.

*Devises. Ademption of Legacies.*

Chancery. *Case*80.

*June*7.

The case stale d

If property specifically devised be not in existence at the date of the testator, the devise eanot take effect — So a sale of the specific thing by the testator defeats the bequest —or the receipt by the testator of a debt, whether by voluntarily or ' compulsory payment. (7 *Johnson’s Gh. Eep.,*262; *Williams on Ez’ors.,*949.V

•Judse Simpson

delivered the opinion of the Court.

In April, 1834, Elizabeth Ross made and published her last will and testament, in which she devised to her •daughter, Polly Carpenter, a slave named Harvey.

Afterwards, and during the lifetime of the testator, the slave so devised, died, in consequence of injuries inflicted on him by Thos. Kennedy and others. Elizabeth Ross, during her life, brought a suit against the persons concerned in the trespass on the slave, and *recovered*a judgment against them for the sum of one hundred and ninety five dollars and costs, which she collected.

After the death of Elizabeth Ross, this suit was brought by Carpenter and wife, asserting a claim to the amount of the judgment recovered for the injury to the slave, which they contended belonged to the devisee in lieu of the slave devised to her.

This claim cannot be sustained.' The devise was of a particular slave by name. It was specific in it's nature, and the death of the slave in the lifetime of the testatrix, operated as an ademption of it, upon the clear principle, that the subject being extinct, the specific devise could not possibly take effect: (1 *Roper on Legacies,*243.)

The doctrine is well settled, that the question of ademption by the death or destruction, or sale of the thing devised, or the payment of a debt specifically bequeathed', whether a voluntary payment by the debtor, or one by compulsion of the testator, is not one of intention, but an ademption is thereby effected, upon the principle before stated, that the subject is annihilated, or its condition so altered, that nothing remains to *368which the’terms of the bequest can apply': (7 *Johnson's*C. *R.,*262; 2 *Williams on Executors,*949.)

*-Burton*for plaintiff; *Turner*for defendants.

The devise in this case being specific, would only take effect by the delivery of the identical slave devised, and as it was not living at the death-of the testatrix, the devise was inoperative. , The testatrix did not, after the death >of the slave, make any bequest out of the residue of her estate, to compensate the devisee for the ■less of the thing devised, nor did she appropriate for that purpose the sum recovered for the injury indicted on the slave. The devisee, therefore-, is not entitled, under the will, l*o anything on account of the death of the slave, nor to compensation out of the residue of ¡the estate:: (1 *Vern. Rep.,*31.)

It might be urged, however, that the amount recovered by the testatrix for the injury to the slave, increased to that extent, the residue of the estate, and therefore it would be equitable to decree it to the devisee, as ¡a compensation for the loss incurred by the failure of the devise. But there would be as much propriety, where the thing devised had been sold by the testator, ¡and the purchase money collected by him, to decree it to the devisee in lieu of the devise, which had been rendered ineffectual by the sale, as there would be t© ■snake a decree in this case in favor of the 'devisee for the money recovered by the testatrix in her lifetime for the injury to the slave.

The Circuit Court having rendered-a decree *in*favor «of Carpenter and wife, it is reversed, and cause remanded, with directions to dismiss the complainant’s bill, with costs.