Mason's Estate, In re

• Citation: 42 Cal.Rptr. 13,397 P.2d 1005,62 Cal.2d 213
• Court: United States State Supreme Court (California)
• Decision Date: 15 January 1965
• Parties: , 397 P.2d 1005 In re ESTATE of Mary MASON, Deceased. SECURITY FIRST NATIONAL BANK, as Executor, etc., Petitioner and Respondent, v. Robert T. FAIRBANK, Objector and Appellant; Katherine McKenna, Beneficiary and Respondent. L. A. 27733.

Page 13

42 Cal.Rptr. 13

62 Cal.2d 213, 397 P.2d 1005

In re ESTATE of Mary MASON, Deceased.

SECURITY FIRST NATIONAL BANK, as Executor, etc., Petitioner and Respondent, v. Robert T. FAIRBANK, Objector and Appellant;

Katherine McKenna, Beneficiary and Respondent.

L. A. 27733.

Supreme Court of California, in Bank.

Jan. 15, 1965.

Rehearing Denied Feb. 10, 1965.

Ardy V. Barton, Santa Barbara, for objector and appellant.

Griffith & Thornburgh, Charles B. Voorhis, II, and Yale B. Griffith, Santa Barbara, for petitioner and respondent and beneficiary and respondent.

TRAYNOR, Chief Justice.

Robert T. Fairbank appeals from a decree of final distribution of the estate of Mary Mason. The testatrix devised her home and most of its contents to Robert's mother if she outlived the testatrix and if not, then to Robert. Robert's mother predeceased the testatrix.

Several years after executing her will, the testatrix became mentally incompetent, and the Security First National Bank was appointed guardian of her estate. With the approval of the court the guardian sold the testatrix' home and kept the proceeds of the sale, approximately $21,000, in a separate account. It spent all but $556.66 of this account to support the testatrix, who died without regaining competency.

The trial court decreed that there was a partial ademption of Robert's gift to the extent the proceeds from the sale of the testatrix' home were spent during the guardianship and therefore ordered that only the unexpended proceeds, $556.66, be distributed to him. It ordered distribution of the remainder of the estate, $6,808.08, to the residuary legatees, who are respondent Katherine McKenna, a friend of the testatrix, and eight nieces and nephews.

Robert contends that, in the absence of proof that the testatrix intended an ademption, he is entitled to have the specific gift to him satisfied, so far as estate assets permit, before distribution of any residue.

"Ademption of a specific legacy is the extinction or withdrawal of a legacy in consequence of some act of the testator equivalent to its revocation, or clearly indicative of an intention to revoke. The ademption is effected by the extinction of the thing or fund bequeathed, or by a disposition of it subsequent to the will, which prevents its passing by the will, from which an intention that the legacy should fail is presumed." (Estate of Goodfellow, 166 Cal. 409, 415, 137 P. 12, 15, quoting from Kramer v. Kramer (5th Cir. 1912) 201 F. 248, 253.) A change in the form of property subject to a specific testamentary gift will not effect an ademption in the absence of proof that the testator intended that the gift fail. (Estate of Stevenes, 27 Cal.2d 108, 115-116, 162 P.2d 918; Estate of Moore, 135 Cal.App.2d 122, 130-134, 286 P.2d 939; Estate of MacDonald, 133 Cal.App.2d 43, 45, 48, 283 P.2d 271; Estate of McLaughlin, 97 Cal.App. 485, 489, 275 P. 875; see Estate of Calori, 209 Cal.App.2d 711, 712, 26 Cal.Rptr. 281; Estate of Cline, 67 Cal.App.2d 800, 805-806, 155 P.2d 390; 43 Cal.L.Rev. 151.) Accordingly, when the guardian of a mentally incompetent testator has sold property subject to a specific gift in his ward's will, the beneficiary is awarded the proceeds of the sale. (See Wilmerton v. Wilmerton (7th Cir. 1910) 176 F. 896; Lewis v. Hill, 387 Ill. 542, 56 N.E.2d 619; In re Estate of Bierstedt, 254 Iowa 772, 119 N.W.2d 234; Walsh v. Gillespie, 338 Mass. 278, 154 N.E.2d 906; Bishop v. Fullmer, 112 Ohio App. 140, 175 N.E.2d 209; Duncan v. Bigelow, 96 N.H. 216, 72 A.2d 497; In re Cooper, 95 N.J.Eq. 210, 123 A. 45; 51 A.L.R.2d 770; 6 Page, Wills (3rd rev. ed. 1962) § 54.18, pp. 271-274. Contra Matter of Ireland, 257 N.Y. 155, 177 N.E. 405; Hoke v. Herman, 21 Pa. 301.) The reasons for refusing to find an ademption upon the guardian's sale are: (1) The incompetent testator lacks intent to adeem (see Wilmerton v. Wilmerton, supra, 176 F. at pp. 899-900) and the opportunity to avoid the effect of an ademption by making a new will. (See Walsh v. Gillespie, supra, 338 Mass. at p. 283, 154 N.E.2d 906; 74 Harv.L.Rev. 741, 745.) (2) A contrary rule would allow the guardian, by changing the form of guardianship property, to determine the distribution of the estate. (See In re Cooper, supra, 95 N.J.Eq. at p. 213, 123 A. 45; In re Estate of Bierstedt, supra, 254 Iowa at p. 778, 119 N.W.2d 234; 6 Page, Wills, supra, at pp. 273-274.)

Respondents contend, however, that when proceeds from the sale of specifically devised property have been consumed during guardianship, adeption necessarily occurs. We do not agree with this contention. Although a specific testamentary gift is adeemed regardless of the testator's intention when the specific property has been disposed of by the testator and cannot be traced to other property in the estate (see Prob. Code, § 161, subd. (1); Estate of Buck, 32 Cal.2d 372, 196 P.2d 769; Estate of Goodfellow, 166 Cal. 409, 137 P. 12), or when the testator has placed the proceeds of such property in a fund bequeathed to another (see Estate of Babb, 200 Cal. 252, 252 P. 1039), it does not follow that there is an ademption when the specific property has been sold and the proceeds spent by a guardian during an incompetency from which the testator does not recover.

To permit such an ademption would allow the guardian to destroy his ward's testamentary plan even though the guardian was acting to protect the ward's economic interests. It is true, of course, that whenever it is necessary to dispose of the ward's assets to manage his estate properly and provide for his needs, his testamentary scheme may be adversely affected. Moreover, if there were no better alternative, we might be persuaded by the decisions from other jurisdictions holding that there is a pro tanto ademption to the extent that the proceeds of a sale of a specific gift have been used by the guardian for the care of an incompetent testator. (See Lewis v. Hill, 387 Ill. 542, 56 N.E.2d 619; In re Estate of Bierstedt, 254 Iowa 772, 119 N.W.2d 234; Walsh v. Gillespie, 338 Mass. 278, 154 N.E.2d 906; Morse v. Converse, 80 N.H. 24, 113 A. 214; In re...