In re Ireland's Estate

• Decision Date: 15 July 1931
• Citation: 177 N.E. 405,257 N.Y. 155
• Court: New York Court of Appeals Court of Appeals
• Parties: In re IRELAND'S ESTATE. In re NATIONAL BANK & TRUST CO. OF NORWICH.

257 N.Y. 155

177 N.E. 405

In re IRELAND'S ESTATE.

In re NATIONAL BANK & TRUST CO. OF NORWICH.

Court of Appeals of New York.

July 15, 1931.

Proceedings by the National Bank & Trust Company of Norwich, as executor of the last will and testament of A. Bertsell Ireland, deceased, for judicial settlement of its accounts. From an order of the Appellate Division (231 App. Div. 288, 247 N. Y. S. 267) reversing as a matter of law and remitting a decree of the surrogate setting the account of the executor, Frank L. Ireland and another appeal.

Order of Appellate Division reversed, and decree of Surrogate's Court affirmed.

Appeal from Supreme Court, Appellate Division, Third Department.

V. D. Stratton, of Oxford, for appellants.

Neil G. Harrison, of Binghamton, for respondent.

CRANE, J.

On November 1, 1928, A. Bertsell Ireland, a resident of Chenango county, became so weak and feeble both mentally and physically that his son Frank L. Ireland was appointed committee of his person and estate. At that time the testator owned 94 shares of the common stock of the Ireland Machine & Foundry Company, Inc., and 56 shares of the preferred stock. The committee needed money to support the incompetent, especially as the nurse was receiving $80 a week, or $320 per month for her services. For this reason he sold the preferred stock for the sum of $4,480, and used the money for the support and maintenance of the incompetent until his death, March 1, 1929. The account of the committee was judicially settled in the County Court of Chenango county, and an order made directing him to pay to the executor of the estate of the decedent the balance of cash remaining in his hands, amounting to $1,848.40.

When the will of the incompetent was opened, it was found that he had left and bequeathed unto Lena M. Whitmore the preferred stock in the Ireland Machine & Foundry Company, Inc., which had been sold by the committee. The will was dated May 26, 1926, and was therefore executed more than two years prior to the appointment of the committee and the incompetency of the testator.

The bequest of all the preferred stock to Lena M. Whitmore was a specific legacy, and, as the stock was not in existence at the time the will took effect, or at the death of the testator, there was an ademption, extinction, or withdrawal of the gift. A change in the nature of the property works an ademption. Matter of Brann, 219 N. Y. 263, 114 N. E. 404, L. R. A. 1918B, 663;Hoke v. Herman, 21 Pa. 301.

The Appellate Division was of the opinion that the intention of the testator was the governing factor in the case, and that, as he had become incompetent to change or modify his will, his committee had a no power to dispose of his property or, in this instance, the preferred shares, so as to work an ademption of the legacy. The rule as it existed at common law, and still exists, admits of no such exception. The property constituting the specific legacy had been sold; it had ceased to exist. The exact thing which was given by the will could not physically be passed on to the legatee. From the very nature of the case and of the gift, the legacy became extinct.

In the absence of statute, there is no power in the courts to change a specific into a general legacy or turn over the balance of the proceeds derived from the sale of the specific property to the legatee in place of the particular thing intended to be given. Out of the moneys received from the sale of the preferred shares by the committee there was left a balance over and above expenditures for the incompetent of $1,848.40, which was turned over to the executor as part of the estate. To give this to Lena M. Whitmore in place of the preferred shares might seem equitable, but it is not in...