In re Mary L. Barrows' Estate
| Decision Date | 06 October 1931 |
| Parties | IN RE MARY L. BARROWS' ESTATE |
| Court | Vermont Supreme Court |
May Term, 1931.
Wills---Specific Legacy---Ademption---Effect of Sale of Property During Testatrix's Lifetime Where Bequest was of Proceeds of Property---Assignments---Operation of Bequest of Personal Property---Testator's Intention as to Ademption---Pro Tanto Ademption.
1. Bequest of certain part of specified fund, proceeds of sale of identified property, held specific legacy.
2. Specific legacy may be adeemed.
3. Intent on part of testatrix to make specific legacy necessarily includes intent to render it subject to ademption.
4. Specific legacy is adeemed, and legatee takes nothing, where particular property has ceased to exist or has been disposed of by testator during his lifetime, or where it is so changed in substance that it does not remain in specie at time will goes into effect.
5. Specific legacy is not adeemed where property, although somewhat changed, remains same in substance.
6. Ademption may be pro tanto only where part of property remains intact at time of testator's death.
7. While usually arising in connection with some act of testator with reference to subject of bequest, questions of ademption may arise where there is an involuntary extinguishment of property.
8. Where proceeds of property, and not property itself, was subject of bequest, its character was not lost or its substance changed because sale thereof was subsequently made after testatrix had been adjudged incompetent, by her guardian, during lifetime of testatrix.
9. Where testatrix executed written assignments of certain securities and placed such assignments and securities in separate envelopes addressed to respective assignees envelopes and contents being then placed in her safety deposit box, to which her guardian subsequently appointed had access, and they remained there until after her decease, no transfer of title occurred, since there was no delivery to assignees.
10. Operation of bequest of personal property is referred to condition of that property at death of testator.
11. Will speaks as of time of testator's death.
12. In determining whether there has been ademption of specific legacy, question of testator's intention is immaterial test being whether property remains in specie at time of his death.
13. Where testatrix made specific bequests of part of proceeds of certain property, and, subsequently having been adjudged incompetent and guardian having been appointed, during testatrix's lifetime guardian sold property and expended part of proceeds for her care and maintenance, held that legacies were adeemed to that extent.
APPEAL to Supreme Court, Chittenden County, from decree of distribution made by the probate court for the District of Chittenden under the will of Mary L. Barrows, deceased. The testamentary trustees of the residuum of the estate appealed claiming that the amounts decreed to R. G. Malhiot and another were excessive.
Decree reversed, and cause remanded. Let a decree be entered in conformity with the views herein expressed. To be certified to the probate court.
J. H. Macomber for the appellants.
Present: POWERS, C. J., SLACK, MOULTON, and THOMPSON, JJ.
This is an appeal from a decree of distribution made by the probate court for the District of Chittenden under the will of Mary L. Barrows, deceased. The appellants are the testamentary trustees of the residuum of the estate for certain charitable purposes. The appellees are R. G. Malhiot and Mrs. S. M. Malhiot, legatees.
The tenth paragraph of the will, under which the question here arises, is as follows:
After the execution of the will the testatrix was adjudged incompetent and was placed under guardianship as such. At this time she was possessed of money on deposit in banks, but in the course of time this was exhausted in payment for her necessary care, and the guardian's bank account became overdrawn, and he borrowed a sum of money to pay taxes.
About four years before her death the testatrix was removed to a sanitarium, and thereafter the homestead remained vacant. It was not rentable without substantial repairs, and was deteriorating in condition and depreciating in value. The guardian applied for and received license from the probate court to sell the homestead premises, for the purpose of providing money to pay the bills already incurred and for the future support of the testatrix. Later he sold the homestead and a large part of its contents for the sum of $ 9,000, which was a reasonable price. In making the sale the guardian acted in good faith and without knowledge of the contents of the will.
At the time of the sale the testatrix owned stocks and securities of the fair value of $ 24,000, listed on the New York Stock Exchange and readily salable. Before the appointment of the guardian she had executed assignments of these securities to various persons, and had placed the assignments and the various certificates in separate envelopes addressed to the several assignees, and placed the envelopes and contents in her safe deposit box. None of the assignees knew of the assignments, and no claim is made by any of them to the securities. The guardian had access to the safe deposit box and knew of its contents, but did not feel free to sell any of the securities, since he was uncertain as to the title of the testatrix to them.
The guardian expended $ 2,000 of the sum received from the sale for the necessary support and maintenance of the testatrix. The balance of the money from this source remaining in his hands at the time of her death, and by him transferred to the administrator, c. t. a., was $ 7,000, represented by a separate savings bank deposit of $ 3,000 and a purchase money mortgage of $ 4,000. There are sufficient assets in the estate to pay all the debts, charges, and legacies.
The probate court decreed to each of the appellees one-fourth of the sale price of the homestead and of that portion of the furniture not otherwise disposed of by the will. The trustees have appealed from this decree directly to this Court on the ground that each of the appellees is entitled only to one-fourth of seven-ninths of the sale price, the other two-ninths having been expended during the lifetime of the testatrix for her necessary support, and the legacy having been adeemed to that extent. The position of the appellees is that, since there was other property not specifically bequeathed, which might have been sold to provide support for the testatrix, the act of the guardian in selling the homestead and furniture did not operate even as a partial ademption of the legacy.
Both sides agree that this is a specific legacy, and so it is, for it is a bequest of certain part of the specified fund, i.e., the proceeds of the sale of the identified property. In re Torchiana's Estate, 292 Pa. 470, 141 A. 294, 295; Gelbach v. Shively, 67 Md. 498, 10 A. 247, 248; Meily v. Knox, 191 Ill.App. 126, 137, 138, affirmed 269 Ill. 463, 110 N.E. 56; Ford v. Cottrell, 141 Tenn. 169, 207 S.W. 734, 736, 737; In re Martin, 25 R.I. 1, 54 A. 589, 594, 595. The subject of the gift is not the real estate and furniture, but a designated part of the money received from the sale of it. Since it is specific, it may be adeemed. In re Bradley's Will, 73 Vt. 253, 257, 50 A. 1072; In re Stilphen, 100 Me. 146, 60 A. 888, 891, 4 Ann. Cas. 158. The intent, on the part of the testatrix, to make it specific, which clearly appears from the nature of the bequest, necessarily includes an intent to render it subject to ademption. Mecum v. Stoughton, 81 N.J.Eq. 319, 86 A. 52, 55.
A specific legacy is adeemed, and the legatee takes nothing, where the particular property has ceased to exist or has been disposed of by the testator during his lifetime. Thayer v. Paulding, 200 Mass. 98, 85 N.E. 868, 869; or where it is so changed in substance that it does not remain in specie at the time the will goes into effect. Ford v. Ford, 23 N.H. 212, 215. But not where the property, although somewhat changed, remains the same in substance. Havens v. Havens, 1 Sandf. Ch. 324, 331, 332; Fidelity, etc., Co. v. Young, 101 Conn. 359, 125 A. 871, 873. The ademption may be pro tanto only where a part of the property remains intact at the time of the testator's death. White v. Winchester, 23 Mass. 48, 57; Richards v. Humphreys, 32 Mass. 133, 137; Walton v. Walton, 7 Johns. Ch. 258, 265, 11 Am. Dec. 456. Questions of ademption usually arise in connection with some act of the testator with reference to the subject of the bequest, but may do so where there is an involuntary extinguishment of the property. See cases cited, 43 Harv. Law Rev. 1311.
As to whether, in cases not involving a fortuitous destruction of the subject-matter, there must be an intention on the part of the testator in order to work an ademption the authorities have not been harmonious. In Roman law, an animus adimendi was necessary. Just. Dig. Lib. 11, tit. 20, para. 12. But, by the decided weight of modern authority, intention is immaterial. Thus, in In re Brann, 219 N.Y. 263, 114 N.E. 404, L.R.A. 1918B, 663, 665, Cardozo, C. J., says: ...
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