Mee v. Cusineau

• Decision Date: 15 March 1948
• Docket Number: 4-8468
• Citation: 209 S.W.2d 445,213 Ark. 61
• Parties: Mee v. Cusineau, Executrix
• Court: Arkansas Supreme Court

209 S.W.2d 445

213 Ark. 61

Mee v. Cusineau, Executrix

No. 4-8468

Supreme Court of Arkansas

March 15, 1948

Rehearing Denied April 12, 1948.

Appeal from Garland Probate Court; Sam W. Garratt, Judge.

Reversed.

Wootton Land & Matthews and James L. Byrd, for appellant.

Mallory & Rasmussen, for appellee.

OPINION

Smith J.

Bertha J. Busch died testate December 5, 1946, and her will, dated June 11, 1945, was duly probated. The executrix named in the will duly qualified, and this litigation arose over the disbursement of the assets which she had reported in her inventory.

The will consisted of 10 paragraphs. The first of these directed the payment of her debts, and the second gave directions as to her funeral. The third and fourth paragraphs made bequests of $ 100 to each of two persons named. The fifth paragraph reads as follows:

"I hereby give, bequeath and devise to my niece, Bertha Kirchgraber Cusineau, of Hot Springs, Arkansas, all of my personal property of whatever kind and character, including household and kitchen furniture, wearing apparel and jewelry, and all moneys of which I may die seized and possessed, excepting, however, the specific bequests hereinbefore made."

The sixth paragraph named Bertha Kirchgraber Cusineau, her niece, as executrix, and the seventh paragraph devised to this niece "all of the lots owned by me, or in which I have an equity or interest at the time of my death in the Busch Park Addition, . . ."

The eighth paragraph reads: "I give, devise and bequeath the real estate owned by me, or in which I have an equity or interest at the time of my death, known as the 'McClendon Springs Property' (which is described) to the following parties and persons and in the following proportions, to-wit:" (a) One-fourth to St. John's Catholic Church, (b) one-eighth to the Sisters of St. John's Place, (c) one-eighth to the Good Shepherd's Convent, (d) one-fourth to Ada Busch Harrison, a niece, (e) one-fourth to Mrs. Mary Louise Busch Mee, the legally adopted daughter of the testatrix deceased sister.

Paragraph nine devises small sums of money to numerous persons and concludes with this statement: "It being my intention to except in this instance Bertha Kirchgraber Cusineau for whom I have made separate provision in this will."

Paragraph 10 contained provisions designed to circumvent a contest of the will, which has not been contested as this litigation involves not its validity, but its construction. When all of these paragraphs are read together, the entire estate is disposed of.

The McClendon Springs property was a 230-acre tract of land about five miles east of the City of Hot Springs, on which there were a number of springs, the water from which had been sold over a long period of time. Miss Busch had constructed a few houses on the property, which she rented to visitors and in one of which she resided with her niece, Miss Cusineau, who had lived with Miss Busch for a period of 17 years before the execution of the will. Miss Busch owned another tract of land which she had sub-divided into blocks and lots, which she sold under contracts providing that when the last payment of purchase money had been made, deeds would be executed to the purchaser. Some of these contracts had been fully paid, and deeds made prior to Miss Busch's death, and there are a number of contracts on which payments are still being made. This litigation does not involve those lots.

On January 14, 1942, Miss Busch entered into a contract with one Gecks for the rental, with the option to purchase, the McClendon Springs property, which eventuated in the litigation reported in the case of Busch v. Gecks, 209 Ark. 431, 190 S.W.2d 625. This contract was rescinded on June 19, 1946, and on the same day Miss Busch conveyed the property to Rayow, Young and Colish by warranty deed, reserving for herself a life estate in one acre of the land on which she had a home. The consideration for this deed was the sum of $ 21,190, evidenced by notes for that amount for the security of which the grantees executed to Miss Busch a mortgage on the land.

On the same day the grantees executed two warranty deeds, by one of which they conveyed 20 acres of the land, and 50 acres by the other, and on the same day Miss Busch executed releases of these two tracts of land from the mortgage.

The court found on the hearing of the exceptions to the settlement of the executrix, that by these conveyances executed subsequent to the date of the will there had been an ademption of the devises of the McClendon Springs property, and that the unpaid purchase money notes became the property of Miss Cusineau under paragraph five of the will.

At § 341, 28 R. C. L. 345, appears statements of the law to the following effect. The distinctive characteristic of a specific legacy is its liability to ademption. If the identical thing bequeathed is not in existence, or has been disposed of so that it does not form a part of the testator's estate, at the time of his death, the legacy is extinguished or adeemed, and the legatee's rights are gone. The rule is universal that in order to make a specific legacy effective the property bequeathed must be in existence and owned by the testator at the time of his death, and the nonexistence of property at the time of the death of a testator which has been specifically bequeathed by will is the familiar and almost typical form of ademption. Many cases supporting this text are found in the annotation to the case of Eddington v. Turner, 38 A.2d 738, 155 A. L. R. 562; Brady v. Paine, 391 Ill. 596, 63 N.E.2d 721, 162 A. L. R. 138.

In the body of the opinion last cited it was held that a disposition by testator in his life time, of property specifically devised operates as a revocation of the devise; and a conveyance of a part of such property operates as an ademption...