Moffatt v. Heon

• Citation: 136 N.E. 123,242 Mass. 201
• Parties: MOFFATT v. HEON et al.
• Decision Date: 01 July 1922
• Court: United States State Supreme Judicial Court of Massachusetts

242 Mass. 201

136 N.E. 123

MOFFATT

v.HEON et al.

Supreme Judicial Court of Massachusetts, Suffolk.

July 1, 1922.

Appeal from Supreme Judicial Court, Suffolk County.

Proceeding by Louise Moffatt, administratrix of Peter Thuillet, deceased, against Victorine Heon and others, in which the defendants appealed from a decree allowing the first and final account of the administratrix. From a final decree, affirming the decree of the probate court, defendants appeal. Affirmed.

The administratrix in her account claimed credit for a payment to herself as residuary legatee. The defendants objected to this item of the account, claiming that the amount thereof should have been paid to them as legatees. Defendants introduced letters written by the testator, claimed to show his intention that the proceeds of the mortgage should go to the legatees, but the court excluded the evidence.

Russell, Pugh & Joslin, of Boston, for appellants.

Delavan C. Delano, of Boston, for appellee.

DE COURCY, J.

By the fourth clause of his will Peter Thuillet bequeathed a certain mortgage to a trustee, in trust to collect the amount due thereon and to pay the proceeds to his sister and two nieces, the appellants, who reside in France. Under the fifth clause he gave the residue of his estate to Mrs. Louise Moffatt, with whose family he had lived for about 40 years. The will was executed on December 31, 1912. The mortgage, which was for $3,000, was paid off August 11, 1914, and the proceeds were deposited by the testator in three savings banks. Thuillet died in 1917, at the age of 82. No trustee has ever been appointed under said fourth clause, because the mortgage, which was the only property to be held in trust, was not owned by the testator at the time of his decease. The first and final account filed by the administratrix with the will annexed shows an estate inventoried at $3,314.17, and amounting with interest to $3,628.90. The schedule of payments, after accounting for debts and charges of administration, discloses the payment of the balance, $2,693.90, to Louise Moffatt, as residuary legatee (item 24).

The account was duly allowed by the probate court, and a single justice of this court affirmed the decree. This appeal is based upon the contention of the appellants that the legacies to them were not adeemed, and that said $2,693.90 represents the proceeds of the mortgage and is payable to them, and not to the residuary legatee.

The gift of the mortgage under article fourth of the will was plainly a specific legacy within the accepted definition formulated in Tomlinson v. Bury, 145 Mass. 346, 347, 14 N. E. 140,1 Am. St. Rep. 464:

‘A specific legacy is one which separates and distinguishes the property bequeathed from the other property of the testator, so that it can be identified. It can only be satisfied by the thing bequeathed; if that has no existence, when the bequest would otherwise become operative, the legacy has no effect.’

The distinctive characteristic of such a legacy is its liability to ademption or extinction. 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. As was said in Tomlinson v. Bury, supra, 145 Mass. at page 348, 14 N. E. at page 140:

‘If the testator subsequently parts with the property, even if he exchanges it for other property or purchases other property with the proceeds, the legatee has no claim on the estate for the value of his legacy. The legacy is adeemed by the act of the testator.’

In that case the bequest was of ‘all the mill stock and bank stock remaining in my name after the decease of my said wife,’ and it was held to be specific and not general.

This rule of the ademption of specific legacies has long been recognized in our decisions. In Ballard v. Carter, 5 Pick. 112,16 Am. Dec. 377, where a mortgage, owned by the testator when he made the will, would have passed under the residuary clause as a specific legacy, and he subsequently foreclosed the mortgage and took a deed of the property, it was held that the legacy was adeemed. Parker, C. J., said (5 Pick. 116):

‘One principle runs through all the cases * * * and that is, that the devisor must be seised of the same estate at the time of his death, that he was seised of when he made his will, to make it a good devise. In other words, that any alteration in the estate after the making of the will, amounts to a revocation.’

As stated by Shaw, C. J., in Richards v. Humphreys, 15 Pick. 133. 135:

‘The ademption of a specific and of a general legacy depends upon very different principles. A specific legacy of a chattel, or a particular debt, or parcel of stock, is held to be adeemed, when the testator has collected the debt, or disposed of the chattel or stock, in his lifetime, whatever may have been the intent...