Roderick v. Fisher

• Decision Date: 09 March 1954
• Parties: , 51 A.L.R.2d 762, 54 O.O. 264 Sam W. RODERICK and R. Lee Asbury, Executors, etc., Plaintiffs-Appellees, v. Rose M. FISHER et al., Defendants-Appellees, Michael J. Ready, Bishop of the Columbus Diocese, Defendants-Appellants.
• Court: Ohio Court of Appeals

Page 95

97 Ohio App. 95

122 N.E.2d 475, 51 A.L.R.2d 762, 54 O.O. 264

Sam W. RODERICK and R. Lee Asbury, Executors, etc., Plaintiffs-Appellees, v. Rose M. FISHER et al., Defendants-Appellees, Michael J. Ready, Bishop of the Columbus Diocese, Defendants-Appellants.

Court of Appeals of Ohio, Franklin County.

March 9, 1954.

A. Glenn McClelland, Columbus, for plaintiffs-appellees.

John Benson, Columbus, for defendant-appellee, Rose M. Fisher.

Connor & Connor, Columbus, John D. Connor, Columbus, of counsel, for defendants-appellants.

WISEMAN, Presiding Judge.

This is an appeal on questions of law from the judgment of the Probate Court of Franklin County entered in an action to construe the will of decedent, Herbert H. Fisher, and for a declaratory judgment.

The essential findings of fact by the trial court are as follows:

The decedent, Herbert H. Fisher, executed his will on January 17, 1950, and died on October 26, 1952. Said will was admitted to probate on November 14, 1952, and on the same day letters testamentary were issued by the Probate Court of Franklin County to Sam W. Roderick and R. Lee Asbury as co-executors of said will. Rose M. Fisher is the surviving spouse and the sole heir-at-law of the testator. Item II of said will provides as follows:

'I give and devise my undivided one-half interest in our home property located at 71 Woodland Avenue, Columbus, Ohio, to my wife, Rose M. Fisher, to be hers absolutely and in fee simple.'

In Item IV of said will the testator devised the rest, residue and remainder of his property, real, personal or of a mixed nature, in trust for the support and maintenance of his wife for life, and at her death to be distributed to certain named residuary legatees. During his lifetime the decedent and Rose M. Fisher each owned the undivided one-half interest in the real property known and referred to as 71 Woodland Avenue, Columbus, Ohio. On August 28, 1951, the Probate Court of Franklin County appointed R. Lee Asbury as guardian for said decedent, on the ground of physical incompetency, to which the decedent gave his written consent. The guardian filed an action in the Probate Court of Franklin County to sell the real estate known as 71 Woodland Avenue, joining as defendants Rose M. Fisher and Herbert H. Fisher, the decedent. Rose M. Fisher waived service of summons and entered her appearance and consented to and joined in the sale of said property. Herbert H. Fisher was duly served with summons and was properly before the court, and if fact was consulted and agreed to the sale of said property. On May 19, 1952, the guardian sold said property under order of court and received the proceeds therefor. The guardian distributed one-half of the net proceeds to Rose M. Fisher and retained the other one-half of the proceeds as an asset of the guardianship. A small portion of the net proceeds in the guardianship was used for the support of the ward, and the balance of said proceeds, amounting to $7,271.80, was turned over to the executors and as such is readily identifiable as the proceeds of the sale of the real property. Rose M. Fisher, as surviving spouse, elected to take under the will.

Under the facts found, the widow, Rose M. Fisher, contends that the $7,271.80 turned over to the executors by the guardian, and being readily identifiable as the remaining proceeds of the sale of the real property, passed to her under Item II of the will, to the exclusion of the provisions in Item IV. The residuary legatees contend that there was a revocation or ademption of Item II, by virtue of the sale of the real property, and that, therefore, the $7,271.80 becomes a part of the residuary estate under Item IV.

The Probate Court found that the sale of the decedent's interest in the property known as 71 Woodland Avenue did not operate as an ademption and did not result in a revocation of Item II of the will.

The only assignment of error is that the court below erred in the aforesaid finding.

The factual situation in unusual and the legal question presented is one of first impression in Ohio. Counsel have filed excellent briefs and the authorities cited from other jurisdictions are helpful in determining the question presented.

The courts in the main have adopted either the 'Identity Theory', or the 'Intention Theory'. The 'Identity Theory' is defined in Vol. 28, R.C.L., page 345, as follows:

'If the identical thing is not in existence, or has been disposed of so that it does not form a part of 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 non-existence of the property at the time of the death of Testator, which has been specifically bequeathed by will, is the familiar and almost typical form of ademption.'

A good explanation of the 'Intention Theory' is given by the court in Wilmerton v. Wilmerton, 7 Cir., 176 F. 896, 900, 28 L.R.A.,N.S., 401, as follows:

'The real question is whether, all things considered, the testator's testamentary disposition did, or did not, remain, with reference to the particular thing embodied in the specific bequest or its proceeds, the same as it was the last moment he was able to exercise a testamentary disposition. In that way, and in that way only, we think, can the right of the mad to dispose of his property according to his own wishes, exempt from interference, caprice or interest of others, be fully carried out. In that way only can his intention, as embodied in his will, be truly administered.'

We question whether it is necessary in the instant case to adopt and apply either theory to the exclusion of the other. The case law in Ohio does not indicate that the courts of the state have favored one theory over another. Under a given factual situation the intention of the testator mav be the controlling factor, and under another state of facts the application of the identity theory may be favored and sufficient for a determination without striving to ascertain the intention of the testator. It is interesting to note also that in Page on Wills, Lifetime Ed., Vol. 4, Section 1527, the author in discussing the modern theory, on page 382 states:

'For these reasons, it is now held that the sale, destruction, or collection of the bequest or devise, adeems it without regard to the actual intention of the testator. This is justified, in part, because of the confusion which would arise in attempting to determine the intention of the testator; and in part, because, with the sale, collection, and the like of the bequest, there is nothing in existence which conforms to the gift in the will.'

In Ohio, without question, when a testator wholly divests himself of the property devised in a will, revocation of the devise takes place. Section 10504-51 G.C., Section 2107.36 R.C.; Lewis, Adm'r, v. Thompson, 142 Ohio St. 338, 52 N.E. 2d 331. If the testator in the instant case had not been under guardianship and had sold the property, such sale would have operated as a revocation of the devise, since at his death the identical property was not owned by the testator.

We do not find that there was a revocation under the statute. There is no statutory provision covering this situation.

Was there an ademption of the devise? The terms 'revocation' and 'ademption' are sometimes used interchangeably, but there is a distinction. In Page on Wills, Lifetime Ed., Vol. 4, p. 359, Sec. 1514. In Vol. 41 O.Jur. p. 954, Sec. 836, it is stated:

'Ademption is the extinction or withholding of a legacy in consequence of some act of the testator.

'There are two classes of ademption: (1) Ademption by the loss or destruction of the subject-matter of the legacy or devise; and (2) ademption by satisfaction of the bequest. From the very nature of the first class, it can apply only to specific legacies or devises, while the second applies only to general legacies. * * *

'Ademption by satisfaction is sometimes spoken of as satisfaction of legacies. Whether there is an ademption rests wholly upon the intention of the testator.'

Also Section 837 states:

'Ademption and Revocation Distinguished. Ademption is sometimes spoken of by the courts as if it were a form of revocation. * * * 'But there is a distinction between the two terms. Ademption by satisfaction resembles revocation in that the testator intends such satisfaction to terminate the interest of the legatee under the will. Revocation, however, is made only in accordance with statute, while ademption is not.'

In Section 838 the general rule is stated:

'It may be stated as a general rule that the disposal, loss, distribution, or extinction of the subject-matter of a specific legacy, adeems the legacy.'

There is a footnote to the last quotation, as follows:

'As to ademption of specific devise or bequest by guardian or conservator of incompetent testator, see annotation in 30 A.L.R. 676.'

An ademption is largely a matter of intention. Ellard, Ex'r v. Ferris, Ex'r, 91 Ohio St. 339, 348, 110 N.E. 476, L.R.A. 1916C, 613.

What effect does the guardianship have on the determination of this question? The law applicable to an act of a testator who is competent to act is in some respects helpful but not controlling in a situation where the testator was incompetent and the act was done by the guardian of the testator. In the instant case the guardian was appointed on the ground of physical disability or infirmity of the ward with the consent of the ward as provided in Section 10507-2 G.C., Section 2111.02 R.C. The term incompetent is used with respect to the ward, but it is clear that in this case it does not connote mental incompetency. In other words, the presumption obtains that the ward was mentally competent to the date of his death. A guardian of a physical incompetent has the same powers...