Walsh v. Gillespie

• Decision Date: 08 January 1959
• Parties: Dorothy Austin WALSH v. Cora GILLESPIE, executrix and others.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 906

154 N.E.2d 906

338 Mass. 278

Dorothy Austin WALSH v. Cora GILLESPIE, executrix and others.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued Oct. 10, 1958.

Decided Jan. 8, 1959.

Jules E. Angoff, Boston, and Walter J. Hurley, West Roxbury, for petitioner.

Levin H. Campbell, III, Boston, Patricia A. Wilbert, Marblehead, for respondents, Thomas and others.

Before WILKINS, C. J., and RONAN, SPALDING, COUNIHAN and CUTTER, JJ.

SPALDING, Justice.

On May 24, 1950, Florence I. Treet, late of Medford (hereinafter called the testatrix), made a will in which she gave to Cora Gillespie and Dorothy Austin Walsh 'all Du Pont Stock that I may have at the time of my death, in equal shares, share and share alike.' On August 15, 1955, because of the advanced age and mental weakness of the testatrix, J. Howard Macaulay was appointed temporary conservator of her property by the Probate Court for Middlesex County. On October 10, 1955, Mr. Macaulay was appointed permanent conservator. At the time of these appointments and for some time prior thereto the testatrix owned one hundred shares of common stock of E. I. du Pont de Nemours & Company, Inc.

On November 18, 1955, the conservator sold fifty shares of the du Pont stock for the net sum of $12,089.93. Immediately prior to the sale the assets of the testatrix consisted of her home worth about $12,500, one hundred shares of du Pont stock, household furnishings worth approximately $900 and bank accounts totaling slightly less than $800.

The testatrix died on December 30, 1955. At that time the sum of $10,344.90 from the proceeds of the sale of du Pont stock remained unexpended, the sum of approximately $1,700 therefrom having been used by the conservator for the maintenance and support of the testatrix.

This petition is brought by Dorothy Austin Walsh (one of the two legatees of the du Pont stock) to have her rights in the unexpended proceeds of the sale of fifty shares determined. The case was submitted on a statement of agreed facts and reported to this court without decision. G.L. c. 215, § 13.

The question for decision is whether the sale of the du Pont stock by the conservator worked an ademption, to the extent of fifty shares, of the specific bequest of that stock to the petitioner and Cora Gillespie. The petitioner does not contend that she is entitled to any portion of the proceeds from the sale that was expended by the conservator on behalf of the testatrix. She asserts a right only to one half of the unexpended proceeds of the sale.

The parties agree--and rightly--that the bequest of the du Pont stock is specific. Tomlinson v. Bury, 145 Mass. 346, 14 N.E. 137. Moffatt v. Heon, 242 Mass. 201, 203, 136 N.E. 123. The distinctive characteristic of such a legacy is its liability to ademption or extinction, for it can only be satisfied by the thing bequeathed. Thus a specific legatee takes nothing where the property has ceased to exist or had been disposed of by the testator during his lifetime. Moffatt v. Heon, 242 Mass. 201, 203, 136 N.E. 123.

In situations not involving a fortuitous destruction of the property, under the early common law (following the roman law), ademption was considered as a species of revocation and could take place only if the testator so intended; there must be an animus adimendi. 45 Harv.L.Rev. 710. Warren, The History of Ademption, 25 Iowa L.Rev. 290, 296-300. Page on Wills (3d ed.) § 1526. But since Lord Thurlow's decision in 1786 in Ashburner v. Macguire, 2 Bro.Ch.C. 108, intent has ceased to be of importance either in England or in this country. Warren, supra, pp. 304-319. In general it may be said that 'What courts look to now is the fact of change. That ascertained, they do not trouble themselves about the reason for the change.' Per Cardozo, J., in Matter of Brann, 219 N.Y. 263, 268, 114 N.E. 404, 405, L.R.A.1918B, 663. This has been called the 'identity' theory in contradistinction to the 'intent' theory.

In this Commonwealth, although there is an intimation in an early case (White v. Winchester, 6 Pick. 48, 56) that intention to adeem may be of importance, the law has since been settled otherwise. In Richards v. Humphreys, 15 Pick. 133, at page 135, it was said by Chief Justice Shaw, '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 or motive of the testator in so doing' (emphasis supplied). This statement was quoted with approval in Moffatt v. Heon, 242 Mass. 201, 204, 136 N.E. 123. There can be no doubt, therefore, that in common with the great weight of modern authority this court is committed to the 'identity' theory and ordinarily looks only to the existence or nonexistence of the subject matter of the specific legacy.

But there is one situation where some courts have refused to apply the 'identity' doctrine. Thus where a testator, as in the present case, has become incompetent and his affairs are being conducted by a conservator or guardian the majority view in this country is that the sale of the property by the conservator or guardian does not work an ademption of a specific legacy, at least so far as the proceeds are traceable. Wilmerton v. Wilmerton, 7 Cir., 176 F. 896, certiorari denied 217 U.S. 606, 30 S.Ct. 696, 54 L.Ed. 900; Lewis v. Hill, 387 Ill. 542, 56 N.E.2d 619; Buder v. Stocke, 343 Mo. 506, 121 S.W.2d 852; Morse v. Converse, 80 N.H. 24, 113 A. 214; Duncan v. Bigelow, 96 N.H. 216, 72 A.2d 497; In re Cooper's Estate, 95 N.J.Eq. 210, 123 A. 45, 30 A.L.R. 673. See Roderick v. Fisher, 97 Ohio App. 95, 122 N.E.2d 475, 51 A.L.R.2d 792. None of these cases takes the position that this principle applies to that portion of the proceeds which have been expended for the support of the ward. It seems to be generally recognized that as to such expenditures the specific legacy is adeemed pro tanto.

In England and in a few jurisdictions in this country, the courts have applied the 'identity' rule and have held that where the subject of a specific legacy has been sold by a conservator, guardian or committee of an incompetent ward the legacy was adeemed, notwithstanding the fact that the proceeds of the sale were earmarked. Jones v. Green, 5 L.R.Eq. 555. In re Freer, 22 Ch.D. 622. Matter of Ireland's Estate, 257 N.Y. 155, 177 N.E. 405. Hoke v. Herman, 21 Pa. 301. In re Barrows' Estate, 103 Vt. 501, 156 A. 408. See generally on this subject Page on Wills (3d ed.) § 1530, and notes in 51 A.L.R.2d 770, and 61 A.L.R.2d 449, 468. See also note in 45 Harv.L.Rev. 710. ¹

The divergence of views on this question has not been confined to courts. Distinguished scholars have likewise differed. Thus Professor Page favors the majority view, while Professor Warren prefers the minority view. See Page on Wills (3d ed.) § 1530; Warren, The History of Ademption, 25 Iowa L.Rev. 290, 323, 325.

In this Commonwealth the question at hand has never been passed on and we are free to choose between the two views. There can be no doubt that, from the standpoint of logic and symmetry, there is much to be said for the minority view. It is easy to apply and avoids the elusive and troublesome questions of intent. But the results of the minority view are harsh and some of the courts that have applied it have said as much. Thus in In re Freer, 22 Ch.D. 622, Mr. Justice Chitty at the conclusion of his judgment said, 'I regret the result, but I consider the case to be plain' (p. 628). It is apparent that the results of the English rule have not proved satisfactory, for it has now been abrogated by statute. 53 & 54 Vict. c. 5, § 123(1). 12 & 13 George V, c. 60, § 2. See In re Walker, [1921] 2 Ch. 63. Compare In re Palmer, [1945] Ch. 8. Ontario has a similar statute. Revised Statutes of Ontario (1950) c. 230, § 18.

In Matter of Ireland's Estate, 257 N.Y. 155, 177 N.E. 405, which is probably the leading American case favoring the minority view, the court did not rest its decision entirely on a remorseless application of the 'identity' rule but went on to assess the probable intent of the testator and pointed out that the residuary legatees...