Wright's Will, In re

• Decision Date: 25 February 1960
• Citation: 7 N.Y.2d 365,165 N.E.2d 561,197 N.Y.S.2d 711
• Parties: , 165 N.E.2d 561 In re WRIGHT'S WILL. Accounting of Y. B. GARDEN et al., as Executors of Claire R. Wright, Deceased, Respondents. Mary Robinson et al., Respondents. Helen W. Erskine, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 711

197 N.Y.S.2d 711

7 N.Y.2d 365, 165 N.E.2d 561

In re WRIGHT'S WILL Accounting of Y. B. GARDEN et al., as Executors of Claire R Wright, Deceased, Respondents Mary Robinson et al., Respondents Helen W. Erskine, Appellant.

Court of Appeals of New York.

Feb. 25, 1960.

Melville H. Cane, Pincus Berner and Paul Gitlin, New York City, for appellant.

Selma M. L. Berliner, Ephraim Berliner and Jay H. Rick, New York City, for Mary Robinson, respondent.

FULD, Judge.

The question posed by the appeal involves the doctrine of ademption. Is a specific legacy adeemed if, although the item bequeathed is missing at the time of the testator's death, its value has been paid to the estate by an insurance carrier?

Claire Wright died in May of 1956. By her will, executed the year before, she bequeathed all her 'furs and jewelry, both costume and precious', to Helen Erskine. The testatrix had in 1954 taken out a policy insuring her against the loss of jewelry and furs and in a schedule attached to the policy 27 items were listed, including a diamond ring valued at $4,920 and a gold fountain pen, valued at $75. About a month after the testatrix' death, her executors, following a search of her effects, concluded that the ring and pen were 'missing' and some time late filed a proof of loss for those articles. The insurance carrier, accepting the claim, paid the executors $4,920 on account of the ring. ¹

In their account of proceedings, the executors requested instructions as to the disposition to be made of the insurance proceeds. Objections to the accounting were raised by both Helen Erskine and the testatrix' mother, Mary Robinson, one of the residuary legatees. The former claimed, in effect, that the insurance proceeds should be treated as a 'specific legacy' and paid to her, while Mrs. Robinson urged that the bequest of the ring had been adeemed and that the insurance moneys constitute part of the residuary estate.

The Surrogate's Court sustained Helen Erskine's objection; reasoning that she was 'vested with ownership' of the missing ring, the Surrogate decided that the insurance proceeds belonged to her. Upon an appeal taken by Mrs. Robinson, the Appellate Division took a different view, holding that the specific bequest failed and that the insurance moneys became part of the residuary estate.

As indicated above, we deal with the problem of ademption. Although, in the early days of our law, ademption was based on the intention of the testator, today in New York, as well as in many other jurisdictions, intention has nothing to do with the matter; the bequest fails and the legatee takes nothing if the article specifically bequeathed has been given away, lost or destroyed during the testator's lifetime. See Matter of Brann, 219 N.Y. 263, 267-268, 114 N.E. 404, 405, L.R.A.1918B, 663; Matter of Ireland's Estate, 257 N.Y. 155, 158, 177 N.E. 405; Matter of Johnston's Estate, 277 App.Div. 239, 241, 99 N.Y.S.2d 219, 222, 302 N.Y. 782, 98 N.E.2d 895; Beck v. McGillis, 9 Barb. 35, 56, 58-59; Stanley v. Potter, 2 Cox Ch. 180, 183; Durrant v. Friend, 5 DeG & Sm. 343; Lenzen v. Miller, 309 Ill.App. 617, 628, 33 N.E.2d 765; Hoke v. Herman, 21 Pa. 301, 305; Forster v. Kamba's Estate, 230 Wis. 246, 251, 282 N.W. 570, 119 A.L.R. 1383; see, also, Atkinson, Wills (2d ed., 1953), pp. 741-742; 4 Page, Law of Wills (3d ed., 1941), § 1515 et seq.; 6 Powell, The Law of Real Property (1958), p. 548 et seq.

Thus, wrote the court in Matter of Brann, 219 N.Y. 263, 268, 114 N.E. 404, 405, supra, 'It was once thought that ademption was dependent on intention, and 'it was, therefore, held in old days that when a change was effected by public authority, or without the will of the testator, ademption did not follow. But for many years, that has ceased to be law' (case cited) * * * What courts look to now is the fact of change. That ascertained, they do not trouble themselves about the reason for the change.' The thing given is gone, and a court is not privileged to substitute something else for it. How unimportant the element of intention is, may be gleaned from Matter of Ireland's Estate, 257 N.Y. 155, 177 N.E. 405, 406, supra, where certain stock specifically bequeathed was held to have been adeemed, even though the stock had been sold by the testator's committee after he had become incompetent. This court, after noting that the Appellate Division had declared that 'the intention of the testator was the governing factor in the case, and that, as he had become incompetent to change or modify his will, his committee had no power to dispose of his property * * * so as to work an ademption of the legacy', went on to say (257 N.Y. at page 158, 177 N.E. at page 406): 'The rule as it existed at common law, and still exists, admits of no such exception. * * * The exact thing which was given by the will could not physically be passed on to the legatee. From the very nature of the case and of the gift, the legacy became extinct. In the absence of statute, there is no power in the courts to change a specific into a general legacy or turn over the balance of the proceeds derived from the sale of the specific property to the legatee in place of the particular thing intended to be given.'

What is significant, therefore, is the fact that the precise thing given by the will is not available for disposition at the time of the testator's death, and it matters not whether this came to pass because of an intentional and voluntary act on the part of the testator, such as abandonment, sale or gift, or because of an occurrence, involuntary and unintended, such as condemnation, fire or theft. See Ametrano v. Downs, 170 N.Y. 388, 63 N.E. 340, 58 L.R.A. 719; Matter of Hilpert's Estate, 165 Misc. 430, 300 N.Y.S.2d 886; Matter of Barry's Estate, 208 Okl. 8, 252 P.2d 437, 35 A.L.R.2d 1052; see, also, 2 Jarman, Wills (8th ed.), p. 1065; Huston, Succession, 34 N.Y.U.L.Rev. 1520, 1525-1526; Note, 38 Cornell L.Q. 630.

Indeed, there are at...