23 Del. Ch. 27 | New York Court of Chancery | 1938
First, with respect to the $3,700 of Curtis Paper Company notes, the solicitors for Alfred A. Curtis, the legatee named in the seventh item of the will, concedes that his client can make no claim thereto. The concession appears to be entirely justified. The notes are properly to be -regarded as having been accepted by the testatrix in full satisfaction of the overdue interest as cash would have been. Had the testatrix been paid $3,700 in cash, certainly the legatee of the bonds could lay no claim to it. No more can he claim the notes. The executors should, therefore, treat the notes as a part of the residue.
Second. The important question in the case relates to the Curtis Paper Company bonds. What the testatrix bequeathed to her husband was all of the bonds of Curtis and Brother Company which she held, the same being $37,000 in amount. When she died, however, she possessed
The question is, then, does the rather unimportant circumstance of a difference in name of the obligor serve to work an ademption of the legacy bequeathed to the husband of the testatrix?
Ademption is a word of varied meaning. I use it here, quoting from 2 Page on Wills, § 1325, “to indicate the loss of a legacy by the loss or destruction of the subject-matter in the lifetime of the testator, or by the loss, transfer or termination of the testator’s interest therein before his death.”
“I have found no exception to the rule that where the subject matter of a specific devise of real estate has been finally disposed of by the testator in his lifetime by sale thereof, the disposition revokes and nullifies the devise, and there is nothing left upon which the devise can operate.”
After citing authorities in which devises of real estate were involved he proceeded to cite authorities dealing with dispositions of personal property, since, he said, “the same rule applies to legacies.” He then proceeded, as follows:
“The application of the rule is in no wise dependent upon what might seem to have been the intention of the testator. The theory of the law is, that the intention to revoke the devise is expressed by the absolute disposition by the testator in his lifetime of the subject matter of the devise.”
The case before'the Chief Justice was one where the testatrix made a specific devise of real estate owned by her at the date of the will, but which she had sold before her death, taking a purchase money mortgage, which she held at the time of her death, for a portion of the purchase price. He held that the devise had been adeemed and that the mortgage fell into the residue. This evidently was because the subject matter of the devise had become obliterated so far as the testatrix’ interests therein were concerned and the purchase money mortgage was so different therefrom that it could not be regarded as the same and as standing in place thereof.
It is obvious that no comparable difference in identity can be asserted to exist here between the bonds bequeathed
If the alteration in the subject matter of the legacy be purely formal, no ademption is worked. The test which the courts apply is the test of substantial identity. Though the test may be found from an examination of the authorities to be productive of different results when applied to some species of property, yet with respect to corporate stocks and bonds courts are practically unanimous in holding that a legacy of such securities is not adeemed by the circumstance that the bequeathed securities were exchanged by the testator for other securities which he held at death, if the only difference between the two is one in name and form only. In re Bradley’s Estate, 119 Misc. 2, 194 N. Y. S. 888; Skipwith, et al., v. Cabell’s Ex’r., et al., 19 Grat., (Va.) 758; Spinney v. Eaton, et al., 111 Me. 1, 87 A. 378, 46 L. R. A., N. S., 535; In re Peirce, 25 R. I. 34, 54 A. 588; Johns Hopkins University v. Uhrig, 145 Md. 114, 125 A. 606; Goode v. Reynolds, 208 Ky. 441, 271 S. W. 600, 63 A. L. R. 631; In re Leeming, [1912] 1 Ch. 828; Oakes v. Oakes, 9 Hare 666, 68 Eng. Reprint 680, disapproved on another point in Morrice v. Aylmer, [1874-1875] Ch. App. 148.
In some of the foregoing cases the courts extended the application of the rule to more extreme factual situations than we find in the instant case. For. instance, in the case of Skipwith, et al., v. Cabell’s Ex’r., et al., supra, the bonds bequeathed were corporate bonds guaranteed by the State of Virginia while the bonds received in exchange were the sole obligation of the State; and in Goode v. Reynolds, supra, the bank stock bequeathed had been exchanged by the testator for stock in another bank with which the first became consolidated. In cases of this type it could be argued with more force than here that the new security was different in point of substance from the old, because the underlying assets were different. But the rule was
Those courts which treat the question of ademption as one of testamentary intent, appear to lay stress upon whether the testator had of his own free choice and will originated the idea of acquiring the new security. If so they deduce from that circumstance the equivalent of an intent on his part to sell the old one and acquire the new.
In the case at bar, however, there is no room to contend that the testatrix did anything that was the equivalent of a voluntary disposition of the bonds which were the subject of the legacy. All that occurred was that as a result of the so-called reorganization she possessed the same investment as she had when her will was executed, different from the old only in a few immaterial circumstances. The decided weight of authority both American
Decree in accordance with the foregoing.