275 P. 875 | Cal. Ct. App. | 1929
This is an appeal from a decree of distribution which was made upon the theory that a specific devise of property was adeemed or abrogated by a subsequent change in the character of the property.
The motion of Robert H. Schwab, one of the distributees in the above-entitled estate, to dismiss the appeal so far as it affects the north half of the west half of the east half, the west half and the north seventy-five feet of the east quarter of lot 8 in block bounded by I and J and Fourth and Fifth Streets in the city of Sacramento, California, in which the appellants claim no interest, is hereby granted.
March 15, 1923, the testatrix, Mary Quinn McLaughlin, executed an holographic will, by the terms of which she disposed of all her property to several named legatees and devisees. Unless the devise involved in this case was adeemed and canceled, there was no residuary estate which remained undisposed of. Among other specific devises, the will provided:
"Give and devise to my beloved husband J.D. McLaughlin all of my interest in that certain mortgage against the East half of the North 100 feet of lot 4 block P and Q, 7 and 8 street, Sacramento, California, occupied by Rose, Ann, Callahan."
At the time of the execution of this will, Rose Ann Callahan owed the testatrix $7,800, which was secured by a promissory note and deed of trust, dated December 12, 1919. Subsequent to the execution of the will, and on July 17, 1925, in consideration of the entire satisfaction of said indebtedness, the real property described in the trust deed and in the clause of the will which is involved in this appeal, was conveyed in fee to the testatrix who continued to hold title thereto until her death which occurred October 1, 1926. Upon proceedings duly had the will was admitted to probate and J.D. McLaughlin, the surviving husband of said deceased, was appointed and qualified as executor thereof. In *488 the course of administration, over the opposition of said devisee, J.D. McLaughlin, the said Sacramento lots were distributed to the heirs of said deceased pursuant to the provisions of section 1386 of the Civil Code. From that decree this appeal was perfected.
[1] The bequest in the present case was specific in its nature. (Sec. 1357, Civ. Code; 28 R.C.L. 289, sec. 263.) [2] In determining whether a legacy or bequest is specific, the same test is applied whether it be a gift of real estate or personal property. (Estate of Painter,
[8] The accepting of a deed of conveyance in consideration of the exact indebtedness secured by a mortgage on the same premises, furnishes no evidence of the intent of a testatrix to accomplish an ademption of a devise of the interest in the property represented by the mortgage, where the testatrix retains the property to the time of her death, and *490
subsequently makes no change in the terms of her will. In 40 Cyc. 1046, section C, it is said: "The weight of authority is to the effect that a change, subsequent to the making of the will, in the form of property devised or bequeathed does not prevent the operation of the provisions of the will and the property in its changed form passes to the devisee or legatee." To the same effect section 1303 of the Civil Code provides that: "A conveyance, settlement, or other act of a testator, by which hisinterest in a thing previously disposed of by his will is altered, but not wholly divested, is not a revocation; but the will passes the property which would otherwise devolve by succession." In accordance with this principle it has been held that an exchange of specifically devised shares of stock for other shares is not an ademption. (Havens v. Havens, 1 Sandf. Ch. (N.Y.) 324.) Neither is the exchange of stock for notes of the corporation an ademption. (Estate of Frahm, 120 Iowa, 85 [94 N.W. 444].) Nor the exchange of stock for bonds. (Spinney
v. Eaton,
In Waldo v. Hayes,
In the case of Van Wagenen v. Baldwin,
Tolman v. Tolman,
The Jepson Estate,
The case of Wyckoff v. Perrine,
In the present case the subject of the gift to the husband of the testator was more than a mere debt. It included all her interest in the debt, plus her equitable interest in the land and the legal authority and means of enforcing the payment of the debt. It is true that the acceptance of the deed to the mortgaged land did involve a complete change in the parties to the legal title, but this combined property right of debt and mortgage lien, was not wholly divested by the accepting of the deed for the exact amount of the debt. The equitable interest of the testatrix was merely enlarged to a fee title. The extinguishment of the debt was the accomplishment of an important part of the very thing which was devised, and by means of which that devise was made more certain and valuable. This did not constitute an ademption of the devise or a revocation under the provisions of section 1303 of the Civil Code. It was clearly the purpose of the testatrix to convey this land to her husband by this clause of her will.
The judgment is reversed, and the trial court is directed to distribute said estate according to the foregoing views.
Plummer, J., and Finch, P.J., concurred.