231 A.D. 288 | N.Y. App. Div. | 1931
Lead Opinion
The bequest of the preferred stock to Lena M. Whitmore was a specific legacy. (Crawford v. McCarthy, 159 N. Y. 514, 519.) This stock having been disposed of by the committee of the incompetent testator, Lena M. Whitmore claims the proceeds or the equivalent of the proceeds of that stock. The executor claims that such sale caused an ademption of the legacy and that appellant is entitled to no part of the proceeds thereof.
The general rule in this State is that a specific legacy is adeemed when the property, the subject of the specific bequest, is not in the estate at the time of death. Ademption is not dependent upon the testator’s intent of adeeming. “What courts look to now is the fact of change. That ascertained, they do not trouble themselves about the reason for the change.” (Matter of Brann, 219 N. Y. 263, 268.) This rule has been applied where the alienation is by operation of law. (Ametrano v. Downs, 170 N. Y. 388, 391.) That case involved the sale of real estate which had been specifically devised in condemnation proceedings during the life of the testatrix. The court said: “ The only point to be considered, therefore, is whether a different rule obtains in the case of involuntary alienation, by operation of law, from that which prevails on a voluntary sale; ” and held that a transfer by operation of law during the life of the testatrix caused ademption as does a voluntary transfer. The English rule is the same.
Our question is whether the committee of a testator, who has become incompetent after making his will, can, by a sale of the subject of a specific bequest, nullify that bequest and defeat the declared intention of the testator when there are other assets of the estate not specifically bequeathed sufficient to satisfy his needs.
It does not appear in this record that the committee was authorized by the court to sell this stock, but it does appear that he made his accounting and his account was approved. However, neither the court, nor the committee, was aware of the specific bequest, nor was this appellant or the executor a party to that accounting. Nothing indicates that, had the committee known of the specific bequest, he Would have sold the preferred stock rather than the common stock.
When the committee was appointed the testator’s property passed into the hands of the court to be administered by the com
We do not find any decision in the Court of Appeals, or an Appellate Division, of this State on this question. Contrary to the rule in this State, in the Federal courts the test of intention of adeeming is applied, but still we find support for the above views in Wilmerton v. Wilmerton (176 Fed. 896; writ of certiorari denied, 217 U. S. 606). While the intention test is recognized, the court said (p. 900): “ The question in our judgment is not whether, as a mere matter of accident, or of purpose outside of the testator’s purpose, the
We hold that the specific legacy has not been adeemed. The committee of a testator, who has become incompetent and so remained till his death, for the purpose of procuring funds for the use and maintenance of a testator, may not sell the subject of a specific bequest when there are sufficient free assets of the
The assets of the estate remaining for distribution, to the extent necessary to make good to the appellant the proceeds of the preferred stock sold by the committee, with interest, should be awarded to the appellant.
The decree, so far as appealed from, should be reversed, with costs to the appellant payable out of the estate, and the case remitted to the surrogate for further proceedings in accordance with this opinion.
All concur, except Davis, J., who dissents and votes for affirmance, with an opinion.
Dissenting Opinion
It is likely that in general a just result is reached in the decision to carry out the intent of the testator and give to the legatee an equivalent for the specific legacy which was not found in the assets of the estate. But the fixed rule of law in this State seems to prevent such a determination. “ It is a rule which prevails without regard to the intention of the testator or the hardship of the case. * * * The law is too firmly settled to admit of relaxation, however peculiar or pressing the circumstances. The thing given is gone, and no court is at liberty to substitute a different thing for that which the testator had himself given.” (Beck v. McGillis, 9 Barb. 35, 59.)
There are jurisdictions where in certain instances the ademption of a legacy is made to depend upon the question of intention. In this State the rule is to the contrary. Unlike revocation or satisfaction, ademption is not a question of intention, but is entirely a rule of law. The doctrine is that the one to whom a specific legacy is given can ordinarily take nothing thereby unless the legacy remains in specie at the death of the testator; and if in the latter’s lifetime it has been destroyed, consumed, sold, exchanged or in any manner disposed of so that nothing remains in the estate to which the dispositive words of the will can be deemed applicable, it is lost. (Abernethy v. Catlin, 2 Dem. 341, 343.)
This rule was early established (Walton v. Walton, 7 Johns. Ch. 258) and has been consistently followed. (Beck v. McGillis, supra; Ametrano v. Downs, 170 N. Y. 388; Matter of Brann, 219 id. 263, 268.)
The question presented here is unusual, and the facts vary from those in the cases heretofore cited. There are authorities holding that ademption occurs under the circumstances here under consideration. Where the conservator of the property of an incompetent person has utilized, for the benefit of his ward, the specific property bequeathed, an ademption has followed as a rule of law. (Matter of Freer, L. R. 22 Ch. Div. 622; Hoke v. Herman, 21 Penn. St. 301.) There are authorities to the contrary in other jurisdictions, as has been pointed out in the prevailing opinion. (See, also, Estate of Cooper, 95 N. J. Eq. 210.)
We are then confronted with the problem as to whether the strong rule long prevailing in this State shall be modified and an exception made in a case where there could be no possible intention on the part of the testator to make a change, but the particular assets were sold by the committee for the entirely legal purpose of providing support and maintenance for an incompetent person. The restriction on the sale of property by the committee except by consent of the court relates only to real property. (Civ. Prac. Act, § 1377; Matter of City of New York [Covert Ave.— Schmidt], 136 App. Div. 887; Maclay v. Equitable Life Assur. Society, 152 U. S. 499, 503; 14 R. C. L. 574; 12 id. 1124.) The committee was as capable of forming an intent as to what personal property should be sold for the support of the incompetent as the testator would have been had he remained of sound mind and found it necessary to sell property to maintain himself. It is always contemplated that an incompetent person may be restored to reason and his property may be returned to him (Civ. Prac. Act, § 1382); and that he might again become competent to change, his will. In the meantime the acts of the committee in good faith are the acts of the incompetent.
But I think this discussion is beside the question, if we follow the rule that we will look only to “ the fact of change.” Having ascertained that there has been change and disappearance of the specific property bequeathed, it is unnecessary to consider “ the reason for the change.” (Matter of Brann, supra, 268.) It seems to me that it matters not whether the property was disposed of in one way or another — whether by legal means or otherwise. The test is whether the property specifically bequeathed is found in the assets of the estate. If it becomes destroyed by use, fire
Evidently the will was drawn by a lawyer. Acting under legal advice, the testator could have made certain that the object of his bounty would receive a legacy by making it general instead of specific. Having failed to do that, he took the risk of ademption. My view of the doctrine in this State is, that the courts are not authorized to substitute something else in lieu of the legacy-— no matter what fine distinctions may be made and what subtle reasoning employed to bring about a seemingly just result.
I favor affirmance.
Decree, so far as appealed from, reversed on the law, with costs to the appellant payable out of the estate, and matter remitted to Surrogate’s Court for further proceedings in accordance with the opinion.