113 A. 214 | N.H. | 1921
"A legacy is specific . . . when it is a bequest of a specific article of the testator's personal estate, distinguished from all others of the same kind; as, for instance, of a particular horse, or piece of plate, money in a purse or chest, a particular stock in the public funds, or a bond or other security for money." Loring v. Woodward,
"Legacies which are specific are said to be adeemed, when the particular thing given is either wholly lost, destroyed, or disposed of, by the testator during his life; or its form so changed as not to remain in specie. Thus if the thing given as a specific legacy be sold by the testator, or otherwise disposed of during his lifetime, or its form be changed . . . it is lost or destroyed. So that if the subject matter of the legacy either ceases to be the property of the testator, or is so changed during his life as no longer to be susceptible of identification, the legacy is said to be adeemed or gone." 2 Red. Wills, p. 528; Gardner v. Gardner,
In Ford v. Ford, supra, conflict in the authorities is suggested as to whether the presumption in favor of ademption might be rebutted by evidence of a contrary intention, but the opinion approves the English rule that the only question is whether the specific thing remains or not at the death of the testator, and that the presumption of ademption is not to be rebutted by evidence of a contrary intention. The case, however, holds that, though certain changes were made by the testator in the form of the securities bequeathed, the change was not sufficient to require a holding that the legacy was adeemed. In short, the evidence did not satisfy the court the testator intended to revoke the gift made by the will. Chase v. Moore,
In this case the testatrix voluntarily put her property into the hands of a conservator to care for and use for her support. There is no suggestion that what the conservator did in the use of the money on deposit was not reasonable and done in good faith. As to the portion of the fund consumed, the legacy is adeemed both because what was done being reasonable was authorized by the testatrix and because nothing has come to the executor's hands upon which the will can operate. The investment in the liberty bond was not made to advantage the estate, was not known to, or authorized by the testatrix. The change therefore furnishes no evidence of an intentional revocation by her. As so much of the fund as was invested in the bond is identified as a part of the bequests to the legatees of the bank deposits, *27 the executor is advised that the persons now entitled as legatees to such deposits are entitled to the liberty bond now in his hands in proportion to the investment from each fund. As the same amount was drawn from each bank for the purchase of the bond, the persons who would have received each deposit except for the change are equal owners of the bond.
Case discharged.
All concurred.