IN RE: the ESTATE of Mary MASON (1964)

This is an appeal by Robert Fairbank [hereinafter referred to as ‘Devisee’] from a ‘Decree Settling First And Final Account And Report And Of Final Distribution’ declaring that a specific devise of real property had been partially adeemed.¹

There is no dispute as to the operative facts. The single issue presented on this appeal may be stated as follows:

Where testatrix executes a will making a specific devise of real property; and where subsequent to the execution of the will the testatrix becomes incompetent and a conservator is appointed; and where the conservator pursuant to court order, sells the real property which is the subject of the specific devise and uses a portion of the proceeds2 from said sale to support and maintain the incompetent, is the specific devise adeemed pro tanto to the extent that the proceeds are used to support and maintain the incompetent? Yes.

The question presented is one of first impression in this state. The weight of authority in the United States is that where the testatrix is incompetent and under conservatorship, a sale of the specific property by the conservator does not work an ademption so far as the proceeds are traceable.³ (See Wilmerton v. Wilmerton, 7 Cir., 176 F. 896 [Cert. den. 217 U.S. 606, 30 S.Ct. 696, 54 L.Ed. 900]; In Re Bierstedt's Estate, 254 Iowa 772, 119 N.W.2d 234; Walsh v. Gillespie, 338 Mass. 278, 154 N.E.2d 906; Bishop v. Fullmer, 112 Ohio App. 140, 175 N.E.2d 209; Lewis v. Hill, 387 Ill. 542, 56 N.E.2d 619; Duncan v. Bigelow, 96 N.H. 216, 72 A.2d 497; Annotation 51 A.L.R.2d 770; Warren, ‘The History of Ademption’ 25 Iowa Law Review 290, 324, 325; 4 Page on Wills (Lifetime Ed. 1941), § 1530, pp. 387–388.) However, it is rather generally held or conceded that there is an ademption pro tanto to the extent that the proceeds of the item have been rightfully expended to pay for the support and maintenance of the incompetent testatrix. The specific legatee or devisee loses the gift to that extent and can take only the unexpended remainder of the fund derived from the specifically given item. (See In Re Bierstedt's Estate, supra, 254 Iowa 772, 119 N.W.2d 234, 235; Walsh v. Gillespie, supra, 338 Mass. 278, 154 N.E.2d 906, 908; Lewis v. Hill, supra, 387 Ill. 542, 56 N.E.2d 619; 51 A.L.R.2d 770, 797.)

We hold in accordance with the trial court's determination that the devise to appellant devisee is only adeemed to the extent that the proceeds of the sale were used for the care of the testatrix and expenses of conservatorship, and that the balance of the proceeds of the sale should be distributed to appellant.

The order is affirmed.

FOOTNOTES

1.  The Decree provides in pertinent part as follows: ‘* * *‘And it appearing that in and by paragraph Second of decedent's will she left her home and furnishings to her friend, Claire Ranney, and if she should not be living, then to Robert T. Fairbank, and that the said Claire Ranney predeceased the decedent and Robert T. Fairbank is therefore the beneficiary under that provision of decedent's will; ‘That as reported to this court in said Petition and also on a number of occasions during the guardianship proceedings for said decedent, the said residence was sold by Security First National Bank, as guardian of the estate of said Mary Mason, and the proceeds of such sale were kept separate, pursuant to Court order, and the greater part of such proceeds were necessarily and properly consumed with approval of this Court in the guardianship for the purpose of paying the expenses of supporting and maintaining said incompetent decedent during her lifetime; that at the time of death of said Mary Mason there remained only $556.66 in said separate account, which amount represented the total remaining proceeds of sale of real estate; ‘IT IS NOW ORDERED, ADJUDGED AND DECREED that there has been a partial ademption of such devise of real estate to the extent that such proceeds were consumed during the lifetime of decedent and that there has been no ademption as to the $556.66 of proceeds which remain traceable. * * * ‘It is therefore ORDERED that said Executor pay and distribute the said sum of $556.66 to said Robert T. Fairbank; ‘* * *.’

2.  The trial court decreed that devisee was entitled to that portion of the proceeds from the sale which was not consumed in the support and maintenance of testatrix. The question on appeal relates solely to those proceeds which were consumed.

3.  In England and in a few jurisdictions in this country the courts have applied the ‘identity’ rule and have held that where the subject of a specific legacy has been sold by a conservator or guardian the legacy was adeemed, notwithstanding the fact that the proceeds of the sale were traceable. (Jones v. Green, 5 L.R.Eq. 555; In re Freer, 22 Ch.D. 622; Matter of Ireland's Estate, 257 N.Y. 155, 177 N.E. 405; Hoke v. Herman (Pa.) 21 Pa. 301; 51 A.L.R.2d 770.)

FOURT, Justice.

WOOD, P. J., and LILLIE, J., concur.