Estate of Mason

62 Cal.2d 213 (1965) 397 P.2d 1005 42 Cal. Rptr. 13 Estate of MARY MASON, Deceased.

SECURITY FIRST NATIONAL BANK, as Executor, etc., Petitioner and Respondent,

v.

ROBERT T. FAIRBANK, Objector and Appellant;

KATHERINE McKENNA, Beneficiary and Respondent.

Docket No. L.A. 27733. Supreme Court of California. In Bank.

January 15, 1965. [214] Ardy V. Barton for Objector and Appellant.

Griffith & Thornburgh, Charles B. Voorhis, II and Yale B. Griffith for Petitioner and Respondent and Beneficiary and Respondent.

TRAYNOR, C.J.

Robert T. Fairbank appeals from a decree of final distribution of the estate of Mary Mason. The testatrix devised her home and most of its contents to Robert's mother if she outlived the testatrix and if not, then to Robert. Robert's mother predeceased the testatrix.

[215] Several years after executing her will, the testatrix became mentally incompetent, and the Security First National Bank was appointed guardian of her estate. With the approval of the court the guardian sold the testatrix' home and kept the proceeds of the sale, approximately $21,000, in a separate account. It spent all but $556.66 of this account to support the testatrix, who died without regaining competency.

The trial court decreed that there was a partial ademption of Robert's gift to the extent the proceeds from the sale of the testatrix' home were spent during the guardianship and therefore ordered that only the unexpended proceeds, $556.66, be distributed to him. It ordered distribution of the remainder of the estate, $6,808.08, to the residuary legatees, who are respondent Katherine McKenna, a friend of the testatrix, and eight nieces and nephews.