Security First National Bank v. Fairbank

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.

Robert contends that, in the absence of proof that the testatrix intended an ademption, he is entitled to have the specific gift to him satisfied, so far as estate assets permit, before distribution of any residue.

“ ‘Ademption of a specific legacy is the extinction or withdrawal of a legacy in consequence of some act of the testator equivalent to its revocation, or clearly indicative of an intention to revoke. The ademption is effected by the extinction of the thing or fund bequeathed, or by a disposition of it subsequent to the will which prevents its passing by the will, from which an intention that the legacy should fail is presumed. ’ ” (Estate of Goodfellow, 166 Cal. 409, 415 [137 P. 12], quoting from Kramer v. Kramer (5th Cir. 1912) 201 F. 248, 253 [119 C.C.A. 482].) A change in the form of property subject to a specific testamentary gift will not effect an ademption in the absence of proof that the testator intended that the gift fail. (Estate of Stevens, 27 Cal.2d 108, 115-116 [162 P.2d 918]; Estate of Moore, 135 Cal.App.2d 122, 130-134 [286 P.2d 939]; Estate of MacDonald, 133 Cal.App.2d 43, 45, 48 [283 P.2d 271]; Estate of McLaughlin, 97 Cal.App. 485, 489 [275 P. 875] ; see Estate of Calori, 209 Cal.App.2d 711, 712 [26 Cal.Rptr. 281]; Estate of Cline, 67 Cal.App.2d 800, 805-806 [155 P.2d 390]; 43 Cal.L.Rev. 151.) Accordingly, when the guardian of a mentally incompetent testator has sold property subject to a specific gift in his ward’s will, the beneficiary is awarded the proceeds of the sale. (See Wilmerton v. Wilmerton (7th Cir. 1910) 176 F. 896 [100 C.C.A. 366, 28 L.R.A. N.S. 401]; Lewis v. Hill, 387 Ill. 542 [56 N.E.2d 619]; In re Estate of Bierstedt, 254 Iowa 772