Tennant v. Dennis

TAYLOR, J. Amy B. Tennant, the niece of the predeceased husband of the testatrix, appeals from a decree denying her interest in the proceeds of the sale of certain real property of the estate of Elisabeth B. Packham. The only question on appeal is whether the trial court properly concluded that appellant’s specific devise was adeemed through the sale of the real property by the guardian of the incompetent testatrix.

The facts are not in dispute. The relevant portion of the will executed in 1948 devised to appellant “Any interest in the residential real property known as 57 Amador Avenue, Atherton, California, which I may own at the time of my death, or a sum equal to the net proceeds of sale of any said interest occurring during the administration of my estate. ...” The other significant portions of the will impose on the residuuary estate a charge of $8,000 in favor of respondents and cancel an indebtedness of respondent, Gordon W. Dennis.

In 1950, when the testatrix was declared incompetent and the Bank of America appointed as her guardian, her estate was valued in excess of $100,000. The testatrix remained incompetent until her death on December 14, 1962. On May 15, 1962, the guardian sold the Atherton property devised to appellant. The sale was duly- confirmed by court order. The net proceeds from the sale were $27,000 and about $25,000 remains in the possession of the executors of the estate.

It is not necessary to discuss the various authorities cited by the parties, as the issue here presented was recently resolved by the Supreme Court in the Estate of Mason, 62 Cal.2d 213 [42 Cal.Rptr. 13, 397 P.2d 1005]. The court there held that in the absence of proof that the testatrix intended an ademption, the sale by the guardian does not adeem a specific bequest. The court said at page 216: " The reasons for refusing to find an ademption upon the guardian’s sale are: (1) The incompetent testator lacks intent to adeem (see [849]Wilmerton v. Wilmerton, supra, 176 F. at pp. 899-900 [100 C.C.A. 366, 28 L.R.A. N.S. 401]) and the opportunity to avoid the effect of an ademption by making a new will. (See Walsh v. Gillespie, supra, 338 Mass, at p. 283 [154 N.E.2d 906] ; 74 Harv.L.Rev. 741, 745.) (2) A contrary rule would allow the guardian, by changing the form of guardianship property, to determine the distribution of the estate. (See In re Cooper, supra, 95 N.J.Eq. at p. 213 [123 A. 45, 30 A.L.R. 673] ; In re Estate of Bierstedt, supra, 254 Iowa at p. 778 [119 N.W.2d 234]; 6 Page, Wills, supra, at pp. 273-274.)