In re the Judicial Settlement of the Account of the National Bank & Trust Co.

Van Kirk, P. J. The bequest of the preferred stock to Lena M. Whitmore was a specific legacy. (Crawford v. McCarthy, 159 N. Y. 514, 519.) This stock having been disposed of by the committee of the incompetent testator, Lena M. Whitmore claims the proceeds or the equivalent of the proceeds of that stock. The executor claims that such sale caused an ademption of the legacy and that appellant is entitled to no part of the proceeds thereof. The general rule in this State is that a specific legacy is adeemed when the property, the subject of the specific bequest, is not in the estate at the time of death. Ademption is not dependent upon the testator’s intent of adeeming. “What courts look to now is the fact of change. That ascertained, they do not trouble themselves about the reason for the change.” (Matter of Brann, 219 N. Y. 263, 268.) This rule has been applied where the alienation is by operation of law. (Ametrano v. Downs, 170 N. Y. 388, 391.) That case involved the sale of real estate which had been specifically devised in condemnation proceedings during the life of the testatrix. The court said: “ The only point to be considered, therefore, is whether a different rule obtains in the case of involuntary alienation, by operation of law, from that which prevails on a voluntary sale; ” and held that a transfer by operation of law during the life of the testatrix caused ademption as does a voluntary transfer. The English rule is the same. Our question is whether the committee of a testator, who has become incompetent after making his will, can, by a sale of the subject of a specific bequest, nullify that bequest and defeat the declared intention of the testator when there are other assets of the estate not specifically bequeathed sufficient to satisfy his needs. It does not appear in this record that the committee was authorized by the court to sell this stock, but it does appear that he made his accounting and his account was approved. However, neither the court, nor the committee, was aware of the specific bequest, nor was this appellant or the executor a party to that accounting. Nothing indicates that, had the committee known of the specific bequest, he Would have sold the preferred stock rather than the common stock. When the committee was appointed the testator’s property passed into the hands of the court to be administered by the com [291] mittee as its agent. The committee had no title to the property. This property could be used for the incompetent’s maintenance and needs, but what remained must be delivered to the executor. (32 C. J. 692, 693; Civ. Prac. Act, § 1377; Kent v. West, 33 App. Div. 112; appeal dismissed, 163 N. Y. 589.) Except for the needs of maintenance and payment of debts of the testator the disposition of the property, whether in the hands of the committee or of the executor, is controlled by the will as it stood at the time incompetency matured. The title to the specific legacy vested at the time of the death directly in the legatee and not in the executor. (Matter of Columbia Trust Co., 186 App. Div. 377, 380; Matter of Utica Trust & D. Co., 148 id. 525.) Also in this respect the will speaks as of the time of its execution. (Matter of Delaney, 133 App. Div. 409; affd., 196 N. Y. 530; Matter of Campbell, 170 id. 84, 87.) The general rule of construction is that the intention of the testator must be carried out where that intention is clearly expressed. When this testator became incompetent he had lost the power to form or express a changed intention. This preferred stock was then a part of his estate. By no act of his and by no operation of law to his knowledge was this preferred stock taken from his estate. When he was declared incompetent, for all purposes connected with his will he was a deceased person. Incompetency is as final as death in fixing intent. The intent disclosed in his will should prevail. A rule not necessarily applicable should not avail to defeat a valid will or revoke a bequest. To hold that this legacy was adeemed is to hold that the preferred stock may be used in disregard of the testamentary disposition by the testator and without the necessity of thereby providing for his use and maintenance. Under the rule that, in the order of payment, specific legacies are to be preferred to general legacies (Matter of Matthews, 122 App. Div. 605), the committee or the court which had appointed him should have used the other assets of the estate before selling this preferred stock. Had the bills contracted during incompetency remained unpaid until death (no committee having been appointed) they would have been paid by the executor from the property not specifically bequeathed, so far as such existed. We do not find any decision in the Court of Appeals, or an Appellate Division, of this State on this question. Contrary to the rule in this State, in the Federal courts the test of intention of adeeming is applied, but still we find support for the above views in Wilmerton v. Wilmerton (176 Fed. 896; writ of certiorari denied, 217 U. S. 606). While the intention test is recognized, the court said (p. 900): “ The question in our judgment is not whether, as a mere matter of accident, or of purpose outside of the testator’s purpose, the [292] thing set apart as the corpus of a special bequest has been changed in specie. The real question is whether, all things considered, the testator’s testamentary disposition did, or did not remain, with reference to the particular thing embodied in the specific bequest or its proceeds, the same as it was the last moment he was able to exercise a testamentary disposition. In that way, and in that way only, we think, can the right of the man to dispose of his property according to his own wishes, exempt from the interference, caprice or interest of others, be fully carried out. In that way only can his intention, as embodied in his will, be truly administered.” In 30 American Law Reports, Annotated, page 676, is an annotation setting forth the rules, in various jurisdictions, on the question here presented, On page 680 the Scottish case of Macfarlane v. Macfarlane (1910 S. C. 325) is digested. As in the instant case, the testator became incompetent after making his will. It is held that the rule under Scottish law agrees with that of England; it does not recognize, as a test, the intention of the testator of adeeming a legacy. The curator bonis was not a*ware of the terms of the will. The court said that no act of a curator bonis can avail to affect the order of his ward’s succession, or its character in the distribution of it between heir and executor, unless it can be shown not only that it was a proper and necessary act of administration on the part of the curator, but that it would have been a necessary and unavoidable act on the part of the ward if sui juris. And concludes: “ Though the testator’s estate at his death did not in fact include the shares in question, they must, in my judgment, be held to have formed part of it at that date [of incompetently] and that without in any degree impinging upon the well-established general rule of law, already alluded to, that a testator’s intention is not to be looked to in a question of ademption.” With like reasoning we think that this holding does not conflict *with the holding in Matter of Brann (supra). In that case the will and codicil were construed and given effect. The court remarks that the testatrix had an opportunity to change the will when the codicil was signed, but did not. “ Our duty is to give effect to it according to its terms.” To cut down the terms of the will because of suspicion that the testatrix may have failed to appreciate its scope “ is to break down the safeguards which the law throws around a will.” We hold that the specific legacy has not been adeemed. The committee of a testator, who has become incompetent and so remained till his death, for the purpose of procuring funds for the use and maintenance of a testator, may not sell the subject of a specific bequest when there are sufficient free assets of the [293] estate, not specifically given, to satisfy the needs of the testator; a specific bequest may not be so adeemed. The committee had not the power to change or disregard the will of the incompetent. A disposition of an incompetent person’s property by a valid will is no more to be disregarded by his committee than by his executor. A testator’s right to dispose of his property according to his own wishes, exempt from the interests of others, should be upheld. The assets of the estate remaining for distribution, to the extent necessary to make good to the appellant the proceeds of the preferred stock sold by the committee, with interest, should be awarded to the appellant. The decree, so far as appealed from, should be reversed, with costs to the appellant payable out of the estate, and the case remitted to the surrogate for further proceedings in accordance with this opinion. All concur, except Davis, J., who dissents and votes for affirmance, with an opinion.