Williamson v. Merritt

Lyle Brown, Justice. The sole issue is whether the withdrawal by the testatrix from a savings account willed to appellees showed an intention to revoke the legacy as to the funds withdrawn. The trial court, upon stipulated facts, held there was no such ademption. The appellant is Imogene Williamson, executrix of the estate of Mary Ann Merritt. The appellees are James Clyde Merritt II and Michael Wheatley Merritt, who were designated in the will to receive the proceeds in the savings account. On January 26, 1965, Ms. Merritt, the testatrix, deposited in the First Federal Savings and Loan Association of Stuttgart, Arkansas, $6,170.05. The account was in the names of “Miss Mary Merritt and James Clyde Merritt and Mike Wheatly Merritt”. There was this written entry. “No withdrawals made without the signature of Miss Merritt. Payable upon her death to James and Mike equally.” The initial deposit was the only one made. By the time of her death Ms. Merritt had, by withdrawals, reduced the savings account to $2,376.68. Ms. Merritt executed a will on February 12, 1972. Among other things it provided: “I give, devise and bequeath to James Clyde Merritt II and Michael Wheatly Merritt my savings account in First Federal Savings and Loan Ass’n of Stuttgart, Ark. ” The will further directed that the residuary estate be divided equally among nine grandnieces and grandnephews including James and Michael. On May 1, 1972, by letter, the testatrix gave this directive to First Federal: “Make a transfer in the amount of $3,-000 to the account of Miss Mary Merritt, First National Bank, DeWitt, Arkansas” for “the purpose of taking care of medical expenses for myself”. At that time Ms. Merritt had a checking account at First National and the $3,000 was commingled with $518.78 already in that account. Before her death on May 21, 1972, Ms. Merritt wrote two checks on the account, those checks totaling $69.86. In the situation before us, we look to the intent of the testatrix. Generaily, the courts look with disfavor upon the ademption of a specific legacy; however, “In construing a will to determine whether there has been an ademption of a specific legacy, the intention of the testator is the controlling factor, the same as in the construction of all wills. Once the intention of the testator has been determined, all other rules of law pertaining to ademption must bend to such intent, so long as his intent does not violate some positive rule of law.” In Re Estate of Brown, 252 N.E. 2d 142 (Ind. 1969). In Brown, the testator willed to his sister-in-law all his rights and title which testator had received from the estate of his deceased brother. Before his death the testator purchased bank certificates with the money obtained from his brother’s estate. The certificates were held intact until testator’s death. The court held there was no ademption. Looking at the will itself and all other relevant facts and circumstances occurring between the execution of the will and the death of the testatrix, we have concluded there was an ademption. The wording of the will is of no substantial significance on the point in question. However, it should be noted that the will did not “freeze” the savings account at any specific sum. For example, that was the situation in the case cited by appellee—Prendergast v. Walsh, 42 Atl. 1049 (N. J. 1899). In Prendergast, the testatrix bequeathed “whatever of my money now on deposit” (our emphasis) in four named banks to “my beloved sisters”. The money was subsequently withdrawn from the four banks and deposited in another bank. There were no withdrawals. Oral testimony was admitted to show that testatrix moved the money because she thought it would be safer. In that situation the court held there was no ademption. Upon the opening of the savings account Ms. Merritt made it clear that as long as she lived she held the exclusive right to control withdrawals. As previously stated she had the entry made that no withdrawals would be made without her signature. She did in fact make several withdrawals to the exclusion of all other people. In fact she treated the account as being little more than a checking account. Up until the withdrawal of the $3,000 she had made numerous withdrawals, all of which amounted to $2,599.04. When Ms. Merritt withdrew the S3,000 from savings she left a tidy balance on savings. By placing the S3,000 in an existing checking account and commingling it with other funds the indication is strong that she no longer wanted the S3,000 to remain a part of her special bequest to James and Michael. In fact she dedicated the funds to her personal needs. The fact that she did not live long enough to expend the funds is not important. It is also of some significance that the bequest of the savings account was in general terms — “my savings account — rather than naming a specific amount. Appellee cites Willis v. Barrow, 119 So. 678 (Ala. 1929). But the facts are different from our case. In Willis, money on deposit in a named bank was bequeathed. The money thereafter was transferred to another bank; however, it was placed in a separate savings account rather than commingled with another savings deposit in the same bank. “Significant is the fact that the identical fund was put in a separate savings deposit rather than being commingled with a like savings deposit then in the same bank.” Appellee also cites In Re Estate of Hall, 160 Atl. 2d 49 (N.J. 1960). Hall, the testator, had money in four banks in Rochester, New York, which he bequeathed to designated relatives. After the execution of the will Hall moved to Maplewood, New Jersey, and he transferred the funds in the four banks to a bank, and a savings and loan association in Maplewood. It was agreed that the funds in the latter account could be directly traced as coming from the banks in Rochester. There was no evidence of commingling of the transferred funds with other funds. The court held it to be obvious that the transfer was purely one of convenience. The court interpreted the will to mean that the testator desired that a grandnephew, Harknett, receive only a nominal sum from his estate. If it held (the court continued) there was an ademption Harknett would receive a substantial sum of money contrary to the wishes of the testator. So we do not think the facts in Hall help in the solution of the problem before us. Of course appellees, are entitled to the balance in First Federal; however, the S3,000 withdrawn from First Federal was adeemed and therefore becomes a part of the residual estate. Reversed and remanded. Harris, C.J., and Holt, J., dissent.