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IN RE MCCRAY'S ESTATE

February 28, 1951

In re McCRAY'S ESTATE


The opinion of the court was delivered by: TAMM

This case is before the Court on a motion by the Executor for summary judgment.

The issue in the case is whether legacies to be paid from the proceeds of the sale of certain realty were adeemed, and this turns on the further question- were the legacies specific or demonstrative?

 The decedent, Clara McCray, died on May 25, 1949, leaving a will which had been executed on May 25, 1944. This will was duly admitted to probate. The second, third and fourth paragraphs of the will provided as follows:

 'Second: In the event that I predecease my beloved husband, Wilson F. McCray, Sr., and he should continue disabled, it is my sincere desire, and I therefore request, that my beloved sister, Mrs. Annie Humphries Warren, who is now residing at 1712 Irving St., N.W., Washington, D.C., make arrangements for his care during the remainder of his life, using for that purpose moneys which may be derived from the renting or leasing of my real property known as 6610 Braeburn Parkway, Town of Bethesda, Montgomery County, Maryland, and described as follows:

 "Lot numbered twenty-one (21) in Block numbered Five (5) in a resubdivision of Lots numbered Four (4) and Five (5) in Block numbered Five (5) in the subdivision known as 'Bannockburn Heights', as per plat of said resubdivision recorded in Plat Book 19, Folio 1171, one of the Land Records of said Montgomery County, Maryland.'

 'Third: In the event that I predecease my said sister, I give and devise the real property described in Paragraph Second of this will unto my said sister, Mrs. Anne Humphries Warren, subject, however, to a life estate in my said husband if he survive me.

 'Fourth: In the event that my said husband shall predecease me, then I give and devise the aforesaid real property described in Paragraph Second of this will until my said sister, Mrs. Annie Humphries Warren, absolutely.'

 Paragraph five of the will provided that: 'In the event that both my said husband and my sister predecease me then I direct that the aforesaid real property be sold and the proceeds realized therefrom be distributed as follows: * * * '

 The will then named eight legatees, six of whom were to receive a one-seventh interest, and the other two were each to receive one-fourteenth. (by the 'aforesaid real property', the testatrix had reference to the piece of real property described in paragraph two of her will). The sister of the testatrix was to have been residuary legatee. The husband of the testatrix died on July 2, 1944, less than two months after the making of the will, and her sister died on September 30, 1946. Both died without issue.

 In 1945, that is, after the death of the testatrix' husband but before the death of the sister, the testatrix sold this Bethesda real property and invested the proceeds in various securities. She later sold and purchased other securities with the proceeds received from the sale of the real property. She also used part of the proceeds for her own purposes.

 The testatrix received $ 8,988.83 from the sale of the real property in Bethesda. This money was used from time to time for the purchase of various securities, and these were in turn sold, and the proceeds reinvested. From the time of the sale until her death, the testatrix spent $ 854.44 of these funds for her own purposes. The present estate consists of some $ 6000 in securities, the proceeds of a $ 2500 insurance policy, and a quantity of personal property and effects.

 There is a conflict among the various jurisdictions on the question of whether a gift of the proceeds of property is adeemed by receipt by the testator of the proceeds and consequent dealings and transactions with such proceeds. 165 A.L.R. 1032, et ff. Some courts which hold this type of legacy to be specific still hold that the legacy is not adeemed by subsequent transactions and dealings by the testator. 165 A.L.R. 1034.

 The Supreme Court in Kenaday v. Sinnott, 179 U.S. 606, 21 S. Ct. 233, 237, 45 L. Ed. 339, has briefly outlined the doctrine of ademption thus: '* * * Without going into refinements in respect of the definition of the word 'ademption,' it may be said to be 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 satisfaction of a general legacy depends on the intention of the testator as inferred from his acts, but the ademption of a specific legacy is effected by the extinction of the think or fund bequeathed, and the intention that the legacy should fail is presumed. At ...


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