The basic question to be resolved is whether the legacies set forth in paragraph five of the will were adeemed. Whether these legacies were adeemed is determined fundamentally by the nature of the legacy. If the legacies were demonstrative, the sale of the real property and investment and reinvestment of the proceeds would not constitute an ademption, and, consequently, paragraph five of the will would stand. On the other hand, if the legacies in paragraph five are specific, the sale or transfer of the property subject to the specific, legacies would constitute an ademption thereof, and the proceeds of the sale of the realty involved herein would be distributable under the provision of the intestate succession laws of this jurisdiction.
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 least a different intention in that regard which is not expressed will not be implied, although the intention which is expressed relates to something which has ceased to exist.'
Testatorial intention is determinative of the type of legacy designated. As the Court of Appeals held in Plant v. Donaldson, 39 App.D.C. 162, 165: 'Whether a legacy is to be treated as demonstrative, or one dependent exclusively upon a particular estate or fund for payment, is a question to be determined according to what may have been the general intention of the testator expressed in the will; and that a legacy will not be construed to be specific unless the intention to make it such clearly appears.'
The Court of Appeals for the District of Columbia laid down in an early decision the differences between a specific and a demonstrative legacy: 'A specific legacy is the bequest of a particular thing, or a specified part of a testator's property, distinguished from all others of the same kind. * * * If the language of the will indicates, not the gift of a specified article, or part of the estate, to the extent or value stated, but its designation only, as a certain interest or fund from which the bequest of money, or amount of value, shall be primarily paid or satisfied, it becomes a demonstrative legacy.' Douglass v. Douglass, 1898, 13 App.D.C. 21, 26, 27.
The fifth paragraph of the will directed that 'the aforesaid real property be sold and the proceeds realized therefrom' be distributed as thereafter directed. Obviously the intent of the testatrix at the time the will was written was to retain this real property. Shortly thereafter, however, her husband died. That the testatrix' first concern was for the welfare of her husband in the event she predeceased him is established by the second paragraph of the will. In the year following her husband's death, the testatrix sold the real property which was to provide for her husband's care 'during the remainder of his life' and invested the proceeds of this sale in various securities. Later she disposed of three government bonds purchased with a portion of the proceeds of the sale of the real property and utilized the proceeds for her own purposes. On another occasion she paid from the proceeds of the sale of the real property $ 369.89 to the Treasurer of the United States on account of her Civil Service Retirement and Disability Fund.
The Court holds that the legacies contained in paragraph five of the will were specific and that they were, therefore, adeemed and that, consequently, the proceeds of the sale of the real property which are in the hands of the Executor must be distributed according to the intestate laws of this jurisdiction.
The Court cannot make a will, nor can it revise the language of the testatrix. Nor may it impute a meaning which is contrary to the expressed intention of the testatrix. In the language of Plant v. Donaldson, supra, 39 App.D.C. at page 166: 'We can find nothing in that language from which we can infer an intention that the legatees shall be paid certain sums at all events, with the designation merely of the proceeds of the land as a special fund primarily charged with such payments. The plainly expressed intention is that the real estate, devised in trust, to the executor for the particular purpose, shall be sold by him, and the proceeds of such sale divided by him in the manner provided.'
To hold that there was created in paragraph five of the will of the testatrix some kind of legacy other than a specific legacy would be, in the Court's opinion, to disregard her intentions as manifested by the provisions of the will and the testatrix' own conduct and actions in dealing with the property involved.
Plant v. Donaldson, supra, clearly holds that if the legacy is specific, the subsequent sale by the testatrix during her lifetime of the real property from the proceeds of which the legacy was made payable constitutes an ademption. That case is also authority for the proposition that the legacies set forth in paragraph five of the will were to be specific legacies.
While it is also true that there is a presumption against intestacy, such does not empower the Court to direct the disposition of the property of the testatrix according to what the Court thinks the testatrix should have done, or would have done, had she been fully aware of the legal consequences of certain actions and events which took place. Conjecture may not be substituted for expressed intention. Kaiser v. Brandenburg, 1900, 16 App.D.C. 310, 317.
The Court finds basic factual differences which distinguish this case from Kenaday v. Sinnott, 1900, 179 U.S. 606, 21 S. Ct. 233, 45 L. Ed. 339.
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