Black's Estate , 223 Pa. 382 ( 1909 )

Opinion by

Mr. Justice Elicin,

The testator held two bonds in the National Life Insurance Company, maturing in twenty years, which were in the nature of insurance contracts. He bequeathed one-half of the proceeds of these bonds to David R. Kennedy and the remaining half to Mrs. H. C. Lewis. ■ These legatees in the distribution of the estate in the court below claimed what the will in express terms gave them, that is, the proceeds of these bonds. Their right to participate in the distribution is denied by the residuary legatee on the ground that these legacies were adeemed. The solution to the controversy depends upon the facts rather than upon the law. ■ Of course, if the testator had bequeathed a particular bond to a certain person, and in his lifetime had disposed of that bond so that it did not remain his property at the time of his death, that would be an end of the legacy, because the particular thing bequeathed was not the property of the testator when the will became operative. Under such circumstances there would be an ademption. But that is not this case. The testator bequeathed, not the bonds, but the proceeds, and the learned court below has found as a fact upon sufficient testimony that the proceeds of these bonds, identified and earmarked, are intact, ready for distribution to the parties entitled thereto. This finding of fact relieves the whole situation from difficulty. The very thing bequeathed by the testator, that is, the proceeds of two certain bonds, being in existence and belonging to him at the time of his decease, there is no rule of law which would deny the legatees the right to demand and receive what the will in terms gave them. The learned judge who delivered the opinion of the court in banc very properly and pertinently said: “Ademption of a specific legacy arises by the alienation or destruction of the object. It is now clear that the thing devised has neither.been alienated or destroyed; the proceeds being traced out and identified at the time of testator’s death, the legacy will take effect: Nooe v. Vannoy, 6 Jones Eq. 185. The proceeds of tliese bonds being the thing devised were in fact kept apart from the testator’s estate by the mortgage investment, therefore the argument in favor of extinction and ademption falls: Clark v. Browne, 2 Sm. & Gif. 524.”

Decree affirmed at the cost of the appellant.