## Facts

- Mary Mason executed a will devising her home to Robert Fairbank and leaving the remainder of her estate to residuary legatees, including Katherine McKenna.
- After executing the will, Mason became mentally incompetent and never regained capacity.
- A court-appointed guardian sold the specifically devised residence for about $21,000.
- The guardian spent most of the sale proceeds for Mason’s care and support; $556.66 of the proceeds remained identifiable at Mason’s death.
- Aside from the traceable $556.66, the remaining estate was about $6,808.08 and would otherwise pass under the residuary clause.
- The probate court treated the guardian’s sale and expenditures as a partial ademption and awarded Fairbank only the $556.66, with the balance passing to the residuary legatees.
- Fairbank appealed.

## Issues

1. Whether a specific devise is adeemed when, during the testator’s permanent incompetency, a guardian sells the devised property and expends most proceeds for the ward’s support.
2. Whether, in that setting, the specific devisee is limited to identifiable remaining proceeds or may obtain satisfaction from the general estate for proceeds consumed for proper expenses.

## Decision

- The California Supreme Court reversed.
- The court held that a guardian’s sale of specifically devised property during an incompetency from which the testator does not recover does not adeem the specific devise.
- The specific devisee is entitled to any identifiable proceeds remaining at death.
- To the extent sale proceeds were properly spent for the ward’s debts, expenses, and support, the devisee may have the gift satisfied from the remaining estate (i.e., “redeemed” from the estate), rather than being limited to the small traceable balance.

## Legal Principles

- Ademption is tied to an act attributable to the testator that is equivalent to revocation or clearly indicates an intent that the specific gift fail.
- A change in the form of property subject to a specific testamentary gift does not cause ademption absent proof that the testator intended the gift to fail.
- When a competent testator personally disposes of specifically devised property so that it cannot be traced, ademption may occur without regard to subjective intent; that rationale does not apply to dispositions made by a guardian during the testator’s incompetency.
- Where a guardian sells specifically devised property during permanent incompetency and uses proceeds for authorized expenses, the specific devisee may claim remaining identifiable proceeds and obtain satisfaction from the general estate to the extent necessary to fulfill the devise.

## Conclusion

Because the sale and expenditure of proceeds resulted from a guardian’s management during Mason’s permanent incompetency rather than any revocatory act or intent by Mason, the specific devise to Fairbank was not adeemed; he was entitled to the remaining identifiable proceeds and to satisfaction of the devise from the rest of the estate to the extent possible.


In re Estate of Mason, 62 Cal. 2d 213 (Cal. 1965)