Reading v. Dixon

178 S.E.2d 322, 10 N.C. App. 319, 1971 N.C. App. LEXIS 1630

• Court: Court of Appeals of North Carolina
• Decided: January 13, 1971
• Docket: No. 7027SC565
• Status: Published

Opinion

HEDRICK, Judge.

The exceptions present the question of whether the facts found or admitted support the conclusions of law and the judgment entered. Appellants contend that the specific bequests! in Item IV of the Will were adeemed by the theft of the silverware on 8 August 1968, and that the insurance benefits should pass to them by virtue of the residuary clause in the will.

The principle of ademption in North Carolina has been defined as “. . . the destruction, revocation or cancellation of a legacy in accordance with the intention of the testator and results either from express revocation or is implied from acts done by the testator in his lifetime, evincing an intention to revoke or cancel the legacy.” King v. Sellers, 194 N.C. 583, 140 S.E. 91 (1927).

Applying the facts of the instant case to this definition of ademption, it is obvious that the theft of the silverware was not an act of the testator evincing an intention to revoke or cancel the bequest.

In Rue v. Connell, 148 N.C. 302, 62 S.E. 306 (1908), Brown, J., stated, “If the change on the form of the property is brought about by the act of another, it will not effect an ademption of the legacy if the property in its new form is in the possession of the testator at his death.”

The theft of the silverware was the “act of another,” and effected a change in the form of the property. Following the theft, the property, in its changed form, was embodied in a claim for insurance benefits which was in the possession of the testator prior to his having the stroke which resulted in his death.

It is our opinion, and we so hold, that the facts found support the conclusions of law, and the judgment entered thereon is affirmed.

Affirmed.

Judges Campbell and Britt concur.