On exception to accounting, etc.
Cora Timken Burnett died a resident of Alpine, New Jersey, on January 7, 1956. In and by Item Third of her last will and testament she devised her real property lying east of Route 9-W, in the Borough of Alpine, Bergen County, New Jersey, together with the buildings and improvements thereon, to her husband, Dr. John C. Burnett.
Upon exceptions to the first intermediate account of the executors of the testatrix' estate, Gerald E. Monaghan, guardian ad litem for the defendants William Robert Timken, Jr., et al , had raised the question whether the devise of such property had adeemed at the time of Mrs. Burnett's death. The essential facts for determination of this issue are not in dispute. They are covered by a stipulation filed in the proceedings and by testimony of Dr. Burnett and may be briefly summarized as follows:
Dr. and Mrs. Burnett were married in 1920 and had occupied the Alpine property in question as their home for many years prior to her death. The property included the main house and numerous other buildings located on a tract of about 55 acres. Condemnation proceedings with respect to the property were pending at the time of the testatrix' death. The issue of ademption relates only to this property. Other property located west of Route 9-W in Alpine, New Jersey, which was given and devised to Dr. Burnett by Item Fourth of the decedent's will, was not connected in any way with their home property east of Route 9-W and was not the subject of condemnation proceedings.
Item Sixth of the will devises and bequeaths the residue of the testatrix' estate, "real and personal," one-half outright to her husband and one-half, in trust, to other beneficiaries. Item Twelfth, however, constitutes a separate residuary clause, by which the testatrix devises and bequeaths "any property that may revert to my estate, because of the failure of any of the trusts or gifts contained herein, to my husband, John Clawson Burnett."
On May 22, 1953 an action was commenced by Dr. and Mrs. Burnett to enjoin the New Jersey State Highway Commissioner from condemning the Alpine property devised by Item Third of the will, after Commissioner Abbott had ordered the commencement of condemnation proceedings earlier in the month. A preliminary injunction was granted, but the New Jersey Superior Court modified the injunction to permit the Commissioner to take possession of part of the property (22 acres). This conclusion was affirmed by the New Jersey Supreme Court on January 11, 1954. 14 N.J. 291.
On September 9, 1953 the Highway Commissioner filed a complaint for condemnation of the property in question. Appointment of three commissioners was demanded to fix the compensation to be paid for the taking of the property. The Commissioner did not make or tender any deposit with the court of the estimated fair compensation for the property at the time of filing of the complaint or at any time thereafter. No payment of any amount of money for the property was made until after judgment fixing the amount payable had been rendered and affirmed by the Supreme Court in 1957, almost a year and a half after Mrs. Burnett's death.
On November 18, 1954 the State Highway Commission took possession of that part of the property over which its proposed parkway was to be constructed. This consisted of vacant land along the westerly side of the property. Dr. and Mrs. Burnett remained in possession of the principal part of the property, which included their home and other buildings, and Dr. Burnett did not finally vacate the premises until June 1957.
The three commissioners were appointed by the Superior Court and filed their report on December 13, 1955. The award of the commissioners for the Alpine property in question was in the amount of $1,245,321.50. A prompt appeal from the award was taken by both parties and, in an order dated January 6, 1956 (the day before Mrs. Burnett's death), and filed January 9, 1956, the Superior Court, Law Division, recited the issue to be tried as "the
fixing of the just compensation * * * for the taking of the said land and premises as of September 9, 1953."
On February 20, 1956 the court entered an order substituting Dr. Burnett for Cora Timken Burnett as owner of the real estate described in the complaint. The order was specifically founded by the court upon the provision in Mrs. Burnett's will which devised the Alpine property to her husband.
The matter was tried before a struck jury, and a verdict in the amount of $1,585,600 was returned. Judgment on the verdict was affirmed by the Supreme Court on May 13, 1957. State v. Burnett , 24 N.J. 280. In June 1957 a check in settlement of the judgment against the State of New Jersey was delivered to counsel for Dr. Burnett. Such check of the State of New Jersey, dated June 24, 1957, was made payable to John C. Burnett, was in the amount of $1,617,031.79, and included interest on the aforesaid judgment.
The questions involved are as follows:
1. Whether there was an ademption of the devise of the Alpine property made by the testatrix to her husband, Dr. Burnett, in and by Item Third of her will.
2. Whether if there was an ademption of such devise of the Alpine property, or proceeds ultimately received in the condemnation proceedings, passed one-half to Dr. Burnett and the other half in trust for other beneficiaries under Item Sixth of the will, or entirely to Dr. Burnett under Item Twelfth of the will.
This court must decide a case novel in this State and throughout the United States. In doing so the court must consider certain principles.
Bouvier's Law Dictionary, Rawle's Third, Revision, p. 134 defines "ademption" as follows:
"The extinction or withholding of a legacy in consequence of some act of the testator which, though not directly a revocation of the bequest, is considered in law as equivalent ...