Conford, Foley and Schalick. The opinion of the court was delivered by Schalick, J.s.c. (temporarily assigned).
This issue is presented to the court on a stipulation of facts to determine whether a specific bequest by will of certain bank accounts has been adeemed by the transfer of the moneys from four banks named in the will, during the testator's lifetime, to another bank and a savings and loan association. The County Court held the legacy was limited to the moneys on deposit in the banks named in the will and there was an ademption, and by reason of the failure of the legacy the moneys became a part of the residuary estate. The specific legatees appeal.
It is to be noted that the attorneys for the administrator c.t.a. , whose petition for directions as to distribution gave rise to this litigation, wrote the court stating it would not
participate in this appeal "in the interest of conserving the rather small estate of the deceased," but that its position before the trial court had been in accord with the determination of that court.
The will of the testator was submitted to this court and the pertinent provisions are:
"I, LOUIS EATON HALL, of the City of Rochester, Monroe County, New York, being of sound mind and memory, do make, publish and declare this my last Will and Testament, in the manner following, that is to say:
FIRST: I direct that all of my just debts and funeral expenses be paid.
SECOND: I give and bequeath to my nephew, RONALD HOPKINS HARKNETT, the son of Erville M. Hall and her former husband Frederick J. Harknett, the sum of ONE HUNDRED DOLLARS ($100.00).
THIRD: I give and bequeath all the rest, residue and remainder of my property which shall be in the form of bank accounts in the Union Trust Company of Rochester, the Rochester Savings Bank, the Monroe County Savings Bank of Rochester, N.Y. and the Community Savings Bank of Rochester, N.Y., and in the form of stocks which I may die possessed to my nieces, ERVILLE M. HALL, 88 Tuscan Road, Maplewood, N.J., EDITH FRANK, Dirk Court, Northport, Long Island, and DELLA MOELLER, 56 Glenwood Avenue, Jersey City, N.J., and to my nephew WILLIAM LE ROY HALL, 131 River Drive, East Patterson, N.J., absolutely, share and share alike.
FOURTH: All the rest, residue and remainder of my property of whatever nature and wherever situate, I give and bequeath to my nephew, RONALD HOPKINS HARKNETT."
At the time of the execution of the will, on January 8, 1948, the testator resided and was domiciled in the City of Rochester, New York. On that date he had savings accounts in four banks in Rochester, New York, in amounts not stated in the record. After the execution of the will (the date is not fixed), he moved his residence and domicile from Rochester, New York, to Maplewood, New Jersey, where he died domiciled on July 12, 1957.
On August 9, 1955 the testator closed out his account in one Rochester bank in the amount of $1,325.50 and on August 24, 1955 ...