Wasserman v. Cohen, 606 N.E.2d 901, 414 Mass. 172 (1993)
Author: Anonymous

Facts: The deceased created a trust in 1982 naming herself trustee and settlor. When she executed the trust, she held record title to apartment building as the trustee.  Sometime later she decided to sell that property, but never conveyed her interest in the property to the trust. On her death the trustee was directed to distribute the property within the trust as set out; the apartment building to the Pl.

Issue: Whether the Doctrine of Ademption by Extinction applies to a specific gift of real property contained in a revocable inter vivos trust?

Holding: The doctrine applies and the devise was adeemed, the gift is extinguished.

Procedure: Pl, Wasserman, brought action for declaratory judgment in Probate Ct against Df, Cohen, the trustee. Pl requested trustee be ordered to pay the proceeds of the sale of an apartment building which, under the trust would have been conveyed to the Pl had it not been sold by trustor prior to her death. Df filed Motion for Dismissal, granted; Supreme Ct. Affirmed.

Rule: When a testator disposes, during his lifetime, of the subject of a specific legacy or devise in his will, that legacy or devise is held to be adeemed, “Whatever may have been the intent or motive of the testator in doing so.” Walsh, 338 Mass. 278, 280 (1959). 

The focus is on the actual existence or nonexistence of the bequeathed property, and not on the intent of the testator with respect to the bequest.

Rationale: To be effective, a specific legacy or devise must be in existence and owned by the testator at the time of death. The doctrine seeks to give effect to a testator’s probable intent by presuming he intended to extinguish a specific gift when he disposed of it prior to his death. 

A determination as to whether a devise is general or specific is the proper starting point.  The deceased created the trust along with her will as part of a comprehensive estate plan.  Under the residuary clause, she gave the majority of the estate to the trustee, who was to dispose of the property in accordance with the trust.  There is no reason to treat the distribution under a different rule whether under a trust or will in this instance.