Surrogate Peter Kelly
Petitioner, one of decedent’s daughters, Marcia, moved for summary judgment, while respondent, her sister, Brenda, opposed the motion. Their mother’s will devised real property to Marcia and Brenda in equal shares subject to Brenda’s life estate. Under a power of attorney, Brenda executed a deed transferring the property to herself three months before decedent’s death. She obtained two mortgages on the premises, but after a proceeding by Marcia, the court found the deed null and void. Marcia now sought a determination the devise of the property adeemed, and the property must pass in accordance with the residuary clause of decedent’s will—50 percent each to Marcia and Brenda, but extinguishing the life estate granted to Brenda. The court noted the exceptions carved out for the ademption statute did not apply here. It stated the fact the devised property was available and capable of being distributed in exact accord with the terms of the will at the end of the administration of the estate trumped the fact that it was not so capable at the time of decedent’s death. Thus, the court denied Marcia’s motion for summary judgment seeking ademption of the devise of real property, and granted Brenda summary judgment on the issue.
