Wills - Ademption - Sale of Property by Guardian of Physically Incompetent Testator

By a will executed in 1950, testator devised his undivided one-half interest in his home to his wife in fee simple. A year · later and with his consent, the probate court appointed a guardian for him on the ground of physical incompetency. In 1952 the guardian sold the devised property under court order, at which proceeding the testator was properly before the court, was consulted, and agreed to the sale. A small portion of the proceeds was used for the support of the testator but $7271 remained at his death five months later and was turned over to his executors.

The probate court found that the sale of the testator's interest in the property did not operate as an ademption. On appeal, held, reversed. Authority to the effect that the sale by a guardian of a mentally incompetent testator does not adeem a specific devise does not apply to the case of a physically incompetent testator. The testator consented to the sale and at all times possessed full testamentary capacity.

Roderick v. Fisher, 97 Ohio App. 95, 122 N.E. (2d) 475 (1954).