It is likely that in general a just result is reached in the decision to carry out the intent of the testator and give to the legatee an equivalent for the specific legacy which was not found in the assets of the estate. But the fixed rule of law in this State seems to prevent such a determination. “ It is a rule which prevails without regard to the intention of the testator or the hardship of the case. * * * The law is too firmly settled to admit of relaxation, however peculiar or pressing the circumstances. The thing given is gone, and no court is at liberty to substitute a different thing for that which the testator had himself given.” (Beck v. McGillis, 9 Barb. 35, 59.)
There are jurisdictions where in certain instances the ademption of a legacy is made to depend upon the question of intention. In this State the rule is to the contrary. Unlike revocation or satisfaction, ademption is not a question of intention, but is entirely a rule of law. The doctrine is that the one to whom a specific legacy is given can ordinarily take nothing thereby unless the legacy remains in specie at the death of the testator; and if in the latter’s lifetime it has been destroyed, consumed, sold, exchanged or in any manner disposed of so that nothing remains in the estate to which the dispositive words of the will can be deemed applicable, it is lost. (Abernethy v. Catlin, 2 Dem. 341, 343.)
This rule was early established (Walton v. Walton, 7 Johns. Ch. 258) and has been consistently followed. (Beck v. McGillis, supra; Ametrano v. Downs, 170 N. Y. 388; Matter of Brann, 219 id. 263, 268.)
*294The same rule prevails in other jurisdictions. In England (Slater v. Slater, L. R. [1907] 1 Ch. 665; 1 Jarman Wills [7th ed.], p. 163); in the United States Supreme Court (Kenaday v. Sinnott, 179 U. S. 606, 617) and in Pennsylvania (Blackstone v. Blackstone, 3 Watts, 335, 338).
The question presented here is unusual, and the facts vary from those in the cases heretofore cited. There are authorities holding that ademption occurs under the circumstances here under consideration. Where the conservator of the property of an incompetent person has utilized, for the benefit of his ward, the specific property bequeathed, an ademption has followed as a rule of law. (Matter of Freer, L. R. 22 Ch. Div. 622; Hoke v. Herman, 21 Penn. St. 301.) There are authorities to the contrary in other jurisdictions, as has been pointed out in the prevailing opinion. (See, also, Estate of Cooper, 95 N. J. Eq. 210.)
We are then confronted with the problem as to whether the strong rule long prevailing in this State shall be modified and an exception made in a case where there could be no possible intention on the part of the testator to make a change, but the particular assets were sold by the committee for the entirely legal purpose of providing support and maintenance for an incompetent person. The restriction on the sale of property by the committee except by consent of the court relates only to real property. (Civ. Prac. Act, § 1377; Matter of City of New York [Covert Ave.— Schmidt], 136 App. Div. 887; Maclay v. Equitable Life Assur. Society, 152 U. S. 499, 503; 14 R. C. L. 574; 12 id. 1124.) The committee was as capable of forming an intent as to what personal property should be sold for the support of the incompetent as the testator would have been had he remained of sound mind and found it necessary to sell property to maintain himself. It is always contemplated that an incompetent person may be restored to reason and his property may be returned to him (Civ. Prac. Act, § 1382); and that he might again become competent to change, his will. In the meantime the acts of the committee in good faith are the acts of the incompetent.
But I think this discussion is beside the question, if we follow the rule that we will look only to “ the fact of change.” Having ascertained that there has been change and disappearance of the specific property bequeathed, it is unnecessary to consider “ the reason for the change.” (Matter of Brann, supra, 268.) It seems to me that it matters not whether the property was disposed of in one way or another — whether by legal means or otherwise. The test is whether the property specifically bequeathed is found in the assets of the estate. If it becomes destroyed by use, fire *295or other cause; if it is taken under legal process, by theft or otherwise; if it is sold or exchanged by the committee of an incompetent for the maintenance of his ward — there is as effective ademption of the legacy under the rule in this State as though the specific property had been disposed of by the intentional act of the testator.
Evidently the will was drawn by a lawyer. Acting under legal advice, the testator could have made certain that the object of his bounty would receive a legacy by making it general instead of specific. Having failed to do that, he took the risk of ademption. My view of the doctrine in this State is, that the courts are not authorized to substitute something else in lieu of the legacy-— no matter what fine distinctions may be made and what subtle reasoning employed to bring about a seemingly just result.
I favor affirmance.
Decree, so far as appealed from, reversed on the law, with costs to the appellant payable out of the estate, and matter remitted to Surrogate’s Court for further proceedings in accordance with the opinion.