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

  • Drapkin established a trust. She funded the trust with some property, and retained the right to add more property by inter vivos transfer or by will.
    • Part of the property contained in the trust was an apartment building.
    • Drapkin retained the right to withdraw property from the trust at any time.
  • Drapkin wrote a will directing the trust to give the apartment building to Wasserman after Drapkin’s death.
    • However, at some point, Drapkin sold the apartment building, and did not put the $$$ from the sale into the trust.
  • Drapkin died. Wasserman asked the trustee (Cohen) for the apartment building, but they didn’t have it. Wasserman sued the trust for the value of the apartment building.
  • The Trial Court found for Cohen. Wasserman appealed.
    • The Trial Court found that the gift had been adeemed.
  • The Massachusetts Supreme Court affirmed.
    • The Massachusetts Supreme Court found that once a testator disposes of the subject of a specific legacy or devise in his will, that legacy is held to be adeemed, whatever may have been the intent or motive of the testator in doing so.
    • Wasserman unsuccessfully argued that the doctrine of ademption ignores the testator’s intent. Wasserman claimed that Drapkin clearly wanted Wasserman to get something, so if the apartment was no longer available, she probably would have wanted Wasserman to have the cash value of the apartment.
      • However, the Court found that the apartment building was a specific devise. Since that devise no longer existed, the gift was void by the doctrine of ademption by extinction.