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
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
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.
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.