¶1dissenting. I dissent from that part of the majority opinion which holds that gifts of “the proceeds from two real estate escrow accounts” created specific, rather than demonstrative, legacies.
¶2In determining whether a legacy is specific or demonstrative many courts have recognized a distinction between gifts of specific property and gifts of the proceeds of specific property. Note: “Wills — Ademption: Bequest of Proceeds of Specific Property,” 5 Vand. L. Rev. 125 (1951). While our cases have not clearly set out this distinction it seems to have been followed and we have traditionally opted for the better view which is not to apply the doctrine of ademption to a gift of the proceeds where the fund can be traced and identified in a subsequently purchased security. This reluctance to extend the doctrine of ademption to a demonstrative legacy of “proceeds” where the funds can be traced and identified is more likely to effectuate the testator’s intention. See Mee v. Cusineau, 213 Ark. 61, 209 S.W.2d 445 (1948); Mitchell v. Mitchell, 208 Ark. 478, 187 S.W.2d 163 (1945), and 5 Vand. L. Rev., supra.
¶3If the testator had made a bequest of a particular item, as distinguished from all others of the same kind, and which could be satisfied only by the delivery of that particular thing there would be a specific legacy. Holcomb v. Mullin, 167 Ark. 622, 268 S.W. 32 (1925). However, “the proceeds from two real estate accounts” is not a specific legacy. It is a legacy by designation, a demonstrative legacy. A demonstrative legacy is one stated by designation only, such as a certain interest or fund from which the bequest of money, or amount of value, shall be primarily paid or satisfied. Stifft v. W.B. Worthen Co., 177 Ark. 204, 65 S.W. 2d 527 (1928). The testator did not bequeath the Gardners’ note, as distinguished from all other notes, and which could be satisfied only by delivery of that note. Instead, he bequeathed “the proceeds from two real estate accounts” and the Gardners’ note was included within one of the accounts. Thus there was a demonstrative legacy of “the proceeds,” nota specific legacy of the Gardners’ note. When a testator has given a demonstrative legacy we look to the intention of the testator instead of applying the doctrine of ademption as a matter of law. Mee v. Cusineau, supra.
¶4The Gardners’ note was prepaid in full prior to the date of death of the testator. The proceeds of the earlier regular monthly payments cannot be traced and there was an obvious ademption of the proceeds to that extent, but the proceeds of the final payment can be traced by the cashier’s check and identified with absolute certainty as representing $12,405.65 of the $15,000 purchase price of the certificate of deposit. The majority opinion states, “There were no proceeds to be collected from the Gardner sale at the time of the testator’s death. He had received the money and converted it into other forms of property.” That is exactly the point — the main issue — only the form of security was changed. The form of security was changed from the Gardners’ promissory note to the bank’s promissory note. In Mitchell v. Mitchell, supra, we said:
. . . Generally speaking a change in the form of a security bequeathed does not of itself work an ademption. It must be shown that the testator intended to give specific securities of the form or nature mentioned in the will . . . [before there is an ademption].
¶5In the same vein, in Mee v. Cusineau, supra, we said:
... If the terms of the will show that testator contemplates some change in the form of the gift, or even a sale and reinvestment of the proceeds, and that he intended to pass the proceeds, or the property in which the proceeds are reinvested, to the original beneficiary, full effect will be given to such provision. If testator gives the “proceeds” of certain property, and it appears, from the terms of the will, that he gives such proceeds even if the property is sold in his life time, the beneficiary may have the proceeds as far as they can be traced . . . [Emphasis supplied.]
¶6The testator stated that he intended to devise the proceeds. The greater part, or $12,405.65, of the testator’s interest in the certificate of deposit is indelibly traceable to the final payment, or proceeds, of the Gardners’ promissory note. The final payment on the note was not commingled with other money in any of the testator’s other accounts. He simply took the certified check for final payment in the amount of $12,405.65 and added to it $2,594.35 from his checking account and purchased the $15,000 certificate of deposit. There is only a change in the form of security and there should be no extinction by ademption of that part of the certificate of deposit which $12,405.65 bears to $15,000 or 82.69 percent of the certificate.
¶7The majority opinion is not buttressed by the statement “Obviously, the testator could have placed his children’s names on the certificate of deposit if he wanted them to receive it.” If the testator was familiar with our prior cases he surely thought his children would receive the demonstrative legacy which he described as “the proceeds from” the accounts. But regardless of whether he was familiar with a demonstrative legacy, if this concept is followed to its ul tímate conclusion, the will would have been ineffective to pass even the original promissory notes because “he could have placed his children’s names” on all of his property. This rhetoric amounts to an ademption of the doctrine of wills rather than the application of a doctrine of partial revocation by operation of law.
¶8I would hold that there should be no extinction by ademption as to “the proceeds” bequeathed which can be clearly traced and definitely identified in a subsequently purchased security.