Estate of Trainer

This is an appeal by a residuary legatee from the decree determining heirship in favor of specific legatees Margaret and John Duncan, husband and wife.

The will, drawn by an attorney, devised one described parcel of real property to Margaret and another described parcel to Margaret and John in joint tenancy. Subsequently both parcels were sold and the testator received in each case a note for the balance of the purchase price secured by deed of trust on the parcel sold. The probate judge determined that the unpaid balance of each note so secured by deed of trust passed to Margaret and John Duncan under the will.

Appellant takes the position that by the sales of the subject matter of the two devises they were adeemed. (Proh. Code, §73.)

Respondents rely on Probate Code, section 78, and Estate of Moore, 135 Cal.App.2d 122 [ 286 P.2d 939 ], to support the finding of the probate court that as to the unpaid balances of the two promissory notes secured by deed of trust on the parcels of real property specifically devised to them there was no ademption.

Probate Code, section 78, reads: “Neither a charge or encumbrance placed by a testator upon property previously disposed of by his…