pro torn. — Mary Sorensen executed an holographic will as follows:

On November 13, 1939, Mary Sorensen sold the property referred to in her will as “my home” and the purchase price was delivered to Mary Sorensen in the form of a check which was in her possession uncashed at the time of her death on December 8, 1939. The check was delivered to the administrator. Upon the hearing of the petition for distribution the court concluded that the funds representing the sale of “my home” should be distributed in four equal shares to the parties named in the will.

Mrs. Frank Clare appeals from the decree of distribution on the ground that the amounts decreed to D. S. Jones, G. K. Sorensen and George Camp, were a part of the residue and remainder of the estate and should have been distributed to her as residuary legatee.

The question to be decided is whether the conveyance of the real property devised in the will by the testatrix after the execution of the will constituted an ademption of the devise of said real property.

“Ademption of a specific legacy is the extinction or withdrawal of it in consequence of some act of the testator equivalent to its revocation, or clearly indicative of an intention to revoke. The ademption is effected by the extinction of the thing or fund bequeathed, or by a disposition of it subsequent to the will, which prevents its passing by the will, from which an intention that the legacy should fail is presumed.” (Kramer v. Kramer, 201 Fed. 248, 253 [ 119 C. C. A. 482 ].) See, also, Estate of Goodfellow, 166 Cal. 409 [ 137 Pac. 12 ],

This definition accurately fits the facts of the ease at bar. The month before Mary Sorensen died she had sold the property which was mentioned in the will and thus the ademption was effected by the disposal of the property, by an act which prevented its passing by the will.

Section 73 of the Probate Code provides:

When Mary Sorensen conveyed the property to the purchaser the conveyance operated as a revocation of the testamentary disposition. As was said in Estate of Benner, 155 Cal. 153, 155 [ 99 Pac. 715 ] :

Another rule applies when the will directs the sale of specific property after the testator’s death and payment of the proceeds to a designated legatee. In such event, the latter, in case a sale was effected by the testator in his lifetime and the proceeds are identifiable, is held to be entitled to the money, the sale by the testator being deemed to have been made merely to facilitate the creation of the fund which was designed for the legatee. (Estate of Dwyer, 159 Cal. 664 [ 115 Pac. 235 ].)

In the case at bar the will did not direct the executor to sell the specific property after the testatrix’s death and divide the proceeds. Here the testatrix made a specific devise of her home, devising the same to C. K. Sorensen for his lifetime with the remainder over to D. S. Jones, Mrs. Frank Clare and George Camp. The administrator with the will annexed had no authority to sell the property or to divide the proceeds. If, after the property was distributed to Mr. C. K. Sorensen in accordance with the terms of the will and during his lifetime he desired to sell the property and divide the proceeds four ways, he had the privilege of so doing, but the property had to be distributed first under the terms of the will. When the property was sold prior to decedent’s death there was nothing to pass under the will so far as the specific devise of the home was concerned. Mr. Sorensen could not make the election as to whether he would use it for his lifetime and allow the remainder over to the other three or sell it and divide the proceeds. The sale constituted an ademption and there was nothing to pass to the devisees.

The question now arises, to whom should the court distribute the money that came from the sale of “my home”? No provision for it, of course, is made in the will for the reason that when the will was made the testatrix apparently had no idea of selling the property. After she had sold the property and adeemed the specific devises, she passed away before having an opportunity to execute a codicil or a new will in conformity with the ademption. There is no residuary clause in the will which would direct the distribution of this money. The clause in the will: “All Jewelry and personal effects ... go to Mrs. Frank Clare” cannot govern, for it is obvious that this clause refers to clothing and ornaments or any other small articles which usually attend the person, and is not a general residuary clause. (Estate of Lovejoy, 38 Cal. App. (2d) 69 [ 100 Pac. (2d) 547 ].)

In Barney v. May, 135 Minn. 299 [ 160 N. W. 790 ], the court said:

We hold that the will does not dispose of the money derived from the sale of “my home”.

When the appeal is taken on the judgment roll alone, this court will reverse a decree of distribution when the error appears as it does here on the face of the record.

The judgment is reversed.