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."' [Citations.] A change in the form of property subject to a specific testamentary gift will not effect an ademption in the absence of proof that the testator intended that the gift fail. [Citations.] . . ." (See also Estate of Zahn (1971) 16 Cal.App.3d 106, 113 [ 93 Cal.Rptr. 810].) (3b) In absence of proof of an intent that the gift fail, there should be no ademption.
Additionally, the facts in both cases are different as neither involves a judge who was reappointed to office pursuant to article VI, section 6 of the California Constitution after the expiration of his original term. (4) Section 6 provides that a retired judge may be assigned to any court by the Chief Justice, and the power of the Chief to reappoint a formerly retired judge has been established (see Estate of Zahn (1971) 16 Cal.App.3d 106, 116 [ 93 Cal.Rptr. 810], cert. den., 404 U.S. 938 [30 L.Ed.2d 251, 92 S.Ct. 269]). Once a judge is so appointed, he has "judicial authority" (see Martello v. Superior Court (1927) 202 Cal. 400, 406 [ 261 P. 476]).
The constitutional provision he cites for stipulated hearings by temporary judges (Cal. Const. art VI, § 21) is inapplicable here; retired judges are assigned by the Chief Justice pursuant to a different section of the constitution. (See Cal. Const. art VI, § 6(e); Estate of Zahn (1971) 16 Cal.App.3d 106, 116.) These two constitutional provisions are distinct and operate differently from each other.
According to the Court of Appeal for the Fifth Appellate District, "In determining whether the change is in form only, California courts have lately tended to avoid strict rules of ademption; rather they look to the inferred or probable intent of the testator under the particular circumstances." (Id. at p. 173; see Estate of Zahn (1971) 16 Cal.App.3d 106, 113.) In Estate of Mason, supra, 62 Cal.2d at page 216, our Supreme Court ruled: "[A] specific testamentary gift is adeemed regardless of the testator's intention when the specific property has been disposed by the testator and cannot be traced to other property in the estate [citations], or when the testator has placed the proceeds of such property in a fund bequeathed to another [citation] . . . ." (Ibid.; Estate of Ehrenfels (1966) 241 Cal.App.2d 215, 227-228.)
Similarly, a California court applied cy pres where the stated purposes of the gifted properties became impracticable. In re Estate of Zahn, 16 Cal.App.3d 106, 93 Cal.Rptr. 810 (1971). There, the testatrix left two residential properties to the Salvation Army.
In Lockwood v. Killian ( 172 Conn. 496), it was held that although the restriction to males was not illegal, because the trustees could not find enough candidates to exhaust the income, the scholarships might be given to girls under the cy pres doctrine. In Matter of Zahn ( 16 Cal.App.3d 106), it was held that a trust establishing a rest home for Christian women and girls was not invalid. (See, also, Moore v. City County of Denver, 133 Col 190; Harrold v. First Nat. Bank of Fort Worth, 93 F. Supp. 882; Shapiro v. Columbia Union Nat. Bank Trust Co., 576 S.W.2d 310 [Mo].)