Yivo Institute v. Zaleski

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YIVO Institute for Jewish Research v. Paul Zaleski, Personal Representative of the Estate of Jan Ka rski, et al. No. 56, September Term, 2004 Headno te: The Or phans C ourt for M ontgom ery County did not err in finding that Dr. Karski s inter vivos gift of stocks and cash to the YIVO Institute for Jewish Research was intended by Dr. Karski to adeem the legacy granted to YIVO in Dr. Karski s Will. Thus, the legacy was adeemed by satisfaction. The critical question in an ademption by satisfaction case is what was the intent of the testator at the time the inter vivos gift was made. Intent may be shown by extrinsic or parol evidence and need not be demonstrated by a contemporaneous writing. Here, the testator gave YIVO stocks and cash equal to the value of the legacy at the time it was created. The g ift being of a similar kind and for the same purpose as the legacy, the legacy was adeemed. IN THE COURT OF APPEALS OF MARYLAND No. 56 September Term, 2004 ______________________________________ YIVO INSTITUTE FOR JEWISH RESEARCH v. PAUL ZALESKI, PERSONAL REPRESENTATIVE OF THE ESTATE OF JAN KARSKI, ET AL. ____________________________________ Bell, C.J. Raker Wilner Cathell Harrell Battaglia Greene, JJ. ______________________________________ Opinion by Greene, J. ______________________________________ Filed: May 11, 2005 In this case w e are asked to revise the Maryland law of ademption by satisfaction and require that a testator s intention to adeem a legacy can be proven only by a writing made contemporaneous with an inter vivos gift. Petitioner, in its attempt to persuade us to change the law, relies in part on the assertion that the doctrine of ademption is in conflict with Md. Code (2001), § 3-106 of the Estates & Trusts Article, the Restatement (Third) of the Law of Property (Wills and Other Donative Transfers) § 5.4 (1999), and the Uniform Probate Code §2-609 (amended 1990). In addition, petitioner assails the decision of the intermediate appellate court, YIVO Institute for Jewish Research v. Zaleski, 156 Md. App. 527, 847 A.2d 510 (200 4), and con tends that the Court of Special A ppeals misapplied the law of ademption in its review of the decision of the Orphans Court. For reasons to follow in this opinion, we decline the invitation to rewrite the law of ademption and affirm the judgm ent of th e interm ediate a ppellate court. On September 25 , 2002, the O rphans C ourt for M ontgom ery County 1 denied petitioner s, the YIVO Institute for Jewish Research ( YIVO ), request to receive distribution of a bequest in the Will of Jan K arski ( Dr. Karski ). The Orphans Co urt concluded that Dr. Karski s inter vivos gifts to YIVO were intended by Dr. Karski as a fulfillment of the legacy under his will. The petition was opposed by respondents, the personal representative of Dr. K arski s estate and two residua ry legatees under Dr. Karski s 1 There is no separa te Orpha ns Court f or Mon tgomery Co unty as is the case f or nearly every other Maryland subdivision. Rather, the case was heard and decided by a judge of the Circuit Court for Montgo mery County, sitting as the Orphans Court, pursuant to Md. Code (1974, 2001 Repl. Vol.), § 2-106( c) of the Estates & Trusts Article. Will the American Center of Polish Culture and the Kosciusko Foundation. YIVO appealed to the Court of Special Appeals seeking reversal of the decision of the Orphans Court. YIVO argued in the Court of Special Ap peals, as they do here, that the sp ecific bequest to YIVO in the will was not adeemed by the lifetime gifts.2 YIVO also contends that the Orphans Court erred in admitting the testimony of Dr. Hann a Kaya Ploss ( Dr. Ploss ) as to oral stateme nts made by Dr. Karski after satisfaction of Dr. Karski s pledge to YIVO. The intermediate appellate court aff irmed the decision of the Orphans Co urt stating that the Orphans Court w as not clearly erroneous in its conclusion that Dr. Karsk i intended f or his bequest to YIVO to act only as security for his obligation to the organization. It also affirmed the admission of Dr. Ploss s testimony deferring to the trial court s evidentiary rulings a nd fac tual find ings. YIVO, 156 Md. App. 527, 847 A.2d 510. By petition for w rit of certiorari to this Court, YIVO challenges the judgment of the Court of Special Appeals asserting that the lower courts erred in failing to require written evidence of intent to adeem, misapplied the presumptions of prior case law regarding ademption by satisfaction, and improperly admitted and/or credited Dr. Plos s s te stimony. We granted certiorari to consid er YIV O s co ntention s. Yivo v. Zaleski, 382 Md. 688, 856 A.2d 723 (20 04). 2 Adeem is defined a s to revok e or satisfy (a w illed gift) by som e other gift. B LACK S L AW D ICTIONARY 42 (8th ed., 200 4). 2 Background Dr. Karski w as a hero o f the Polish undergro und durin g World War II. He reported to Allied powers on the events transpiring in Poland until he was captured by the Nazis.3 During his confinement he was tortured and suffered greatly. After atte mpting su icide to avoid disclosures that could have endangered the underground movement, Dr. Karski was taken to a Nazi-controlled hospital in critical condition. He was rescued from the hospital by members of the underground movement. Several lives were lost during the rescue effort and one rescuer, Zofia Hanuszkiewicz ( Zofia ), spent several years in a German prison camp for her involv emen t. After the war, D r. Karski em igrated to the United States and s ettled in Chevy Chase, Maryland. Dr. Karski remained committed to Polish culture until his death, developing ties with several Polish organizations, including The Kosciusko Foundation ( Foundation ) and The American Cente r of Po lish Cu lture ( C enter ) . He spen t much of his life attemp ting to mend the relationship between Jewish and non-Jewish Poles which had been fractured by events occurring in Poland during WW II. Following the death of h is wife, Pola Nirenska, Dr. Karski de veloped a plan to me morialize bo th of them by creating an award to acknowledge Jewish authors of Polish origin.4 In 1992, Dr. Karski entered into an agreement 3 The following biographical information regarding Dr. Karski is derived from the briefs of the parties. 4 The annual award was designed to recog nize liv ing auth ors of p ublishe d wor ks . . . dealing with or otherwise describing contributions to Polish culture and Polish science by (continued...) 3 with YIVO to establish an endowment fund to provide an annual award of $5,000 to authors whose works fo cused on or otherw ise described contribution s to Polish culture and Polish science by Poles of Jewish origin. Dr. Karski formalized his pledge in a letter dated November 25, 1992 ( Le tter Agreem ent ). The L etter Agree ment prov ided, in pertine nt part: The endowment will consist of a gift of $100,000.00 in cash to be made by me to YIVO in my will, or in cash and/or marketable securities of the same total market value during my lifetime. A second letter, identical to the November 25, 1992, letter, was signed February 25, 1993. It is unclear from the record, however, why the second letter was executed. On October 25, 199 3, eight months after w riting the second Letter A greement, Dr. Karski executed his will. Article SECOND of the will provides: I hereby give and bequeath to YIVO - Institute for Jewish Research (tax exempt organization Dr. Lucjan Dobroszycki and Dr. Ludwik Seidenman) all my shares of Northern States Power (N.St.Pw.) of which 400 share certificates are located in Riggs National Bank, Friendship Branch (4249 block of Wisconsin A venue), Safe D eposit Box 240 , and the rest approxim ately 1,780 shares, is held by Northern States Power a s automatic reinvestme nt. All these shares (approximately 2,180) should be transferred (not sold) to YIVO. At the time the will was exe cuted, Northern States P ower Com pany shares had a value of about $100,000. At the time of Dr. Karski s death the shares were worth $113, 527.64. In addition, pursuant to the Third Clause of the will, stock in two other utilities, New York State G as & E lectric an d Ohio Edison , was left to the Wash ington Pe rforming Arts Society ( WPA S ). Mo st of the rem aining estate was bequeathed in equal shares to the 4 (...continued) Poles o f Jewi sh origin and by P olish Jew s from the M iddle A ges to th e curren t time. 4 Foundation, the Center, three of D r. Karski s elderly relatives in Poland, and Zofia, the woman who had helped rescue him from the hands of the Nazis. During the period November 28, 1995, to January 22, 1996, Dr. Karski made a series of lifetime gifts of utility stocks to YIVO consisting of 1,809 sh ares of N ew Yo rk State Electric & Gas Corporation, 2,300 shares of Ohio Edison Company, and cash.5 The value of these sto ck gifts totaled $ 99,997 .69. On February 7, 1996, Dr. Karski made a further gift of $2.31, bringing the total value of the gifts to YIVO to exactly $100,000. Dr. Karski did not amend his will to reflect the inter vivos transfer of utility stock and cash to YIVO. Dr. Karski died on July 12, 2000. At that time, the shares of Northern States Power Company remain ed an a sset of h is estate. Paul Zaleski, who qualified as personal representative, denied YIVO s request for payment of the bequest on the basis that Dr. Karski s earlier gift satisfied the legacy. As a result, YIVO filed a Petition for Order Directin g Distrib ution o f Spec ific Be quest. The Orphans Court conducted an evidentiary hearing and rendered an oral opinion finding that Dr. Ka rski intended for his lifetime gifts to YIVO to satisfy the legacy under the 5 Because the New York State Gas & Electric and Ohio Edison shares that were given to YIVO during Dr. Karski s lifetime were the same stock as bequeathed to WPAS in the will, the bequest to WPAS was treated by the Personal Representative as adeemed by extinguishme nt. Ademption by extinguishment generally applies to specific legacies and occurs because the unique property that is the subject of a specific bequest has been sold, given awa y, or destroyed, or is not otherwise in existence at the time of the testator s death. B LACK S L AW D ICTIONARY 42 (8th ed., 2004). In this case, the shares bequeathed to WPAS were g iven aw ay and, th us, not in existen ce at the time of Dr. Ka rski s de ath. 5 will. Following the entry of final judgment, YIV O appealed to the Court of Specia l Appeals which affirmed the judgment of the Orphan s Court. W e granted Y IVO s p etition for a w rit of certiorari. Standard of Review The standard of review in this action is summarized in Maryland Rule 8-131: ( c) Action tried without a jury. When an action has been tried without a jury, the appellate court will review the case on both the law and the evidence. It will not set aside the judgment of the trial court on the evidence unless clearly erroneous, and will give due regard to the opportun ity of the trial court to judge the credibility of the witnesses. Md. Rule 8-1 31 (2005). We recently discussed our review pursuant to Md. Rule 8-131. We said: [T]he appellate court will review the case on both the law and the evidence. It will not set aside the judgment of the trial court on the evidence unless clearly erroneous, and will give due regard to the oppo rtunity of the trial co urt to judge th e credibility of the witnesses. The deference shown to the trial court s factual findings under the clearly erroneous standard does not, of course, apply to legal conclusions. When the trial court s [decision] involves an interpretation and application of Maryland statutory and case law, our Court must determine whether the lower court s conclusions are legally correct under a de novo standard of review. Nesbit v. Government Employees Insurance Company, 382 Md. 65, 72, 854 A.2d 879, 883 (2004) (internal citations omitted). If there is any competent material evidence to support the factual findings of the trial court, those finding s cannot be held to be clearly erroneous. Solomon v. Solomon, 383 Md 176, 202, 857 A.2d 1109, 1123 (2004). Furthermore, an 6 appellate court may affirm a trial court s decision on any ground adequately shown by the record even though the ground was not relied upon by the trial court or the parties. Offutt v. Montgomery Co. Bd. of Edu., 285 Md. 557, 563 n.3, 404 A.2d 281, 285 n.3 (1979) (citing Robeso n v. State, 285 Md. 498 , 403 A.2d 122 1 (1979)). Discussion At the outset, we find it important to determ ine the p recise m eaning of ad emptio n. Black s Law Dictionary defines ademption as the destruction or extinction of a testamentary gift by reason of a bequeathed asset s ceasing to be a part of the estate at the time of the testator s death. B LACK S L AW D ICTIONARY 42 (8th ed., 2004). W e have said that ademption is defined as a revocation, recalling, or cancellation, of a legacy, according to the apparent intention of the testator, implied by law from acts done by him in his life, though such acts do not amount to an express revocation of it. Von Stein ner v. Sorre ll, 259 Md. 228, 230, 269 A.2d 604, 605 (1970) (citations omitted). The Tenn essee Supreme Court discussed the doctrine of adem ption and s tated that, ademption is generally defined as the extinction, alienation, w ithdrawal, or satisfaction of the legacy by some act of the testator by which an intention to revoke is indicated: the doing of some act with reg ard to the subjectmatter which interferes with the operation of the will. In re Estate of Hume v. Klank, 984 S.W.2d 602, 604 (Tenn. 1999) (quoting America n Trust & Banking Co. v. Balfour, 198 S.W. 70, 71 ( Tenn . 1971) ). As the definitions above de monstrate, there are two distinct types of ademption. The 7 first occurs when the unique pro pert y that is the subject of the specific bequest has been sold, given a way, or destro yed, or is not otherwise in existence at the time of the testator s death. B LACK S L AW D ICTIONARY 42 (8th ed., 2004). This is referred to as ademption by extinction. Ademption by extinction results because of the doing of some act with regard to the subject-matter which interferes with the operation of the will. In re Estate of Hume, 984 S.W.2d at 604 (citing American Trust & Banking Co., 198 S.W. at 71). 6 By comparison the other type of ademption occurs when the testator, while alive, has already given something of value to the benef iciary in lieu of the le gacy. B LACK S L AW D ICTIONARY 42 (8 th ed. 2004). This is known as ademption by satisfaction. The doctrine of ademption by satisfaction refers to the situation in which the testator gives in his lifetime to a legatee what he had left him in his will. In re Estate of Hume, 984 S.W.2d at 604 (citing Rhodes v. Kebke, 6 It is a general rule that ademption by extinction is not a matter of intent and the refore evidence of a testator s purpose in effecting an extinction of a legacy is irreleva nt. Matter of Nakoneczny,319 A.2d 893, 323-324 (Pa.1974). In the case of In re Brann,114 N.E. 404 (N.Y. 1916), the New York Court of Appeals asserted that, while the law of ademption may once have been dependent upon intention, the courts now look to the fact of change and once that is ascertained does not trouble itself about the reason for the change. In re Brann, 114 N.E. at 405. Following this rule, in 1925 this Court held that ademption is to be sought for in the facts of destruction or loss of the thing specified in the legacy, or lo ss of its iden tity, rather than in change of intention on the part of the testator. Elwyn v. DeGa rmendia , 148 Md. 109, 112, 128 A. 913, 914 (1925) . Those case s, howev er, all involved the theory of ademption by extinction because the specific legacies were extinguished, lost, or destroyed. Accordingly, [t]he rule [of ademption by extinction] prevails without regard to the intention of the testator or the hards hip of the c ase, and is predicated upon the principle that the subject of the gift is annihilated or its condition so altered that nothing remains to which the terms of the bequest can apply. In re Estate of Hume, 984 S.W.2d at 604 (quoting Wiggins v. Cheatham, 255 S.W. 1040, 1041 (Tenn. 1920) (alteratio ns in orig inal)). 8 167 S.W.2d 3 45, 348 (Tenn. 19 43)). In the case before us there is no claim of adem ption by extinction. The question h ere is whether there was an ademption by satisfaction and whether it has occurred is most certainly a matter of testator intent. Murphy s Will Clauses § C1, 14-54 (Matthew Bender). Under the doctrine of adem ption by satisfac tion, the intent of the testator is re levant to determine whether the testator s ac tions regard ing the lega tee amou nts to a withdrawal of the gift from the operation of the will. In re Estate of Hume, 984 S.W.2d at 604. The law is established in this State that, when a testator in his lifetime pays to a legatee the amount of money given by the will, and s uch payme nt is intended to be in satisfaction of the legacy, the legacy is thereby adeemed. Rhein v. Wheltle, 206 Md. 1, 6, 109 A.2d 923, 925 (1954) (citing Gallagh er v. Mar tin, 102 Md. 115, 118, 62 A. 247 , 248 (1905)). Thus the question whether a legacy is adeemed by a gift made by a testator to a legatee after execution of the will depends upon the intention of the testator. Rhein, 206 Md at 6, 109 A.2d at 925. Therefore, if a testator intended that an inter vivos gift should abrogate the legacy, the legacy is adeeme d either in w hole or in pa rt; but if a testator intended that the legatee should receive both the testamentary gift and the inter vivos benef it, the lega cy is not ad eemed . Id. It is a general rule that where a testator is the parent of the legatee or in loco pare ntis, and after executing his will makes a gift to the same child, it will be presumed that the gift was intended to be in satisfaction of the legacy. Rhein, 206 Md . 6, 109 A.2d at 926. The legacy will be considered adeemed unless the presumption is reb utted. Id. This princip le 9 was founded upon the equitable presumption that a paren t, who has the natural o bligation to provide for his children, after executing a will establishing the portion of his estate that each child should receive, would not give one of his children a double portion of his estate to the detriment of the othe rs. Id. (citing Selby v. Fidelity Trust Co., 188 Md. 192, 51 A.2d 822 (1947); Wallace v . DuBois , 65 Md. 152, 159, 4 A . 402, 403 (1 886); Richardson v. Eveland, 18 N.E. 308 (Ill. 1888 ); Carmichael v. Lathrop, 66 N.W. 350 (Mich. 1896)). On the other hand, it is acce pted as a ge neral rule that where a testator is not the parent of the legatee or does not stand in loco pare ntis, it will be presumed that the subsequent gift did not adeem the lega cy by satisfa ction. Rhein, 206 Md. at 7, 109 A.2d at 926. In Associated Professors of Loyola College v. Dugan, we said: [T]hat if the be quest is f or a par ticular p urpose , a subseque nt gift to the legatee by the testator in his lifetime for the same purpose operates as a satisfaction of the legacy to the am ount of the gift. This statem ent of the ru le is subject to the qualification that the gift inter vivos must not be substantially different in kind from the legacy . . . . The rule we have stated is uniformly recognized and applied where the con ditions m ake it ap propria te. (Citatio ns omi tted.) Associated Professor s of Loyola College v. Dugan, 137 Md. 54 5, 550, 113 A. 81 , 83 (1921). In Colley v. Britton, we reaffirmed the law of ademption by satisfaction. We said: It is also establishe d law in this Sta te tha t when in his lifetim e a te stato r pays to a legatee the amount of money given by a will, and such payment is intended to be in satisfaction of the legacy, the legacy is thereby adeemed. The question of whether a legacy is adeemed by a gift mad e by a testator to the legatee afte r the will was executed depends upon the intention of the testator. Colley v. Britton, 210 Md. 237 , 246, 123 A.2d 2 96, 301 (1956) (em phasis in original). Petitioner argues that a subsequent writing is necessary to show a clear intention of 10 satisfaction. YIVO relies upon revisions to Maryland s law in 1968 concerning advance ments and intestate estates which resulted from the Governor s Commissio n to Review the Testamentary Law of Maryland ( The Henderson Commission ). The Henderson Com mission recom mend ed, and the M aryland C ode no w refle cts, that for an inter vivos gift to be treated as an advancement, there must be written evidence of such an in tent. 7 Petitioner posits that there is no reason to maintain standards for ademption of a legacy by satisfac tion that differ f rom tho se appl icable to advan cemen t of an in testate sh are. 8 In our view , principles go verning ad vancem ent and in testate shares do not help resolve the issues in this case. In the present case, the decedent did not die intestate, he died with a will. The laws of intestate succession concern disposition of property by operation 7 See Second Report of the Governor s Commission to Review and Revise the Testamentary Law of Maryland, Article 93, Decedent s Estates, at 36 (1968) ( The Commission has recommended that written evidence be required of the intent that an inter vivos gift be an a dvancem ent becau se most inter vivos transfers today are intended to be absolute gifts and are carefully integrated into a total estate plan. ); Md. Code, (2001), § 3106 of the Estates & Trusts Article. Subsection (a) of § 3-106 provides: If a person dies intestate as to part of his net estate, property which he gave in his lifetime to a n heir shall be treated as an advance ment against the share of the latter of the net estate if declared in writing by the deceden t or acknowledged in writing by the heir to be an advan cemen t. 8 An ad vancem ent, strictly speaking, applies only to intestate estates[.] Trustees of Baker University v. Trustees of the Endowment Association of Kansas State, 564 P.2d 472, 478 (Kan. 1977) (citations omitted). In Selby v. Fidelity Trust Co., 188 Md. 192, 197, 51 A.2d 822, 824 (1947), w e said: An advance ment, in lega l contemplation, is simply the giving, by anticipation, the whole or part of what it is supposed the child or party advanced would be entitled to receive on the death of the party making the advancement. 11 of law under circumstances where the decedent failed to declare his or her intentio n with regard to the disposition of his or her property at the time of death. The law of ademption by satisfaction, however, is concerned with the intention of the testator at the time the inter vivos gift wa s made . See Colley, 210 M d. at 246, 123 A.2d at 301. Second , petitioner s reliance upon the H enderson Comm ission Rep ort is of no a vail because that Commission did not recommend any changes to the common law of ademption by satisfaction. In fact, there is no mentio n of any discu ssion in the Report with regard to the general law of ademption.9 It is reasonable to infer from the Commission s recom mendatio ns about a dvancem ents to lineal descendants and its silence about ademption that it did not see a need to modify the comm on law of ade mption by satisfa ction. Petitioner next draw s from lan guage in Selby v. Fidelity Trust C o., 188 Md. 192, 199, 51 A.2d 822, 825 (1947), to suggest that a writing of the testator is required to show that an inter vivos gift is intended as a substitution for the legacy provided in the will. This was not our holding in Selby and no o ther reported decision of this Court h as interpreted Selby for that propo sition. See Colley, 210 Md. 237, 123 A.2 d 296; Rhein, 206 Md. 1, 109 A.2d 923. The issue in Selby was whether payments in the form of securities and cash to Fid elity Trust Company by the testator, during his lifetime and after execu tion of his will, adeemed 9 There is no indication that the Henderson Commission sought to recommend any change to the common law of ademption. The Com mission s report discussed a dvancem ents to minors an d its recommend ation requiring written eviden ce of a donor s intent to make an inter vivos gift limited to situations when the donor dies intestate. See Second Report of the Governor s Commission to Review and Revise the Testamentary Law of Maryland, Article 93, Decedent s E states, at 35-36 (1968). 12 a bequest in his will to the Trust Company. We held that the inter vivos transfers to the trust were ambulatory and revocable during the testator s lifetime and did not constitute an outright irrevoc able gif t to a third party. Selby, 188 Md at 202, 51 A.2d at 826. Hence, the transfers to the trust did n ot adeem the testamen tary trust established under M r. Selby s Will. In that case, the e vidence w as not suff icient to show that the testator s intention was to substitute the transfers in trust for the beque st unde r his will . Specifically, we said that the question of whether a gift is an advancement may turn on the provisions of a will, or on a writing of the testato r showing he intende d the adva ncemen t to be in substitution for the legacy provided in the will. Selby, 188 Md at 199, 51 A.2 d at 825 . We never said, in Selby, that a will or writing are the only methods of proving ademption by satisfaction. Furthermore, we pointed to several examples of situations where parol evidence was admissible to show that the testator intended an outright gift as a substitution for the bequest in a will. For example, we said that parol evidence is admissible on the question of whether a bequest was intended in payment of a debt owed the devisee by the testator . . . or to show that an advancement was to be applied to the specific purpose of a bequest in th e will to be used for the b uilding of a ch urch. Selby, 188 Md. at 202, 51 A.2d at 826 (citations omitted). In addition, petitioner contends we should adopt the view of 1 Restatement (Third) of the Law of Property (Wills and Other Donative Transfers) § 5.4 (1999) (hereinafter, Restatement ) and the Unifo rm Pro bate C ode § 2 -609 (a mend ed 199 0), 8 U .L.A. 179 (1998) 13 (hereinafter, UPC ). Sectio n 5.4 of the Restatement Ademption by Satisfaction provides: An inter vivos gift m ade b y a testator to a de visee or to a member of the devisee s family adeems the devise by satisfaction, in whole o r in part, if the testator indicated in a contemporaneous writing, or if the devisee acknowledged in writing, that the gift was so to operate. Under the Re vised U PC, § 2-609 Ademption by Satisfaction, the required evidence of intent can take one of three forms: (I) a statement in the will itself providing for deduction of the gift or any future gifts, (ii) a written statement of the testator in a contemporaneous writing indicating that the gift is in full or partial satisfaction of the devise, or (iii) a written statement of the devisee acknowledging that the gift is in full partial satisfaction of the devise.10 Maryland, however, has neither expressly adopted the Restatement § 5.4 nor the UPC . Both provisions require a writing to prove that an inter vivos gift operates as an ademption by satisfaction. We are not persuaded, however, to adopt either view. We are guided by the long-standing rule that the intention of the testator at the time of the inter vivos gift is the heart of adem ption b y satisfacti on. See Colley , 210 M d. 237, 123 A.2d 29 6; Rhein, 206 Md. 1, 109 A.2d 923; Wallace, 65 M d. 153, 4 A. 402 . 10 Eleven states have enacted the Revised UPC § 2-609 or some variation of it: Alaska, Arizona, Colorado, Hawaii, Michigan, Minnesota, Montana, New Mexico, North Dakota, South Dakota, and Utah. Twelve states enacted the original UPC ademption by satisfaction section (Original UPC § 2-612) or a close variation of it: Alabama, California, Florida, Idaho, Maine, Missouri, Nebraska, New Jersey, Oregon, South Carolina, Virginia, and Wisconsin. A few other states have enacted nonuniform legislation on ademption by satisfaction, but the majority of states have not developed specific statues addressing adem ption b y satisfacti on. M aryland is one su ch state. 14 The doctrine of ademptio n by satisfaction is an intent-ef fecting doctrine. The doctrine operates to prevent the legatee from receiving a double gift against the testator s wishes.11 The question is one wholly of intention, and the burden is upon those who assert that the inter vivos gift was intended to satisfy the legacy. See Colley, 210 Md at 246; 123 A.2d at 301. As noted above, there are, howev er, certain circumstances where the intent to adeem will be presumed. For example, in the case of a legacy to one towards whom the testator does not stand in loco pare ntis, the rule is that if the bequests are for a particular purpo se, a subsequent gift to the legatee by the testator in his lifetime for the same purpose operates as a satisfaction of the legacy to the amount of the gift. Loyola Colleg e, 137 Md. at 550, 113 A. at 83. The rule, however, is subject to the qualification that the inter vivos gift must not be substantially different in kind from the legacy. Id. Additionally, it is well established that if a testator has given a legacy in order to ac complish a certain purp ose, and he subseque ntly accomplishes that purpose himself, the legacy is p resum ed to be adeem ed. Rhein , 206 Md. at 7, 109 A.2d a t 926. 11 Comment (a) of the Restate ment sug gests that [i]deally, the testator would effect that intent by making the gift and revoking the devise . . . . The doctrine of ademption by satisfaction operates when the testa tor neg lected to revoke or partly re voke th e devis e. Unlike the Restatement and the UPC, we think the better policy is to not limit proof of the testator s intent only to written documentation. In our view, it is conceivable that a testator could effectuate his or her intent to adeem by satisfaction by making an inter vivos gift and neglect to either revoke the devise or to declare his or her intent to revoke in writing. Thus, the testator s intent to adeem could b e draw n, not only from what he or she wrote but also from w hat he o r she said or did. 15 In reaching its conclusion that Dr. Karski s lifetime gifts of $ 100,000 to YIV O were given to adeem the legacy of a pproxim ately $100,00 0, the Orph ans Cou rt first needed to determine the purpose o f the legacy in the will. The Court deemed it reasonable in assessing the purpose of the legacy to look to the facts surrounding it, the commitment Dr. Karski made to YIVO, and the Letter Agreement. In this context, the Court found, as a matter of fact, that the purpose of the legacy w as to fulfill or otherwise provide security for the commitment that Dr. Karski made to YIV O. Petitione r claims that the Orphan s Court erre d in this determination and that the Court of Spec ial Appeals erred in affirm ing the lower court s findings because n o specific purpose was attached to the bequest. We disagree. Despite the fact that no specific purpose is explicitly stated in Dr. Karski s Will, the Orphans Court was correct in its conclusion because it arrived at its findings after it considered th e beques t in the context of Dr. Karski s relationship with YIVO. Dr. Karski had no co ntinuing ch aritable relationship with Y IVO. We cannot say that the Orphans Court s factual determination that Dr. Karsk i s relationship with YIVO was limited to the terms of the Letter Agreement and that the bequest to YIVO was intended to secure the terms o f the Letter A greemen t in the event that he was unable to fund th e endow ment durin g his lifetime was clearly erroneous. We hold that the Orphans Court did not abuse its discretion in c oncluding , as it did, the p urpose of the le gacy. Once it was determ ined that the p urpose of the legacy w as security, the Orphans Court could properly find, based upon the evidence in the record, that the lifetime gifts had 16 a purpose identical to that of the le gacy. Dr. Ka rski gave th e lifetime gif ts to secure h is promise in the Letter A greemen t to provide a bequest o f $100,00 0 to YIV O. This finding of a same pu rpose ope rates as a satisf action of th e legacy, unless the lifetime gift was substantially different in kind . See Colley, 210 M d. 237, 244 , 123 A.2d . 296, 300; Loyola College, 137 Md. at 550 - 51, 113 A. at 83. Dr. Karski bequeathed shares of Northern States Power to YIVO. A t the time D r. Karski dra fted his w ill these shares w ere worth approxim ately $100,000. Dr. Karski s lifetime gift to YIVO consisted of shares of New York State Gas & Electric, shares of Ohio Edison, and cash in the amount of $2.31, thus bringing the total value of the gifts to $100,000. W hile the stock given to Y IVO during D r. Karski s life were shares from a different company than that na med in the will, we ag ree with the Orphans Court and the intermediate appellate cou rt that there was no evidence that the stock in the leg acy ha d any particular significance. Dr. Karski s own Letter Agreement referred to cash and/or marketable securities, evidencing that Dr. Karski treated the shares as equivalent to cash. The Orphans Co urt correctly found that Dr. Karski intended that the different comp any share s and th e cash w ere iden tical to on e anoth er. Thus, the shares w ere not substantially different in kind. Further, we find that the Orphans C ourt neither erred in its conc lusion n or abus ed its dis cretion. Having established that the inter vivos gifts to YIVO were the same in purpose and in kind as the b equest to YIVO in Dr. Karski s Will, the Orphans Court found a presumption of ademptio n. Where a presum ption of ad emption a rises it is one of fact and not of law and 17 may be rebutted by competent evidence. Truste es of Ba ker Un iversity, 564 P.2d at 480. Furthermore, [t]he question is one for the trier of facts. Id. The petition er did not offer any competent evidence to rebut the presumption of ademption and, absent such evidence, the Orphans Court was corr ect to find that it was Dr. Karski s intention to adeem the legacy with his lifetime gifts to YIVO. Accordingly, the bequest to YIVO was satisfied and, as such, YIVO is not entitled to an additional gift. It has been stated that, if a testator has given a legacy in ord er to accom plish a certain purpose, and if he subsequently accomplishes that purpose himself, the legacy is presumed to be adeemed, whether or not a presumption of ademptio n would have a risen oth erwise . Loyola College, 137 Md. at 550, 113 A. at 83. Such is the case here. We therefore hold that the Orphans Court was not clearly erroneous in its factual findings regarding a presumption of intention to adeem by satisfaction. Parol Evidence We next turn to petitioner s last claim of error with respect to the Orphans C ourt s ruling on the admission of the testimony of Dr. Hanna-Kaya Ploss, Executive Director of the American Center of Polish Culture and a friend of Dr. Karski s, regarding statements made by Dr. Karski in 1998 and the years preceding his death. Specifica lly, Dr. Ploss testified that, I don t know what w as in that will, bu t Dr. Karsk i was not a compulsive man who would pound on something ov er and over, but from tim e to time he said , You know , maybe I should change my will just in case the YIVO Institute wil come and ask once more for the mone y when I alrea dy have give n it to them, and then he always answered his own question, No. They are much too dec ent to do such [ a] thing . No. 18 *** He was abso lutely sure they will not come a second time and ask for the mone y when I ha ve already giv en it to them, th at is something that sticks in my mind, I have already given them the mo ney. We find that the court did not err in allowing the testimony. The intention of a testator as to w hether a gif t should adeem or satisfy a legacy may be shown by extrinsic or parol evidence, including [a testator s] conduct after the execution of the w ill. Trustees of Baker University , 564 P.2d at 481 (citing 96 C.J.S. Wills § 1178(5)(a) p.1012). The Kansas court noted in support of this contention that Page on Wills provides: In most cases testator s intention with reference to ademption does not appear upon the face of the will, and, if it does, it relates to the fu ture, and it is possible that a testator may change it. Accordingly, it is generally held that extrinsic evidence is admissible to show the intention which the testator had when he [or she ] made the payment in q uestion. Th is includes parol evidence of testator s decla rations, evide nce of the surround ing facts and circumstances from which his [or h er] intent may be inferred and e vidence of testator s condu ct. Trustees of Baker U niversity, 564 P.2d at 481 (citing 6 Page on Wills (Bowe-Parker Revision), Adem ption, § 54.27, p.283) . In recognizing this rule, we acknowledge that ordinarily the burden of proof as to the testator s intention falls on the party who claims that a payment operates as an ademption of a legacy. Trustees o f Baker U niversity, 564 P.2d at 481. Actual intention may be proven by competent evidence that a subsequent gift is to satisfy a legacy and such intention sho uld be enforc ed. Id. All relevant evidence is admissible to prove inte nt, subject to objections of 19 unfair prejudice, confusion, etc. Md. Rule 5-402. Under Md. Rule 5-803 (b)(3) a statement of intent, offered to prove the declarant s future action, is admissible as an exception to the hearsay rule. And the attorney-client privilege is not a bar to the admission of testimony by the lawyer-d raftsm an as to what th e client in tended in his w ill. Benzinger v. Hemler, 134 Md. 5 81, 107 A. 355 (1919 ). YIVO argues that the eviden ce should not have b een adm itted becaus e the stateme nts made by Dr. Karski to Dr. Ploss were made two years after the lifetime gifts were given to YIVO and, thus, were too far removed to be relevant. As the Kansas court recognized in Trustees of Baker U niversity, however, the better reasoned authorities allow evidence of declarations made long after the inter vivos payment ad missible for the purpose of showing a testator s intentio n in making a gift even if made subsequent to the gift, the matter of time merely going to the weight to be acc orded s uch ev idence rather th an its ad missibili ty. Trustees of Baker U niversity, 564 P.2d at 481 (citations omitted). Furthermore, YIVO offered n o case law to justify its position on this point. The Orphans Court found that the testimony was relevant and admissible. As extrinsic evidence is admissible for purposes of showing the testator s inte nt in ademptio n cases, w e affirm th e decision to admit Dr. Ploss s testim ony. JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED. PETITIONER TO PA Y COSTS. 20 21