2020 Georgia Code
Title 53 - Wills, Trusts, and Administration of Estates
Chapter 4 - Wills
Article 6 - Construction of Will; Testamentary Gifts
§ 53-4-66. Ademption or Destruction of Specific Testamentary Gift

Except as provided in Code Section 53-4-67, a specific testamentary gift is adeemed or destroyed, wholly or in part, when the testator for any reason does not own the subject of such gift at death.

(Code 1981, §53-4-66, enacted by Ga. L. 1996, p. 504, § 10.)

- For article, "The Time Gap in Wills: Shifting Assets and Shrinking Estates - Obsolescence and Testamentary Planning in Georgia," see 6 Ga. L. Rev. 649 (1972).

This section carries over provisions of former OCGA Sec. 53-2-105, clarifying that a specific testamentary gift is adeemed by extinction when, for any reason, the testator does not own the property that is the subject of the gift at death. For new provisions relating to ademption by satisfaction and to advancements of demonstrative, general, and residuary gifts, see Code Sec. 53-1-10.

ANALYSIS

• General Consideration
• Ademption Rule
• Exceptions

General Consideration

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Civil Code 1910, § 3908, former Code 1933, § 113-817, and former O.C.G.A. § 53-2-105 are included in the annotations for this Code section.

Ademption is confined to specific legacies. Kramer v. Kramer, 201 F. 248 (5th Cir. 1912), cert. denied, 231 U.S. 753, 34 S. Ct. 322, 58 L. Ed. 467 (1913) (decided under former Civil Code 1910, § 3908); Woodall v. First Nat'l Bank, 223 Ga. 688, 157 S.E.2d 261 (1967);(decided under former Code 1933, § 113-817).

Legacy is not a specific legacy, which will be adeemed when it does not bequeath a bond so labeled and sequestered as to be distinguished from another bond of a similar kind; it is a demonstrative legacy and does not fail if the subject matter is not in existence on the death of the testator. Young v. Young, 202 Ga. 694, 44 S.E.2d 659 (1947) (decided under former Code 1933, § 113-817).

When a will may reasonably be construed as showing an intention of the testator to bequeath to the six legatees something of the value of $1,000.00 each, and only three bonds remain, the will stating the $1,000.00 payments to be made from bonds, a fair and just execution of the will, as found by the trial court, would be to sell the three bonds and place the proceeds in the general assets and from that fund pay the six legatees $1,000.00 each. Young v. Young, 202 Ga. 694, 44 S.E.2d 659 (1947) (decided under former Code 1933, § 113-817).

Failure by the testator to particularize the $1,000.00 bonds bequeathed to stated children, forbid their being classified as specific legacies, and, consequently they do not fail but are payable as general legacies, $1,000.00 to each legatee, out of the general assets of the estate, including the proceeds from the sale of the three bonds on hand after the payment of debts, if any, and the expenses of administration. Young v. Young, 202 Ga. 694, 44 S.E.2d 659 (1947) (decided under former Code 1933, § 113-817).

Cited in Beall v. Blake, 16 Ga. 119 (1854); Weems v. Andrews, 22 Ga. 43 (1857); Clayton v. Akin, 38 Ga. 320, 95 Am. Dec. 393 (1868); Worrill v. Gill, 46 Ga. 482 (1872); Reed v. Reed, 68 Ga. 589 (1882); Hart v. Johnson, 81 Ga. 734, 8 S.E. 73 (1888); Elliott v. Johnson, 178 Ga. 384, 173 S.E. 399 (1934); Roberts v. Wilson, 200 Ga. 201, 36 S.E.2d 758 (1946); Thompson v. Mathews, 226 Ga. 347, 174 S.E.2d 916 (1970); Chandler v. Owen, 233 Ga. 25, 209 S.E.2d 618 (1974); Howard v. Estate of Howard, 249 Ga. App. 287, 548 S.E.2d 48 (2001); Harbin v. Harbin, 261 Ga. App. 244, 582 S.E.2d 131 (2003).

Ademption Rule

Meaning of ademption.

- 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. Kramer v. Kramer, 201 F. 248 (5th Cir. 1912), cert. denied, 231 U.S. 753, 34 S. Ct. 322, 58 L. Ed. 467 (1913) (decided under former Civil Code 1910, § 3908).

Ademption is effected by the extinction of the thing or fund bequeathed, or by disposition of it subsequent to the will from which an intention that the legacy should fail is presumed. Kramer v. Kramer, 201 F. 248 (5th Cir. 1912), cert. denied, 231 U.S. 753, 34 S. Ct. 322, 58 L. Ed. 467 (1913) (decided under former Civil Code 1910, § 3908).

Term "ademption" is sometimes used as synonymous with satisfaction, but such use is inaccurate, as ademption operates independently of intention in case the specific thing given is, at the testator's death, no longer owned by the testator. Kramer v. Kramer, 201 F. 248 (5th Cir. 1912), cert. denied, 231 U.S. 753, 34 S. Ct. 322, 58 L. Ed. 467 (1913) (decided under former Civil Code 1910, § 3908).

- When a testator conveys to another specific property devised or bequeathed, and does not afterward become possessed of the property, and the will contains no provision for such contingency, the devise or legacy is adeemed, and such legal result cannot be obviated by extrinsic evidence tending to show that the testator did not intend it. Thompson v. Long, 202 Ga. 718, 44 S.E.2d 651 (1947) (decided under former Code 1933, § 113-817).

Standard for defining a "conveyance" is whether there has occurred a change in the testator's ownership sufficiently radical to manifest, as a matter of law, the testator's intention to revoke the specific devise. The term "conveyance" includes a single transaction by which a testator sells the testator's fee simple title to real estate in return for a security title to the real estate sold. Peacock v. Owens, 244 Ga. 203, 259 S.E.2d 458 (1979) (decided under former Code 1933, § 113-817).

Ademption arises upon the conveyance of the specific property covered by the legacy, and rests upon a rule of law independent of any supposed actual intent of the testator; and in the absence of any facts which would bring the case within the exceptions set forth in statute, and in the absence of any provision in the will in contemplation of such a contingency, a trial court properly held that a devise had been wholly adeemed by reason of the conveyance of the realty involved, and since the testator died intestate as to this devise, that the proceeds thereof passed into the residuum of the estate. Thompson v. Long, 202 Ga. 718, 44 S.E.2d 651 (1947) (decided under former Code 1933, § 113-817).

- When a testator conveys to another specific property devised or bequeathed, and does not afterwards become possessed of the property, and the will contains no provision for such contingency, the devise or legacy is adeemed, and such legal result cannot be obviated by extrinsic evidence tending to show that the testator did not intend it. Moncrief v. Shuman, 169 Ga. 217, 150 S.E. 98 (1929) (decided under former Civil Code 1910, § 3908).

When a testator conveys to a third party specific property devised and the will contains no provision for such a contingency, there can be no inquiry into a testator's intention in adeeming specifically bequeathed property. Woodall v. First Nat'l Bank, 223 Ga. 688, 157 S.E.2d 261 (1967) (decided under former Code 1933, § 113-817).

Although a testator failed to form a limited partnership prior to the testator's death, such that a devise of member certificates was without effect and was adeemed, the business property that was devised to beneficiaries was not limited to that entity. Simmons v. England, 323 Ga. App. 251, 746 S.E.2d 862 (2013).

- When wife devised one-half interest in real estate to husband by specific devise, but did not devise the proceeds of its sale to husband, the specific devise was adeemed by alienation when testator sold the fee simple title in return for a down payment, note, and security title. Powell v. Thorsen, 253 Ga. 572, 322 S.E.2d 261 (1984) (decided under former O.C.G.A. § 53-2-105).

- Because the purchase of a second property closed over a year before the sale of the bequeathed property closed and the testator executed a valid codicil after the sale that did not mention either property, the bequeathed property was adeemed pursuant to O.C.G.A. § 53-4-66; consequently, there was no basis for substitution under O.C.G.A. § 53-4-67(a). Fletcher v. Ellenburg, 279 Ga. 52, 609 S.E.2d 337 (2005).

Exceptions

Exceptions to ademption rule.

- There are four exceptions to the rule that ademption occurs when a testator conveys to another the specific property bequeathed, those exceptions are: (1) where the testator afterwards becomes possessed of the same property; (2) where the attempt to convey fails; (3) where the testator exchanges the property for other of like character; and (4) where the testator merely changes the investment of a fund bequeathed. Lang v. Vaughn, 137 Ga. 671, 74 S.E. 270, 40 L.R.A. (n.s.) 542, 1913B Ann. Cas. 52 (1912) (decided under former Code 1933, § 113-817) Woodall v. First Nat'l Bank, 223 Ga. 688, 157 S.E.2d 261 (1967);(decided under former Code 1933, § 113-817).

A specific devise is adeemed when, after the execution of the will, the testator "conveys" to another the specific property devised unless one of the following four exceptions applies: reacquisition by the testator; failure of the conveyance; receipt of like property in exchange for the devised property, and mere change in the investment of a fund. Peacock v. Owens, 244 Ga. 203, 259 S.E.2d 458 (1979) (decided under former Code 1933, § 113-817).

RESEARCH REFERENCES

Am. Jur. 2d.

- 80 Am. Jur. 2d, Wills, §§ 1458, 1460, 1482.

Self-Dealing by Trustee, 38 POF3d 279.

Fiduciary's Breach of Investment Duties, 1 POF2d 467.

- 97 C.J.S., Wills, § 1742 et seq.

- What amounts to an ademption or abatement of a legacy of a business or professional practice, 13 A.L.R. 173; 16 A.L.R.2d 1404.

Ademption of bequest of chattel by change in form, 40 A.L.R. 558.

What is included in terms "notes," "securities," etc., in a bequest, 52 A.L.R. 1097.

Ademption or failure of substituted gift made by codicil or later will as preventing revocation, or effecting revival, of original gift to the same legatee or devisee, 59 A.L.R. 1106.

Change from absolute ownership of real property to mortgage interest by way of security, or vice versa, as ademption or revocation of legacy or devise, 65 A.L.R. 632.

Option given by testator before or after execution of will as ademption of specific legacy or devise, 79 A.L.R. 268; 155 A.L.R. 571.

Interest or estate remaining in testator after conveyance or transfer of less than his entire interest or estate in property as passing under previously executed will covering property in question, 117 A.L.R. 1380.

Duty and liability of executor (or administrator with will annexed) in respect of personal property specifically bequeathed, and not needed for payment of debts, 127 A.L.R. 1071.

Burden of debts and cost of administration as between residuary legatees, and heirs or next of kin who take lapsed, adeemed, or invalid legacies, 144 A.L.R. 476.

Doctrine of election as applicable where testator after the execution of the will transferred to one beneficiary the subject of a specific devise or bequest to another, 147 A.L.R. 735.

Devise of undivided interest as affected by partition of tract subsequent to execution of will, 162 A.L.R. 146.

Construction and effect of general legacy conditional upon ademption of specific legacy or devise to legatee, 2 A.L.R.2d 819.

Right of general legatee of stocks, bonds, or other securities, where testator owns at time of death none such as are described in will or less than bequeathed, 22 A.L.R.2d 457.

Satisfaction or ademption of general legacy by inter vivos gift, transfer, or payment to the legatee or another, 26 A.L.R.2d 9.

Right of beneficiary as against estate of insured who borrowed on the policy, 31 A.L.R.2d 979.

Disposition of proceeds of insurance on property specifically bequeathed or devised, 35 A.L.R.2d 1056.

Ademption or revocation of specific devise or bequest by guardian, committee, or conservator of mentally or physically incompetent testator, 51 A.L.R.2d 770.

Codicil as reviving adeemed or satisfied bequest or devise, 58 A.L.R.2d 1072.

What amounts to ademption to specific legacy of corporate stock or other corporate securities, 61 A.L.R.2d 449.

Conclusiveness of testator's statement as to amount of debt or advancement to be charged against legacy or devise, 98 A.L.R.2d 273.

Ademption of bequest of proceeds of property, 45 A.L.R.3d 10.

Change in stock or corporate structure, or split or substitution of stock of corporation, as affecting bequest of stock, 46 A.L.R.3d 7.

Ademption of legacy of business or interest therein, 65 A.L.R.3d 541.

Disposition of insurance proceeds of personal property specifically bequeathed or devised, 82 A.L.R.3d 1261.

Liability for wrongful autopsy, 18 A.L.R.4th 858.

Ademption of bequest of debt or balance on debt, 25 A.L.R.4th 88.

Proper disposition under will providing for allocation of express percentages or proportions amounting to more or less than whole of residuary estate, 35 A.L.R.4th 788.

Ademption or revocation of specific devise or bequest by guardian, committee, conservator, or trustee of mentally or physically incompetent testator, 84 A.L.R.4th 462.