December 13, 2010 § 2 Comments

Ademption occurs when the testator leaves a specific devise or bequest that can not be satisfied because the testator disposed of the property during her lifetime.

The case of Rousseau v. Rousseau, 910 So.2d 1214, 1218 (Miss. App. 2005), upheld a chancellor’s finding that the testator’s bequest of specific shares of stock to a trust had been adeemed by extinction where the testator sold the shares during his lifetime and did not change the will.

If the testator disposes of the devised or bequeathed property and acquires property that is of the same kind and description of the disposed-of property and whch he owns at his death, the disposition of the second property should be the same as that of the first, unless the will provides otherwise.  In Milton v. Milton, 10 So.2d 175, 177 (Miss. 1942), the testator devised “my home place” to his widow for life, with the remainder to his daughter.  After he made the will, he sold the residence he had at the time of making the will and acquired another.  The Mississippi Supreme Court held that his use of the phrase “my home place” was general enough to embrace any residence he owned at the time of his death, so that the devise was not adeemed.     

In Re Estate of Pickett, 879 So.2d 421 (Miss. App. 2004), was a case in which the testator had devised 181 acres of land to specific legatees, the Van Ettens.  After execution of the will, and during the testator’s lifetime, his attorney in fact had entered into contract for sale of the land to Kirkland.  Before the contract could be carried out, however, the testator died.  The court of appeals upheld the chancellor’s decision that the contract acted as an ademption of the specific devise which extinguished the claim of the Van Ettens.  The execution of the contract essentially converted the real property into a right of the estate to receive the proceeds.  Although there was no Mississippi case law directly on point to guide the chancellor, the court of appeals upheld her decision based on analysis of other authorities.  The court stated:

“In the absence of any statutory enactment by the Mississippi Legislature altering what appears to be a widely-recognized rule of will interpretation under the common law, we are convinced that the chancellor was correct and that the general rule set out above must be applied to this case.

¶ 25. The contract of sale gave to Kirkland the absolute right to purchase the real property. Under the rule of construction discussed above, the execution of that contract worked as an ademption of the specific devise of that same property to the Van Ettens. In that circumstance, the Van Ettens have no claim to the real property or to the proceeds ultimately realized when the sale of the land was closed pursuant to the contract of sale.”  (at 473). 

The decision includes an interesting discussion of the authority relied on by the chancellor.  (at 472-473).

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