Opinion
15973.
OCTOBER 14, 1947.
Construction of will. Before Judge Andrews. Fulton Superior Court. July 21, 1947.
William S. Shelfer, for plaintiff in error.
T. J. Lewis and Paul Crutchfield, contra.
"Where a testator conveys to another specific property devised or bequeathed, and does not afterward become possessed of the same, and the will contains no provision for such contingency, the devise or legacy is adeemed, and such legal result can not be obviated by extrinsic evidence tending to show that the testator did not intend it."
No. 15973. OCTOBER 14, 1947.
STATEMENT OF FACTS BY JENKINS, CHIEF JUSTICE.
The administrator cum testamento annexo of the estate of Mrs. Belle Loeffler brought a petition in Fulton Superior Court alleging certain facts as hereinafter set forth, and prayed direction of the court. Answers were filed and interventions allowed, and after a hearing on an agreed statement of facts the trial court entered the following order: "It having been agreed by all the parties that the above-stated cause be tried by the court without a jury at the return term, and said case coming on to be heard, and it appearing to the court that Mrs. Belle Loeffler executed her last will and testament on July 16, 1943, and that in one clause of said will said testatrix bequeathed to Walter Eugene Thompson, her nephew, her home, being house and lot, together with all household furnishings and fixtures located at 687 Plum St., N.W., Atlanta, Ga., and it further appearing to the court that after the execution of said will said testatrix sold and conveyed title by warranty deed to said house and lot described as 687 Plum St., N.W., to the Georgia School of Technology, and it further appearing to the court that a check for the sum of $4977.77 was delivered to said testatrix in payment of the purchase-price of said property, and that said check was in her possession at the time of her death, it is decreed by the court that the devise of the testatrix's house and lot located at 687 Plum St., N.W., was adeemed and wholly destroyed by reason of the testatrix's sale thereof, and it is further decreed by the court that said sum of $4977.77, proceeds from the sale of said property, passes into the residuum of the estate of Mrs. Belle Loeffler. It is further decreed by the court that there is an intestacy as to said sum of $4977.77, the same being the proceeds from the sale of said house and lot, and that said proceeds be distributed as provided by law in such cases." Exceptions are to this order.
The Code, § 113-817, sets forth the conditions under which a legacy is as a matter of law held to be adeemed as follows: "A legacy is adeemed or destroyed, wholly or in part, whenever the testator delivers over the property or pays the money bequeathed to the legatee, either expressly or by implication, in lieu of the legacy given; or when the testator conveys to another the specific property bequeathed, and does not afterward become possessed of the same, or otherwise places it out of the power of the executor to deliver over the legacy. If the testator attempts to convey and fails for any cause, the legacy is still valid." The Code, § 113-818, provides further, however: "If the testator exchanges the property bequeathed for other of the like character, or merely changes the investment of a fund bequeathed, the law deems the intention to be to substitute the one for the other, and the legacy shall not fail." This court in construing the above provisions of the Code has held as follows: "Where a testator conveys to another specific property devised or bequeathed, and does not afterward become possessed of the same, and the will contains no provision for such contingency, the devise or legacy is adeemed, and such legal result can not be obviated by extrinsic evidence tending to show that the testator did not intend it." Lang v. Vaughn, 137 Ga. 671 ( 74 S.E. 270, 40 L.R.A. (N.S.) 542, Ann. Cas. 1913B, 52); Moncrief v. Shuman, 169 Ga. 217 ( 150 S.E. 98); Redfearn's Wills and Administration of Estates (Revised Ed.), 239, § 146; 69 C. J. 1004, § 2203. Under the foregoing rules of the Code and the authorities above cited, the fact of ademption arose on the conveyance of the specific property covered by the legacy, and rests upon a rule of law independently 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 the Code, § 113-118, supra, and in the absence of any provision in the will in contemplation of such a contingency, the trial court properly held that the instant devise had been wholly adeemed by reason of the conveyance of such realty, and since the testatrix died intestate as to this devise, that the proceeds thereof passed into the residuum of said estate.
Judgment affirmed. All the Justices concur, except Wyatt, J., who took no part in the consideration or decision of this case.