Chandler v. Owen

• Decision Date: 08 October 1974
• Docket Number: No. 29181,29181
• Citation: Chandler v. Owen, 209 S.E.2d 618, 233 Ga. 25 (Ga. 1974)
• Parties: F. C. CHANDLER v. Winston OWEN et al.
• Court: Georgia Supreme Court

Page 618

209 S.E.2d 618

233 Ga. 25

F. C. CHANDLER v.Winston OWEN et al.

No. 29181.

Supreme Court of Georgia.

Oct. 8, 1974.

McClure, Ramsay & Struble, John A. Dickerson, Toccoa, for appellants.

Gross, Stowe & Shepherd, Millard B. Shepherd, Jr., Toccoa, Linton K. Crawford, Cornelia, for appellees.

Syllabus Opinion by the Court

HALL, Justice.

In a suit by Maude Walker Graham('plaintiff'), long-term nurse and housekeeper to Mrs. Franklin ('testatrix') against Mrs. Franklin's executors to recover out of the estate on an alleged contract with Mrs. Franklin for plaintiff's services, F. C. Chandler intervened as next friend of two of Mrs. Franklin's nieces, legatees under her will.The intervention was grounded in Chandler's assertion that if plaintiff recovered on her claim there would be nothing left in the estate for the nieces.Plaintiff moved for summary judgment against Chandler on grounds that the legacy to the nieces had been adeemed by extinction, and therefore they had no interest in her suit against the executors.The motion was granted; the trial court found as a matter of law that ademption had occurred; and Chandler appeals.No one doubts that we have here a specific legacy to which, and only to which the doctrine of ademption can apply.Woodall v. First Nat. Bank, 223 Ga. 688, 690, 157 S.E.2d 261.However, we reverse, ruling that ademption has not occurred, and therefore a ground for Chandler's intervention exists.The merits of plaintiff's suit against the estate are, of course, not involved here.

The legacy in question is contained in Items 3 and 4 of the will, as follows:

'Item . . . Three

'After my death it is my Will and request and I do so hereby direct that the property described as:

My house and lot fronting 60 feet on Savannah Street, in the City of Toccoa, Georgia, being #119 Savannah Street, and known as the Mrs. Rollo Franklin dwelling . . .

be sold by my Executors at private sale and subject to approval of the Ordinary of Stephens County, Georgia.My Will authorizing a private sale is because I do not want any of my property sold in front of the Courthouse door.

'Item . . . Four

'It is my Will that the money received from the sale of the house and lot above described be invested in U.S. Government Bonds then to be equally divided between my two great nieces, to-wit: Laura Jean Ramsay and Laura Ann Chandler.If Laura Jean Ramsay is not living at the time of my death then her part to go to her sister, Ellen Ramsay.Should Laura Ann Chandler not be living at the time of my death then her part is to go her sister, Heather Chandler.It is also my Will that these bonds and the funds received from them be used for their education.'

The ademption is claimed to flow from the fact that a few months prior to her death, and less than a year after making the will, Mrs. Franklin sold the house and lot for some $15,000, placed these funds in a checking account, added to them some $2,000 from other sources, and with this total purchased a bank certificate of deposit which remained among her assets at her death.Plaintiff's uncontradicted affidavit set forth these facts.

The statutes pertinent to the question are Code Ann. §§ 113-817and113-818: '113-817.(3908) Ademption or destruction of legacy.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.113-818.(3909) Substitution.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.'

See generallyRedfearn on Wills, § 155 (3d Ed.).Plaintiff contends that Mrs. Franklin's selling the property and putting the proceeds into some medium other than government bonds constituted an ademption, and that none of the four exemptions applies, the exceptions being (1) reacquisition of the property, (2) failure of the conveyance, (3) exchange of the property for other property of like character, and (4) change in the investment of a fund bequeathed.

We note initially that the legacy here refers to real property and to the proceeds from its sale.Therefore, we do not have the situation presented by Woodall v. First Nat. Bank, 223 Ga. 688, 157 S.E.2d 261supra;Thompson v. Long, 202 Ga. 718, 44 S.E.2d 651;Moncrief v. Shuman, 169 Ga. 217, 150 S.E. 98, andLang v. Vaughn, 137 Ga. 671, 74 S.E. 270, 40 L.R.A.N.S. 542, Ann.Cas.1913B 52, in all of which ademption was held to have occurred when after making the will the testator disposed of the property; because in those four cases the will made no bequest of proceeds but contemplated only the specific item itself.As the court said in Lang(p. 680, 74 S.E. p. 274)'There are no words in the will giving to the legatee, not only the realty, but the proceeds of any sale of it.'Therefore, these cases are not authority for our decision.

The subject of ademption of legacies by extinction where proceeds are bequeathed has not been much illuminated by judicial decisions in Georgia.Overviews of precedent in other jurisdictions show conflicting approaches.'In some jurisdictions the courts have held that bequests or legacies of or from the proceeds of property, whether real estate or personalty, are not adeemed by a disposition of the property by the testator, or someone acting for him, during his lifetime, and subsequent receipt of, and dealings with, such proceeds, where the proceeds may be traced and identified among the assets of the testator's estate. . . .In other jurisdictions the courts have held that bequests of or from the proceeds of property are adeemed where the testator has disposed of the property and dealt with the proceeds, or retained them prior to his death.This result is sometimes justified in the cases by the circumstances that the bequests were not of proceeds to arise from a disposition of the property by the testator during his lifetime, but were bequests of or from proceeds of sales or dispositions intended by the testator to be made by his fiduciaries...