Fletcher v. Ellenburg

• Decision Date: 21 February 2005
• Docket Number: No. S05A0396.,S05A0396.
• Citation: Fletcher v. Ellenburg, 279 Ga. 52, 609 S.E.2d 337 (Ga. 2005)
• Parties: FLETCHER v. ELLENBURG et al.
• Court: Georgia Supreme Court

609 S.E.2d 337

279 Ga. 52

FLETCHER v.ELLENBURG et al.

No. S05A0396.

Supreme Court of Georgia.

February 21, 2005.

Michael Curtis Pruett, Haygood & Pruett, Watkinsville, for Appellant.

Robert J. Grayson, Julie Deen Schneider, Edwards, Friedewald & Grayson, Marietta, for Appellee.THOMPSON, Justice.

In this case involving the construction of a will, the probate court determined that a specific devise of real property which was not owned at the time of death of testatrix is adeemed.We affirm.

In 1961 testatrix Mary M. Hyde acquired a tract of land adjacent to her parents' home.She built a one-story brick house on that property, known as 2383 DeFoors Ferry Road, Atlanta, Georgia ("DeFoors property").She rented the DeFoors property to others while she continued to live with her mother in the family home.In 1975 her mother passed away, leaving testatrix a life estate in the family home, where testatrix continued to reside.Also in 1975 testatrix executed a will devising the DeFoors property to her niece, appelleeMary Carol Fletcher.

In 1993 testatrix signed a contract to sell the DeFoors property to a developer.Three weeks later she purchased a lot with a one-story brick house at 3460 Pinetree Drive, Smyrna, Georgia ("Pinetree property"), for $90,000, but she continued to reside in her parents' home.The sale of the DeFoors property was not consummated until 1995, and testatrix realized approximately $92,000 from the transaction.At that time she moved into the Pinetree property.

In 1996 testatrix conveyed her partial interest in another piece of real property in Butts County to appelleeMary Carol Fletcher, although the property had been specifically devised in the 1975 will to Mary Carol's mother, with a remainder to Mary Carol and her siblings.

In 2002 testatrix executed a codicil to her will for the purpose of naming a different co-executor, and amending the residuary clause to delete her deceased siblings as beneficiaries.The original will contained the following residuary clause:

All the rest, residue and remainder of my estate, including specifically all cash, monies in savings accounts, and any stocks or bonds, I give, bequeath and divide equally, share and share alike, to FRANCES ELLENBURG, DOROTHY TUCKER, CAROLYN COOK, JACQUELYN LANDERS AND DALLAS G. HYDE, JR.

The codicil amended the residuary clause as follows:

I hereby amend Item Five of my Last Will and Testament to leave all the rest, residue and remainder of my estate, both real and personal, to my sistersFrances Ellenburg and Jacquelyn Landers in equal shares, per stirpes.If they are not in life, then my estate shall go to Mary Carol Fletcher and Manuel Gordon Cook, per stirpes.

The specific devise of the DeFoors home was not referenced in the codicil.

Testatrix died in 2003.AppellantRichard Fletcher, executor of her estate, petitioned the probate court for a declaratory judgment as to whether the DeFoors home was adeemed pursuant to OCGA § 53-4-66,¹ or whether the Pinetree property should be considered a substitute for the specific devise pursuant to OCGA § 53-4-67.²AppelleesFrances Ellenburg, Jacquelyn Landers, and Mary Carol Fletcher, all of whom are named as beneficiaries of the residuary of the estate, defended the action.

The probate court found that the DeFoors property was adeemed, that the Pinetree property did not qualify as a substitute for the DeFoors property, and that, therefore, the Pinetree property was to be considered part of the residuary and was to be divided according to the 2002 codicil.

1.Appellant alleges that the probate court erred in finding that a specific devise of the DeFoors property was adeemed pursuant to OCGA § 53-4-66, and in failing to conclude that a substitution should have been made pursuant to OCGA § 53-4-67(a).

"[I]f the will is otherwise silent, a specific devise is adeemed when, after the execution of said will, the testatrix `conveys' to another the specific property devised unless one of the following four exceptions applies: reacquisition by the testatrix, 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, 206(3), 259 S.E.2d 458(1979).The only question presented here is whether the Pinetree property should substitute for the DeFoors property devised in the 1975 will.

In Lang v. Vaughn,137 Ga. 671, 74 S.E. 270(1912), the testatrix bequeathed a specific parcel of real property to her niece.Testatrix subsequently sold the property and invested the proceeds in stock which she held at the time of her death.Id. at 672, 74 S.E. 270.The Court found no substitution and held that the devise was adeemed pursuant to the Code of 1910 §§ 3908 and 3909.³Id. at 679, 74 S.E. 270.Specifically, the Court noted, testatrix "did not exchange the property bequeathed for other property of like character.She sold real estate and invested a part of the proceeds in personalty....There are no words in the will giving to the legatee not only the realty but the proceeds of any sale of it."Id. at 680, 74 S.E. 270.

Following the reasoning in Lang, the Court in Woodall v. First Nat'l Bank,223 Ga. 688(3), 157 S.E.2d 261(1967) also found an ademption where testator conveyed a specific legacy after executing his will.Testator bequeathed certain stock to his wife.He subsequently sold the stock and invested the proceeds in certificates of deposit and other corporate stocks.Focusing on the required element of exchange, the Court declined to reach the question of whether the new stocks were of like character to the old."Rather, we regard as decisive the more basic fact that here there was no `exchange,' but a sale and subsequent purchases....Exchange is the giving of one thing for another; a transfer of property for property or some value other than money....Therefore, we hold that this was not the `exchange' of property bequeathed for other of like character, as contemplated by [the Code]."Id. at 695, 157 S.E.2d 261.

The cases in which this Court has found a substitution involve either a testamentary provision which contemplated conveyance of the gift and provided instructions for the proceeds, or a true exchange of property for property.In Chandler v. Owen,233 Ga. 25, 209 S.E.2d 618(1974), a valid substitution was found where the will specifically devised a particular parcel of real property, or the proceeds of its sale, to specific beneficiaries.Testatrix subsequently sold the property and invested the proceeds in a certificate of deposit which she owned until her death.As the Court noted, the specific gift in question was the economic benefit of the real property, as evidenced by the inclusion of the term "proceeds" in the language of the testamentary gift.Id. at 28, 209 S.E.2d 618.The Court distinguished several cases, including Lang and Woodall, in which substitutions were not found because the testamentary gifts in question did not explicitly include proceeds from the sale...