Woodall v. First Nat. Bank of Columbus

Decision Date05 October 1967
Docket NumberNo. 24254,24254
CitationWoodall v. First Nat. Bank of Columbus, 157 S.E.2d 261, 223 Ga. 688 (Ga. 1967)
PartiesJanette M. WOODALL et al. v. FIRST NATIONAL BANK OF COLUMBUS, Executor, et al.
CourtGeorgia Supreme Court

Syllabus by the Court

1.The legacy was a specific one.

2.The specific legacy was adeemed.

(a) Under the circumstances, the testator's intention in disposing of specifically bequeathed property may not be inquired into.

(b) The testator's sale of the property involved here was not the investment of a fund bequeathed.

(c) Nor was it an exchange of property for other of like character.

3.The exclusion from evidence of documents relating to the financial condition of the testator's estate was not error.

Bloch, Hall, Groover & Hawkins, Charles J. Bloch, Wilbur D. Owens, Jr., Macon, Foley, Chappell, Young, Hollis & Schloth, Bentley H. Chappell, William H. Young, III, Columbus, for appellants.

Kelly, Champion & Henson, Forrest L. Champion, Jr., Kenneth M. Henson, Columbus, Divine & Busbee, Albany, Jones, Sparks, Benton & Cork, Timothy K. Adams, Frank C. Jones, Macon, for appellees.

GRICE, Justice.

The basic issue for determination in this appeal is whether the testator's sale of certain property to a third party constituted an ademption of a portion of a legacy.This issue arose when the First National Bank of Columbus, as executor and trustee under the will of Allen M. Woodall, Sr., filed in the Superior Court of Muscogee County a petition for construction of the will in respect to several matters, including this issue of ademption.The petition named as defendants the testator's widow Mrs. Janette M. Woodall, his sons by a prior marriage Allen M. Woodall, Jr., and Whitfield S. Woodall, besides other parties not necessary to mention here.The sons in their answers asserted that the legacy had been adeemed as to the property sold, while the widow in her answer contended that it had not.By agreement, the case was submitted to the judge without a jury.He rendered a judgment which, among other provisions, declared that such portion of the legacy had been adeemed.

This issue involves Code§ 113-817, which is 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.'

It also involves Code§ 113-818, which provides: '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.'

The legacy in question consists of capital stock in four named corporations and an interest in a partnership, these entities owning and operating certain Howard Johnson restaurants.They will hereinafter be referred to as 'the Howard Johnson stocks and interests.'

This legacy was provided by Item VI of the will of Allen M. Woodall, Sr., which was executed on November 4, 1963.That item bequeathed and devised certain described real and personal property, including the Howard Johnson stocks and interests, to the First National Bank of Columbus, as trustee, for the use and benefit of the testator's wife, Janette M. Woodall, for and during her life for the purposes and in the manner therein set forth.

In addition, designated property was bequeathed to one son, a trust involving specified property was created for the benefit of the other son, and the residue of the estate was bequeathed and devised to these two sons, in equal shares.

Almost two years after making his will, the testator sold all of the Howard Johnson stocks and interests to a third person, not a legatee, devisee or heir at law of the testator, for $175,000 in cash.

The testator died approximately two months thereafter, without having become repossessed of such property, thus placing it outside the power of the executor to deliver this portion of the legacy to the trustee bank in accordance with Item VI of the will.No provision for this contingency is made in the will.

In her appeal from the trial court's judgment that the legacy had thus been adeemed insofar as the Howard Johnson stocks and interests are concerned, the widow made eighteen enumerations of error.These enumerations may be summarized and grouped as follows: (1) finding that the legacy for her benefit was a specific one; (2) finding that there had been an ademption of such legacy as to the Howard Johnson stocks and interests; (3) failing to find that what occurred was a change in the investment of a fund bequeathed instead of an ademption; (4) failing to find that what transpired was the exchange of property bequeathed for other of like character rather than an ademption; and (5) excluding from evidence certain documents relating to the financial condition of the testator's estate.

1.We must first determine whether the legacy in question is a specific legacy and hence one to which the principle of ademption applies.Only a specific legacy may be adeemed.SeeBailes v. Halsey, 179 Ga. 182, 185, 175 S.E. 472;57 Am.Jur. 1082, Wills, § 1582.

In this connection, Item VI of the will provides in material part as follows: 'I give, bequeath and devise * * * (other property); also all my capital stock (now being 25% of the total) in the following corporations: * * * (the Howard Johnson stocks and interests) * * * (other property) to the First National Bank of Columbus, Columbus, Georgia, a national banking association having trust powers, as trustee, for the use and benefit of my beloved wife, Janette M. Woodall, to hold in trust for and during the life of my said wife, unless said trust is terminated as hereinafter provided, for the purposes and in the manner hereinafter set forth * * *.'

Various types of legacies are recognized in this State.Our Code, by § 113-808, declares that '(l)egacies may be either general or specific.A specific legacy is one which operates on property particularly designated.A gift of money to be paid from a specified fund is nevertheless a general legacy.''A demonstrative legacy is one which designates the fund or property from which it is to be satisfied but is nevertheless an unconditional gift to the legatee of the amount or value specified.'Owens v. Citizens' & Southern National Bank, 177 Ga. 289, 295-296, 170 S.E. 196, 200.A residuary legacy 'is a general legacy into which fall all the assets of the estate after the satisfaction of all other legacies and the payment of all debts of the estate and all costs of administration.'1 Wills and Administration in Georgia, Redfearn, § 153 (3d Ed.).

A consideration of the types of legacies in the light of the facts here requires the conclusion that this legacy is a specific one.It comports with what this court quoted approvingly in Young v. Young, 202 Ga. 694, 701, 44 S.E.2d 659, 664: "A specific legacy is one that can be separated from the body of the estate and pointed out so as to individualize it, and enable it to be delivered to the legatee as a thing sui juris.The testator fixes upon it, as it were, a label, by which it may be identified and marked for delivery to the owner, and the title to it, as a separable thing, vests at once, on the death of the testator, in the legatee."

The fact that Item VI provided that the legal title to this particular property was to be held by a trustee for the benefit of the widow does not prevent the legacy from being a specific one.It is the particular designation of the property itself, not who holds its legal title, which makes the legacy specific.

2.Whether there was an ademption of this specific legacy is another matter.

In determining this we are concerned with the following portion of Code § 113-817, supra: 'A legacy is adeemed or destroyed, wholly or in part * * * 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.'(Emphasis supplied.)It should be pointed out that here the testator did not afterward become possessed of the property bequeathed and that the conveyance did not fail.

In deciding whether there was an ademption as to the Howard Johnson stocks and interests, three questions are presented.

(a) The first question is: Under the circumstances here, when a testator conveys to a third person the specific property devised and the will contains no provision for such...

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8 cases
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  • Powell v. Thorsen
    • United States
    • Georgia Supreme Court
    • November 6, 1984
    ...... [a specific devise] a label, by which it may be identified and marked for delivery to the owner...." Woodall v. First National Bank, 223 Ga. 688, 691, 157 S.E.2d 261 (1967). The devise of real estate known as "Brown Buggy" was specific for the additional reason that "all devises of land......
  • Fletcher v. Ellenburg
    • United States
    • Georgia Supreme Court
    • February 21, 2005
    ...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 cert......
  • Peacock v. Owens
    • United States
    • Georgia Supreme Court
    • September 10, 1979
    ...Although it is correct that only a specific devise is vulnerable to the doctrine of ademption, Woodall v. First Nat. Bank of Columbus, 223 Ga. 688, 690, 157 S.E.2d 261 (1967), we disagree with appellant and hold the devise in this case to be specific. Code Ann. § 113-808 defines a specific ......
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