(Code 1981, §53-1-10, enacted by Ga. L. 1996, p. 504, § 10.)
Law reviews.- For article, "The Time Gap in Wills: Shifting Assets and Shrinking Estates - Obsolescence and Testamentary Planning in Georgia," see 6 Ga. L. Rev. 649 (1972). For article discussing concept of advancements, see 10 Ga. L. Rev. 447 (1976). For annual survey of law of wills, trusts, guardianships, and fiduciary administration, see 56 Mercer L. Rev. 457 (2004). For annual survey of wills, trusts, guardianships, and fiduciary administration, see 57 Mercer L. Rev. 403 (2005).
COMMENTThis section replaces former OCGA Secs. 53-4-50 and 53-4-53 and portions of former OCGA Sec. 53-2-105. The section combines the treatment of lifetime transfers in both intestate and testate estates. This section clarifies that a lifetime transfer may be a satisfaction if the property transferred was the subject of a specific testamentary gift or that such a transfer may be an advancement if it represents some or all of the recipient's prospective intestate share or of a demonstrative, general, or residuary testamentary gift. (See Code Sec. 53-4-59 for a description of specific, demonstrative, general, and residuary testamentary gifts.)
This section modifies the former laws of satisfaction and advancements by requiring written evidence that an inter-vivos transfer was intended to operate as a satisfaction or an advancement against the testamentary gift or intestate share the recipient would eventually receive. The section requires either that the will specifically contemplate the treatment of the lifetime transfer as a satisfaction or advancement or a separate written expression or acknowledgement of intent. The writing may either be one signed by the transferor within 30 days of the transfer or one signed by the recipient at any time.
JUDICIAL DECISIONSANALYSIS
General Consideration
Editor's notes.
- In light of the similarity of the statutory provisions, decisions under former Code 1868, § 2539, former Code 1873, § 2580, former Civil Code 1895, § 3475, former Civil Code 1910, §§ 3908, 4052, and 4053, former Code 1933, §§ 113-817 and 113-1013, and former O.C.G.A. §§ 53-2-105 and53-4-50 are included in the annotations for this Code section.
Ademption is confined to specific legacies. Kramer v. Kramer, 201 F. 248 (5th Cir. 1912), cert. denied, 231 U.S. 753, 34 S. Ct. 322, 58 L. Ed. 467 (1913); Woodall v. First Nat'l Bank, 223 Ga. 688, 157 S.E.2d 261 (1967).
Legacy is not a specific legacy, which will be adeemed when it does not bequeath a bond so labeled and sequestered as to be distinguished from another bond of a similar kind; it is a demonstrative legacy and does not fail if the subject matter is not in existence on the death of the testator. Young v. Young, 202 Ga. 694, 44 S.E.2d 659 (1947).
When a will may reasonably be construed as showing an intention of the testator to bequeath to the six legatees something of the value of $1,000.00 each, and only three bonds remain, the will stating the $1,000.00 payments to be made from bonds, a fair and just execution of the will, as found by the trial court, would be to sell the three bonds and place the proceeds in the general assets and from that fund pay the six legatees $1,000.00 each. Young v. Young, 202 Ga. 694, 44 S.E.2d 659 (1947).
Failure by the testator to particularize the $1,000.00 bonds bequeathed to stated children, forbid their being classified as specific legacies, and, consequently they do not fail but are payable as general legacies, $1,000.00 to each legatee, out of the general assets of the estate, including the proceeds from the sale of the three bonds on hand after the payment of debts, if any, and the expenses of administration. Young v. Young, 202 Ga. 694, 44 S.E.2d 659 (1947).
Determination if transfer is an advance on inheritance.
- Summary judgment, pursuant to O.C.G.A. § 9-11-56, was reversed since a genuine issue of material fact remained as to whether a transfer of money to the decedent's child before the decedent died was an advancement on the child's inheritance, and whether the child breached the fiduciary duty as a result. Walters v. Stewart, 263 Ga. App. 475, 588 S.E.2d 248 (2003).
In cases of intestacy, law favors equal distribution among intestate's heirs. There are only two ways by which the scheme of equality among the heirs may be upset. The first, of course, is by the making of a will on the part of the ancestor providing for a distribution of the ancestor's estate in a manner other than that set forth by law; and, the second is by a valid and binding contract executed between the ancestor and the heir, which clearly shows a meeting of the minds between them acknowledging on the part of the heir receipt in full for the heir's prospective share of the ancestor's estate. Such a contract when entered into is binding and enforceable. Cassedy v. Bland, 99 Ga. App. 34, 107 S.E.2d 697 (1959) (decided under former Code 1933, § 113-1013).
Advancement determined by intent of parent at time of transaction.
- Deed of gift by a father-in-law to a son-in-law, accepted by the latter, which contains a provision clearly indicating that it was the intention of the grantor that the property so conveyed was to be an advancement to the daughter, the wife of the grantee, is an advancement to the daughter under the terms of the statute, notwithstanding the daughter may have been ignorant, not only of the fact that the deed contained such a provision, but even of the existence of the deed altogether. Ireland v. Dyer, 133 Ga. 851, 67 S.E. 195, 26 L.R.A. (n.s.) 1050, 18 Ann. Cas. 544 (1910) (decided under former Code 1910, § 4052).
When testator, while acting as guardian for the father of the minor in whose behalf suit was instituted, had advanced to her ward, out of the funds inherited by him, a sum of money with which to buy an aeroplane, and during the interim between his arrival at majority and his death at age 25 there was no evidence of an inclination on his part to require his mother to account for the sum so advanced to him, auditor was authorized to find a ratification on his part, and, to that extent, to deny a recovery against the executor of the testator. Kytle v. Kytle, 180 Ga. 833, 181 S.E. 81 (1935) (decided under former Code 1933, § 113-1013).
When money or property is transferred by a parent to a child, or for the child's benefit, the question whether the transfer is to be treated as an advancement depends upon the intention of the parent at the time of the transaction. Treadwell v. Everett, 185 Ga. 454, 195 S.E. 762 (1938) (decided under former Code 1933, § 113-1013).
When money or property is transferred by a parent to a child, and is accepted, the question of whether the transfer is to be treated as an advancement depends upon the intention of the parent at the time of the transaction, without regard to concurrence on the part of the child. Berry v. Berry, 208 Ga. 285, 66 S.E.2d 336 (1951) (decided under former Code 1933, § 113-1013).
Question of whether a transfer of funds between parent and child is to be treated as an advancement depends upon the intention of the parent at the time of the transaction. Smith v. Varner, 130 Ga. App. 484, 203 S.E.2d 717 (1973) (decided under former Code 1933, § 113-1013).
Child met the child's burden of rebutting the presumption that disbursements to the child by the child's mother during the last two years of her life were advancements by presenting clear and satisfactory evidence that her intent was to make loans or investments. Tankesley v. Thompson, 220 Ga. App. 641, 469 S.E.2d 853 (1996) (decided under former O.C.G.A. § 53-4-50).
Presumed advancement.
- Conveyance of land by a father to an adult child, reciting a consideration of love and affection, is, in the absence of proof to the contrary, presumed to be an advancement. Bowen v. Holland, 184 Ga. 718, 193 S.E. 233 (1937) (decided under former Code 1933, § 113-1013).
Gift of property by a father to an adult son, who is married and does not live under the parental roof, is presumed to be an advancement. Holliday v. Wingfield, 59 Ga. 206 (1877) (decided under former Code 1873, § 2579); Howard v. Howard, 101 Ga. 224, 28 S.E. 648 (1897); Kaylor v. Kaylor, 199 Ga. 516, 35 S.E.2d 1 (1945) (decided under former Civil Code 1895, § 3474);(decided under former Code 1933, § 113-1013).
Controverted declaration in writing, which was made after the death of the father by a child, that the child was "due," or owed, the child's deceased father a stated amount for stock and money, and which as an account would on its face be barred by the statute of limitations, would, if such admission be established as true, have probative value only as to the fact that the child had received such an amount from the father, and there being no other evidence as to the nature and character of the item and there being no other proven facts or circumstances such as would support a presumption in favor of an advancement, a finding in favor of an advancement would be unsupported by the evidence. Kaylor v. Kaylor, 199 Ga. 516, 35 S.E.2d 1 (1945) (decided under former Code 1933, § 113-1013).
Method of proof of an advancement prescribed by statute is not exclusive; when there is no writing the question is for the jury on all the evidence presented. Bransford v. Crawford, 51 Ga. 20 (1874) (decided under former Code 1873, § 2580).
Endorsement on back of will by testator sufficient as memo.
- Advancements are sufficiently proved by endorsements on the back of a will in the testator's handwriting made pursuant to a provision therefor in the will. Kramer v. Lyle, 197 F. 618 (N.D. Ga.), rev'd on other grounds, 201 F. 248 (5th Cir. 1912), cert. denied, 231 U.S. 753, 34 S. Ct. 322, 58 L. Ed. 467 (1913) (decided under former Civil Code 1910, § 4053).
Cited in Beall v. Blake, 16 Ga. 119 (1854); Weems v. Andrews, 22 Ga. 43 (1857); Clayton v. Akin, 38 Ga. 320, 95 Am. Dec. 393 (1868); Sims v. Sims, 39 Ga. 108, 99 Am. Dec. 450 (1869); Worrill v. Gill, 46 Ga. 482 (1872); Reed v. Reed, 68 Ga. 589 (1882); Hart v. Johnson, 81 Ga. 734, 8 S.E. 73 (1888); Holliday v. Wingfield, 59 Ga. 206 (1897); Ireland v. Dyer, 133 Ga. 851, 67 S.E. 195, 26 L.R.A. (n.s.) 1050, 18 Ann. Cas. 544 (1910); Parker v. Parker, 147 Ga. 432, 94 S.E. 543 (1917); Hobby v. Ford, 149 Ga. 176, 99 S.E. 624 (1919); Elliott v. Johnson, 178 Ga. 384, 173 S.E. 399 (1934); Beard v. Beard, 197 Ga. 487, 29 S.E.2d 595 (1944); Harrison v. Barber, 200 Ga. 225, 36 S.E.2d 662 (1946); Roberts v. Wilson, 200 Ga. 201, 36 S.E.2d 758 (1946); In re Engram, 156 F. Supp. 342 (M.D. Ga. 1957); Fuller v. Fuller, 107 Ga. App. 429, 130 S.E.2d 520 (1963); Thompson v. Mathews, 226 Ga. 347, 174 S.E.2d 916 (1970); Chandler v. Owen, 233 Ga. 25, 209 S.E.2d 618 (1974); Howard v. Estate of Howard, 249 Ga. App. 287, 548 S.E.2d 48 (2001); Cubbedge v. Cubbedge, 287 Ga. App. 149, 650 S.E.2d 805 (2007).
Ademption Rule
Meaning of ademption.
- Ademption of a specific legacy is the extinction or withdrawal of it, in consequence of some act of the testator equivalent to its revocation, or clearly indicative of an intention to revoke. Kramer v. Kramer, 201 F. 248 (5th Cir. 1912), cert. denied, 231 U.S. 753, 34 S. Ct. 322, 58 L. Ed. 467 (1913) (decided under former Civil Code 1910, § 3908).
Ademption is effected by the extinction of the thing or fund bequeathed, or by disposition of it subsequent to the will from which an intention that the legacy should fail is presumed. Kramer v. Kramer, 201 F. 248 (5th Cir. 1912), cert. denied, 231 U.S. 753, 34 S. Ct. 322, 58 L. Ed. 467 (1913) (decided under former Civil Code 1910, § 3908).
Term "ademption" is sometimes used as synonymous with satisfaction, but such use is inaccurate, as ademption operates independently of intention in case the specific thing given is, at the testator's death, no longer owned by testator. Kramer v. Kramer, 201 F. 248 (5th Cir. 1912), cert. denied, 231 U.S. 753, 34 S. Ct. 322, 58 L. Ed. 467 (1913) (decided under former Civil Code 1910, § 3908).
Ademption generally.
- When a testator conveys to another specific property devised or bequeathed, and does not afterward become possessed of the property, and the will contains no provision for such contingency, the devise or legacy is adeemed, and such legal result cannot be obviated by extrinsic evidence tending to show that the testator did not intend it. Thompson v. Long, 202 Ga. 718, 44 S.E.2d 651 (1947) (decided under former Code 1933, § 113-817).
Standard for defining a "conveyance" is whether there has occurred a change in the testator's ownership sufficiently radical to manifest, as a matter of law, the testator's intention to revoke the specific devise. The term "conveyance" includes a single transaction by which a testator sells the testator's fee simple title to real estate in return for a security title to the real estate sold. Peacock v. Owens, 244 Ga. 203, 259 S.E.2d 458 (1979) (decided under former Code 1933, § 113-817).
Ademption arises upon the conveyance of the specific property covered by the legacy, and rests upon a rule of law independent 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 statute, and in the absence of any provision in the will in contemplation of such a contingency, a trial court properly held that a devise had been wholly adeemed by reason of the conveyance of the realty involved, and since the testator died intestate as to this devise, that the proceeds thereof passed into the residuum of the estate. Thompson v. Long, 202 Ga. 718, 44 S.E.2d 651 (1947) (decided under former Code 1933, § 113-817).
Devise adeemed.
- When a testator conveys to another specific property devised or bequeathed, and does not afterwards become possessed of the property, and the will contains no provision for such contingency, the devise or legacy is adeemed, and such legal result cannot be obviated by extrinsic evidence tending to show that the testator did not intend it. Moncrief v. Shuman, 169 Ga. 217, 150 S.E. 98 (1929) (decided under former Civil Code 1910, § 3908).
When a testator conveys to a third party specific property devised and the will contains no provision for such a contingency, there can be no inquiry into a testator's intention in adeeming specifically bequeathed property. Woodall v. First Nat'l Bank, 223 Ga. 688, 157 S.E.2d 261 (1967) (decided under former Code 1933, § 113-817).
Devise held to be adeemed.
- When wife devised one-half interest in real estate to husband by specific devise, but did not devise the proceeds of its sale to husband, the specific devise was adeemed by alienation when testator sold the fee simple title in return for a down payment, note, and security title. Powell v. Thorsen, 253 Ga. 572, 322 S.E.2d 261 (1984) (decided under former O.C.G.A. § 53-2-105).
Exceptions
Exceptions to ademption rule.
- There are four exceptions to the rule that ademption occurs when a testator conveys to another the specific property bequeathed, those exceptions are: (1) where the testator afterwards becomes possessed of the same property; (2) where the attempt to convey fails; (3) where the testator exchanges the property for other of like character; and (4) where the testator merely changes the investment of a fund bequeathed. Lang v. Vaughn, 137 Ga. 671, 74 S.E. 270, 40 L.R.A. (n.s.) 542, 1913B Ann. Cas. 52 (1912) (decided under former Code 1933, § 113-817) Woodall v. First Nat'l Bank, 223 Ga. 688, 157 S.E.2d 261 (1967);(decided under former Code 1933, § 113-817).
A specific devise is adeemed when, after the execution of the will, the testator "conveys" to another the specific property devised unless one of the following four exceptions applies: reacquisition by the testator; 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, 259 S.E.2d 458 (1979) (decided under former Code 1933, § 113-817).
RESEARCH REFERENCES
Am. Jur. 2d.
- 3 Am. Jur. 2d, Advancements, §§ 1, 2, 4 et seq., 26 et seq., 43, 74. 80 Am. Jur. 2d, Wills, §§ 1458 et seq., 1460, 1482.
Ademption by Satisfaction, 1 POF2d 641.
Wills: Ademption of Legacy by Satisfaction or by Extinction, 91 POF3d 277.
C.J.S.- 26B C.J.S., Descent and Distribution, §§ 95 et seq. 97 C.J.S., Wills, § 1742 et seq.
ALR.
- What amounts to an ademption or abatement of a legacy of a business or professional practice, 13 A.L.R. 173; 16 A.L.R.2d 1404.
Intent as a factor in determining whether there is an advancement, 26 A.L.R. 1089.
Presumption and burden of proof with respect to advancements to children, 26 A.L.R. 1106; 31 A.L.R.2d 1036.
Applicability of doctrine of advancements to testate succession, 32 A.L.R. 730.
Ademption of bequest of chattel by change in form, 40 A.L.R. 558.
Recovery of excess of advancement over distributable share in estate, 46 A.L.R. 1428.
Items in form of account as advancements, 49 A.L.R. 574.
What included in terms "notes," "securities," etc., in a bequest, 52 A.L.R. 1097.
Ademption or failure of substituted gift made by codicil or later will as preventing revocation, or effecting revival, of original gift to the same legatee or devisee, 59 A.L.R. 1106.
Change from absolute ownership of real property to mortgage interest by way of security, or vice versa, as ademption or revocation of legacy or devise, 65 A.L.R. 632.
Option given by testator before or after execution of will as ademption of specific legacy or devise, 79 A.L.R. 268; 155 A.L.R. 571.
Applicability of doctrine of advancements in case of pretermitted child or grandchild entitled by statute to the share which he would have received if testator had died intestate, 88 A.L.R. 375.
Interest or estate remaining in testator after conveyance or transfer of less than his entire interest or estate in property as passing under previously executed will covering property in question, 117 A.L.R. 1380.
Duty and liability of executor (or administrator with will annexed) in respect of personal property specifically bequeathed, and not needed for payment of debts, 127 A.L.R. 1071.
Doctrine of "advancements" as applicable to transfer by testator to devisee or legatee after execution of will, 142 A.L.R. 524.
Burden of debts and cost of administration as between residuary legatees, and heirs or next of kin who take lapsed, adeemed, or invalid legacies, 144 A.L.R. 476.
Doctrine of election as applicable where testator after the execution of the will transferred to one beneficiary the subject of a specific devise or bequest to another, 147 A.L.R. 735.
Devise of undivided interest as affected by partition of tract subsequent to execution of will, 162 A.L.R. 146.
Will charging distributee's share with advancement to or debt owing by him as invoking doctrine of hotchpot, 165 A.L.R. 899.
Construction and effect of general legacy conditional upon ademption of specific legacy or devise to legatee, 2 A.L.R.2d 819.
Right of general legatee of stocks, bonds, or other securities, where testator owns at time of death none such as are described in will or less than bequeathed, 22 A.L.R.2d 457.
Satisfaction or ademption of general legacy by inter vivos gift, transfer, or payment to the legatee or another, 26 A.L.R.2d 9.
Right of beneficiary as against estate of insured who borrowed on the policy, 31 A.L.R.2d 979.
Disposition of proceeds of insurance on property specifically bequeathed or devised, 35 A.L.R.2d 1056.
Ademption or revocation of specific devise or bequest by guardian, committee, or conservator of mentally or physically incompetent testator, 51 A.L.R.2d 770.
Codicil as reviving adeemed or satisfied bequest or devise, 58 A.L.R.2d 1072.
What amounts to ademption to specific legacy of corporate stock or other corporate securities, 61 A.L.R.2d 449.
Conclusiveness of testator's statement as to amount of debt or advancement to be charged against legacy or devise, 98 A.L.R.2d 273.
Ademption of bequest of proceeds of property, 45 A.L.R.3d 10.
Change in stock or corporate structure, or split or substitution of stock of corporation, as affecting bequest of stock, 46 A.L.R.3d 7.
Ademption of legacy of business or interest therein, 65 A.L.R.3d 541.
Disposition of insurance proceeds of personal property specifically bequeathed or devised, 82 A.L.R.3d 1261.
Unexplained gratuitous transfer of property from one relative to another as raising presumption of gift, 94 A.L.R.3d 608.
Liability for wrongful autopsy, 18 A.L.R.4th 858.
Ademption of bequest of debt or balance on debt, 25 A.L.R.4th 88.
Proper disposition under will providing for allocation of express percentages or proportions amounting to more or less than whole of residuary estate, 35 A.L.R.4th 788.
Ademption or revocation of specific devise or bequest by guardian, committee, conservator, or trustee of mentally or physically incompetent testator, 84 A.L.R.4th 462.