Exchange, Loss, Theft, Destruction, or Condemnation of Testamentary Gift

1. Law
2. Georgia Code
3. Wills, Trusts, and Administration of Estates
4. Wills
5. Construction of Will; Testamentary Gifts
6. Exchange, Loss, Theft, Destruction, or Condemnation of Testamentary Gift

1. If the testator exchanges property which is the subject of a specific testamentary gift for other property of like character, or merely changes the investment of a fund so given, the testator's intention shall be deemed to be to substitute the one for the other, and the testamentary gift shall not fail.
2. If, within six months prior to the testator's death, property which is the subject of a specific testamentary gift is lost, stolen, or destroyed, and if such loss, theft, or destruction is covered, wholly or in part, by insurance, the specific beneficiary has the right to any proceeds of such insurance that are unpaid at the testator's death or, if any such proceeds have been paid prior to the testator's death, to a pecuniary gift equal to the amount of the proceeds so paid. The foregoing provisions shall also apply if the property is damaged but not destroyed, except that the amount of the insurance proceeds or the pecuniary gift to be paid to the specific beneficiary shall be reduced by the cost of any repairs made to the damaged property by the testator or the testator's personal representative.
3. If, within six months prior to the testator's death, property which is the subject of a specific testamentary gift is taken by condemnation, the beneficiary has the right to any award for such condemnation unpaid at the testator's death or, if any such award has been paid prior to the testator's death, to a pecuniary gift equal to the amount of the award so paid.

(Code 1981, §53-4-67, 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).

COMMENT

Subsection (a) of this section carries over former OCGA Sec. 53-2-106. Subsections (b) and (c) of this section add provisions outlining special circumstances in which a beneficiary may receive substitute testamentary gifts upon the loss, theft, destruction, or condemnation of property that is the subject of a specific testamentary gift.

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Civil Code 1910, § 3909, and former Code 1933, § 113-818, are included in the annotations for this Code section.

Statement that "the law deems the intention to be," etc., in the statute, shows that if the testator makes no provision in the testator's will on the subject, expressive of the testator's intent in case of a sale or the like, the law declares what it deems is the testator's legal intent; or, in other words, provides what shall be the result in such case. This excludes the idea that in every case what the law deems to be the intent has no force, and that the courts will go afield hunting for an intent expressed in parol or to be gathered from conduct or acts of the testator after the making of the will. 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 Civil Code 1910, § 3909).

Substitution generally.

- When specifically bequeathed capital stock is sold for money and the testator independently reinvests in stocks and certificates there is no "exchange" of property bequeathed for other of like character, as contemplated by the statute, so far as to except it from operation of the principle of ademption. Woodall v. First Nat'l Bank, 223 Ga. 688, 157 S.E.2d 261 (1967) (decided under former Code 1933, § 113-818).

Bequest of capital stock for the use and benefit of testator's wife that is subsequently sold by the testator prior to testator's death is not a fund bequested within the meaning of this statute. Woodall v. First Nat'l Bank, 223 Ga. 688, 157 S.E.2d 261 (1967) (decided under former Code 1933, § 113-818).

When lands exchanged were all farm land, the fact that the three tracts did not have the same acreage, and possibly not the same market value, does not prevent the tracts from being of like character. Thompson v. Mathews, 226 Ga. 347, 174 S.E.2d 916 (1970) (decided under former Code 1933, § 113-818).

Ademption and substitution.

- Because the purchase of a second property closed over a year before the sale of the bequeathed property closed and the testator executed a valid codicil after the sale that did not mention either property, the bequeathed properly was deemed pursuant to O.C.G.A. § 53-4-66; consequently, there was no basis for substitution under O.C.G.A. § 53-4-67(a). Fletcher v. Ellenburg, 279 Ga. 52, 609 S.E.2d 337 (2005).

Cited in Reed v. Reed, 68 Ga. 589 (1882); Roberts v. Wilson, 200 Ga. 201, 36 S.E.2d 758 (1946); Chandler v. Owen, 233 Ga. 25, 209 S.E.2d 618 (1974).

RESEARCH REFERENCES

Am. Jur. 2d.

- 80 Am. Jur. 2d, Wills, §§ 1167, 1475.

C.J.S.

- 96 C.J.S., Wills, § 1171 et seq.

ALR.

- Substitutional legacy or devise as affected by original legatee's or devisee's renunciation, 157 A.L.R. 1104.

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.

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