Law of Wills, 2016A

15.4 Ademption
The law considers a devise in a will to be an expectancy, so does the testator. If a person
executes a will leaving his or her property to someone, that person does not expect the devisee to
get any interest in that property until after he or she dies. After a person executes a will, he or she
continues to act as the owner or the property. Consequently, due to life circumstances, the person
may not own the devised property when the will becomes operational. For example, a person may
lose a house to foreclosure, sell a car or have a piece of jewelry stolen. In addition a person may
distributed some of the property mentioned in the will to the devisee. The doctrine of ademption
applies to situations involving changes in property following the execution of a will. There are two
types or ademption---extinction and satisfaction.
15.4.1 Ademption by Extinction
Specific devises of real and personal property are subject to the doctrine of ademption by
extinction. This rule only applies to specific devises. A specific devise refers to a piece of property
that is explicitly named like a house or a mink coat. Hence, if T leaves a will stating, “I leave my
1998 black mustang to Joe,” Joe only gets the mustang if T dies owning the car. Under the doctrine
of ademption by extinction, if T sells the mustang, Joe is not entitled to receive the value of the
mustang or another car that T owns at the time of his or her death. General, demonstrative, and
residuary devises are not impacted by the rule of ademption. If the testator intends to confer a
general benefit on the devisee instead of leaving him or her a particular piece of property, the devise
is classified as general. For example, T executes a will stating, “I leave $50,000 to Tina.” If T does
not have $50,000 in cash when he or she dies, the executor of the estate must sell other property to
satisfy the legacy meant for Tina. A demonstrative devise refers to a general gift to be paid from a
specific source. For instance, T executes a will stating, “I leave $50,000 to Troy to be paid from the
sale of my Wells Fargo stock.” If T dies without owning $50,000 worth of Wells Fargo stock, Troy
does not lose his devise. The executor must sell other property to raise the $50,000 so Troy can be
paid. The residuary devise is a grant of the remainder of the estate. This devise is not adeemed
because the devisee takes whatever is left over after all of the other devises have been satisfied.
Stewart v. Sewell, 215 S.W.3d 815 (Tenn. 2007)
CORNELIA, J.
We granted this appeal to clarify the applicability of the rule of ademption by extinction and of
Tennessee Code Annotated section 32-3-111 concerning the sale of specifically devised property. In
August 1994, the decedent Clara Stewart executed her last will and testament in which she left a
parcel of real estate to her stepson, the plaintiff in this matter. In November 1994, the decedent
executed a durable power of attorney to her natural children, defendants Sewell and Judkins. In
January 1997, the decedent’s health had so far deteriorated that she required placement in a nursing
home. In February 1997, Sewell and Judkins sold a portion of the devised real estate in order to fund
the decedent’s nursing home expenses. After their mother’s death, Sewell and Judkins inherited the
remaining proceeds of the sale; the plaintiff inherited that portion of the real estate which had not
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