Law of Wills, 2016A

intentional interference with an inheritance or gift. Tennessee does not, however, recognize that
tortious cause of action. See Fell, 36 S.W. 3d at 849-50.Accordingly, the Court of Appeals erred in
imposing a constructive trust upon the proceeds from the sale of the Undeveloped Tract.
CONCLUSION
Upon our close and careful review of the record in this case, we have determined that the evidence
preponderates in favor of the trial court’s judgment that Stewart failed to establish any unlawful
conduct on the part of the defendants Sewell and Judkins stemming from their sale of the
Undeveloped Tract pursuant to the POA. The Court of Appeals erred in distinguishing this case
from the rule of ademption by extinction set forth in Hume, in retroactively applying Tennessee
Code Annotated section 32-3-111, and in imposing a constructive trust on the proceeds of the sale
of the Undeveloped Tract. Accordingly, we reverse the judgment of the Court of Appeals as to
Sewell and Judkins and reinstate the judgment of the trial court dismissing the action against all
defendants. The costs of this cause are assessed against the plaintiff George Haskell Stewart and his
sureties, for which execution may issue if necessary.
Notes, Problems, and Questions
1. The Stewart court relied on the traditional identity theory of ademption. Under that theory, if a gift
that is specifically devised is not in the testator’s estate, the devisee is not entitled to receive
anything. The Court stated that the testator’s intent was not relevant to the analysis. Some states
have adopted the intent theory of ademption that permits a devisee to receive replacement property
or cash value if he or she can show that the testator wanted that outcome. How would the Stewart
case have been decided if the intent theory was applied?
2. From a public policy perspective, should courts adopt the identity or the intent approach?
3. Problems-Answer the following problems based upon UPC §2-606.
(a) In 2013, Fred executed a will leaving his house to his cousin, Mary. He left the rest of the estate
to his son, Karl. A few months later, Fred’s house burned to the ground. The insurance company
gave Fred $230,000 to compensate for his lost. Fred used the money to take five of his friends on a
cruise around the world. In 2015, Fred died. At the time of his death, Fred lived in an apartment he
was renting. Fred left an estate consisting of $20,000, an art collection worth $100,000, an RV, a
truck and other personal property. What, if anything, does Mary take?
(b) In 2009, Thomas executed a will stating, “I leave my Walmart stocks to my sister, Cassie; I leave
$120,000 to my brother, Mark; and I leave the rest of my estate in trust for my grandchildren.” In
2011, Thomas sold his Walmart stocks for $150,000. Thomas lent the $150,000 to his daughter,
Betty, so that she could buy a house. In exchange, Betty gave Thomas a mortgage on the house. In
2015, Thomas died. At that time, Betty still owed him $100,000. What, if anything, does Cassie
take?
(c) In 2004, Jean executed a will stating, “I leave my diamond ring to Sofia; I leave the rest of my
estate to charity.” In 2008, Jean was mugged and her diamond ring was stolen. As a result of her
injuries, Jean was no longer able to wear a ring. When Jean received the insurance money, she
purchased a diamond necklace. In 2012, Jean died. What, if anything, does Sofia take?
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