69 The Alabama Lawyer 326 (2008). The Case of the Vanishing Devise, or in the Alternative, Praise the Lord! It's Not Adeemed A Not-too-Scholarly Overview of Ademption in the Law of Alabama.

• Author: By J. MILTON COXWELL, JR.

The Alabama Lawyer

2008.

69 The Alabama Lawyer 326 (2008).

The Case of the Vanishing Devise, or in the Alternative, Praise the Lord! It's Not Adeemed A Not-too-Scholarly Overview of Ademption in the Law of Alabama

The Case of the Vanishing Devise, or in the Alternative, Praise the Lord! It's Not AdeemedA Not-too-Scholarly Overview of Ademption in the Law of AlabamaBy J. MILTON COXWELL, JR.Introduction

Until the following real fact situation was presented to me, I rarely had occasion to consider the subject of ademption. In fact, on those infrequent occasions when the subject arose I often had to resort to my time-worn Black's Law Dictionary, 3rd Edition (which belonged to my father when he was a law student in the mid-1930s) to refresh myself on the meaning of the word. However, that all changed after these facts were related to me. The names and places have been changed to protect the innocent, and the guilty.

Tom Testator executed a valid will in 1990 which contained the following devise:

"I hereby give and devise unto my beloved daughter Sally my undivided one-fourth interest in Blackacre, my family's ancestral home, which is further described as Section 1, T2N, R3E, Maycomb County, Alabama, consisting of 640 acres, more or less." The will also contained a residuary devise to Dick and Jane, who are Sally's siblings. In 1995, Tom Testator and his three siblings effected a partition of Blackacre, which resulted in Tom's becoming the sole owner of the southeast quarter of Section 1, and conveying to his siblings his entire interest in the balance of Blackacre.

Tom did not make a codicil to his will, and died in 2007, still owning the southeast quarter of Blackacre. Sally wants to know what portion of Blackacre she will receive under her father's will. Several possibilities immediately come to mind: (a) She will receive the entire southeast quarter; (b) She will receive an undivided one-fourth interest in the southeast quarter; or, (c) She will receive nothing and the entire southeast quarter will pass to Dick and Jane under the residuary.

For some reason, my mind drifted back to my days as a law student in Farrah Hall in the classes of Professor John Calhoun Payne, who always began class with the familiar phrase, "At the last hour. . . ." Specifically, I recalled those occasions when some unfortunate classmate had been called upon to recite a case involving a particularly inscrutable issue, while the rest of the class waited anxiously on the edge of their uncomfortable, straight-backed desks in expectation of an epiphany from "Blackjack," only to be deflated with his parting comment, "You see the problem."

I could certainly see Sally's problem, but I was not sure of the answer. Sally was comfortable with allowing me some time to research the issue, and I soon became re-acquainted with ademption in an up-close and personal fashion. My old Black's, 3rd Edition, defines "ademption" in part as:

"The revocation, recalling, cancellation or extinction of a legacy, according to the apparent intention of the testator, implied by the law from acts done by him in his life, though such acts do not amount to an express...