Von Steinner v. Sorrell

Singley, J., delivered the opinion of the Court. Bonnie Love Von Steinner-Goltl, a widow, died domiciled in Prince George’s County, Maryland, on 30 September 1968. Her will, dated 9 August 1968, which was ad ²²⁹ mitted to probate, provided for the payment of her funeral expenses, made several specific bequests, and then provided: “I give, devise and bequeath all my right, title and interest in my house and lots in Highlands, North Carolina, my new Buick Skylark automobile, and color television to my friend, Mrs. Adelaide Grant, who currently resides at Apartment #201, 2101 North Glebe Road, Arlington, Virginia, in the event she shall survive me. All payments on said property are to be made by Oscar McMillan.” By the next paragraph, Mrs. Von Steinner-Goltl gave and devised the residue of her estate to her step-son, Albert Von Steinner, Jr. When W. Byron Sorrell, the executor of the will, realized that prior to the execution of the will, and on 7 August 1967, his testatrix had conveyed her property at Highlands, North Carolina to Oscar J. McMillan and wife and had taken in return their note, secured by a deed of trust, providing for monthly payments of $151.90, accounting- from 1 October 1967, he brought suit in the Circuit Court for Prince George’s County, Maryland, for a declaration of the rights of Mrs. Grant and Mr. Von Steinner under Mrs. Von Steinner-Goltl’s will.

From an order directing that the note representing the unpaid balance of purchase price of the North Carolina property, tog-ether with the amount collected after the death of the testatrix, be delivered to Mrs. Adelaide Grant, Albert Von Steinner, the residuary legatee, has appealed. The thrust of the appellant’s argument is that the provision made for Mrs. Grant was a specific devise, which was adeemed by the sale of the property, and that the proceeds of sale do not pass to Mrs. Grant, but fall into the residuary estate, relying on Schildt v. Schildt, 201 Md. 10 , 92 A. 2d 367 (1952); Gardner v. McNeal, 117 Md. ²³⁰ 27, 82 A. 988 (1911); and Kunkel v. MacGill, 56 Md. 120 (1881). The inherent weakness in the appellant’s contention stems from the definition of ademption. Ademption is "revocation, recalling, or cancellation, 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 revocation of it.” Black’s Law Dictionary 60 (4th ed. 1951).

While in a strict sense, the doctrine is applicable only to bequests of personalty, a similar result obtains in the case of devises of realty under the name of revocation. But in either case, it is the result of the non-existence of the thing bequeathed or of the interest devised in consequence of some act of the testator subsequent to the execution of the will. “If testator did not own the property when he made his will, or if it had then ceased to exist, such failure would ordinarily not be classified as an ademption, since this term is generally used to refer to specific bequests which might have taken effect if testator had died immediately after making his will.” Page on Wills, § 54.6 (1962) at 250; Miller, Construction of Wills in Maryland, § 141-1 (1927) at 381-83; Sykes, Probate Law and Practice, § 88 (1956) at 99; Walker v. Waters, 118