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Fletcher v. Ellenburg

A tract of land, which the decedent bequeathed to the appellant in her original will, was adeemed pursuant to O.C.G.A. § 53-4-66, because the decedent sold the property and amended her will to specifically include her "real property," without referring to the devised property, which she no longer owned.

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In this case involving the construction of a will, the probate court determined that a specific devise of real property which was not owned at the time of death of testatrix is adeemed. We affirm. In 1961 testatrix Mary M. Hyde acquired a tract of land adjacent to her parents’ home. She built a one-story brick house on that property, known as 2383 DeFoors Ferry Road, Atlanta, Georgia “DeFoors property”. She rented the DeFoors property to others while she continued to live with her mother in the family home. In 1975 her mother passed away, leaving testatrix a life estate in the family home, where testatrix continued to reside. Also in 1975 testatrix executed a will devising the DeFoors property to her niece, appellee Mary Carol Fletcher.

In 1993 testatrix signed a contract to sell the DeFoors property to a developer. Three weeks later she purchased a lot with a one-story brick house at 3460 Pinetree Drive, Smyrna, Georgia “Pinetree property”, for $90,000, but she continued to reside in her parents’ home. The sale of the DeFoors property was not consummated until 1995, and testatrix realized approximately $92,000 from the transaction. At that time she moved into the Pinetree property.

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