Testamentary Gift Adeemed by Extinction

In In re Estate of Tom Cone, Jr., filed February 28, 2022, the Tennessee Court of Appeals affirmed the Probate Court’s decision that a testamentary gift was adeemed by extinction.

Tom Cone, Jr., died on November 6, 2015. In his Will, he left his interest in a corporation, Cone Solvents, to his sister, Susan Ligon. Unfortunately, following the sale of substantially all of its assets to another corporation, Cone Solvents voluntarily disolved in 2011.

Following Cone’s death, his widow filed a motion for summary judgment, which was granted, finding that the gift to Ligon was adeemed by extinction. Cone had no ownership interest in Cone Solvents when he died. Ligon argued that continued use of Cone Solvent’s assets created a devisable interest in the successor business, but the successor was a separate, ongoing, viable entity and could not be deemed the equivolent of Cone Solvents.

On appeal, the Court found that

“[i]n construing a will, “the intention of the testator is of paramount importance.” Sands v. Fly, 292 S.W.2d 706, 710 (Tenn. 1956). We must give effect to that intent “unless prohibited by a rule of law or public policy.” In re Estate of McFarland, 167 S.W.3d 299, 302 (Tenn. 2005). The testator’s intent is “determined from the particular words used in the will itself, and not from what it is supposed the testator intended.” In re Estate of Milam, 181 S.W.3d 344, 353 (Tenn. Ct. App. 2005) (citations omitted); see In re Estate of McFarland, 167 S.W.3d at 302; Stickley v. Carmichael, 850 S.W.2d 127, 132 (Tenn. 1992).

Ademption by extinction occurs when some action taken during the decedent’s lifetime “interferes with the operation of the will.” In re Estate of Hume, 984 S.W.2d at 604 (quoting Am. Tr. & Banking Co. v. Balfour, 198 S.W. 70, 71 (Tenn. 1917)). If the subject of a specific bequest has been “annihilated or its condition so altered that nothing remains to which the terms of the bequest can apply,” the bequest has been adeemed by
extinction. Id. (quoting Wiggins v. Cheatham, 225 S.W. 1040, 1041 (Tenn. 1920)).

Although Cone no longer owned stock in Cone Solvents when he died, Ligon argued that “any interest” extended to the successor business. Ligon cited a case where ademption did not occur when a business changed its name. Here, however, Cone Solvents sold its assets to another business and ceased to exist. Thus, Ligon’s argument failed.