Ademption and voluntary partition are two important concepts in Texas Probate Law that are often confused. Understanding the differences between the two concepts is crucial for those who are administering an estate or creating an estate plan.
Ademption in Texas Probate Law
Ademption refers to the situation where a specific gift in a will or trust is no longer available at the time of the grantor’s death. For instance, if a grantor leaves a particular item of property to a beneficiary in their will and the item is not present in the grantor’s possession at the time of their death, the gift is considered adeemed. The beneficiary does not receive the item, and the property passes to the next person or entity specified in the will or trust.
Voluntary Partition in Texas Probate Law
Voluntary partition, on the other hand, refers to the division of real property between co-owners. In Texas, co-owners of real property have the right to divide the property, either voluntarily or through court-ordered partition. If a co-owner of real property passes away, their share of the property may be distributed to their heirs or devisees as specified in their will or as per Texas law.
Texas Case Law
Rogers v. Carter, 385 S.W.2.d 563 (Tex. 1964)
Ademption occurs when someone leaves something in their will such as a gift that they no longer own at the time they pass away. The general rule is that a specific legacy is adeemed if the thing given is disposed of by the testator during his lifetime. Ademption can only be applied to land that is involuntarily partitioned meaning there was no mutual consent between owners when land was partitioned. When does ademption arise in litigation? How does it affect a person’s interests in property? Rogers v. Carter answers these questions.
Facts of the Case:
This case is one involving the rights to certain tracts of land left behind in a will made by a man named Jim Rogers. Jim had six children from his first wife Ida who passed away without a will in 1913, and he had a step-daughter from his second wife, Belle, who died with a will shortly after Jim did, but before the filing of this suit. In her will, Belle left everything to her daughter, Louise, and son-in-law, Norton. Jim owned various tracts of land over his lifetime, but through various exchanges of land to family members, by the time he died he only had interest in two tracts which were called surveys 11 and 13. These are the pieces of land disputed in this case.
Jim’s children asserted that the after-acquired interests of this land should pass to them under paragraph II of his will. Under the construction of the will by the trial court, the children were devised the undivided one-third interest in Surveys 11 and 13, and the remaining two-thirds interest in those surveys, which were acquired by Jim after his will was executed, passed to his surviving wife under the residuary clause of the will. All debts against Surveys 11 and 13 were ordered to be paid out of what was left of the estate. This construction was upheld in higher court.
What this Case Means:
Jim’s children recognized the rule of ademption, but they argued that it had no application to their case as the conveyances by Jim were only a voluntary partition whereby the testator’s undivided interest in the land was exchanged for equivalent specific parcels of the same land. This argument was not supported by the trial court nor the court of appeals.
Jim made several transactions of land with his sons Merlin and Melvin Rogers, and due to the nature of these transactions, the courts stated they could not construe them to be voluntary partitions. Jim Rogers owned less land after these conveyances than at the time his will was executed. A voluntary partition, as his children argued, happens when land is exchanged for equivalent specific parcels of the same land. In addition, there were other considerations moving between the parties, in that each assumed new obligations. Merlin Rogers had no part in the exchanges in 1950 between the two co-tenants of some of the tracts, and Melvin had no part in the exchanges of 1957 between Merlin and Jim Rogers of interests in the other tracts of land. This meant that some exchanges happened without the consent of some of the parties, and therefore, could not be considered voluntary.
Another argument the children made was that the land given to them was not a specific devise meaning it was not specifically described in the will, and therefore could not be adeemed since ademption can only apply to specific devises. The court; however, construed the will as a specific devise based on previous cases where it had been found that similarly worded devises in other wills had been upheld as specific. For these reasons, the court of appeals held that the trial court had properly construed the will to allow ademption stating that there was no voluntary partition of land, and that it contained a specific devise.
Conclusion
Ademption and voluntary partition are two significant concepts in Texas Probate Law that impact the distribution of property in an estate. Understanding the differences between ademption and voluntary partition is crucial for anyone involved in the administration of an estate or the creation of an estate plan.
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