Heritage Asset Which No Longer Exists at Testator's Death

In Johnston v. Estate of Wheeler, 745 A.2d 345 (D.C.2000) the court stated as follows: "Whether a specific bequest has adeemed where the asset has undergone a change but is arguably still part of the estate is a conceptually distinct but nonetheless closely related question. Ultimately it too is a question of the testator's intent, to be discerned from the terms of the will in its entirety. A change in the character of the asset prior to the death of the testator will not result in ademption if the change is insubstantial or immaterial, such as a matter of form rather than substance. See 6 W. BOWE & D. PARKER 54.11. Whether a change in the specifically bequeathed asset adeems the bequest depends in part upon how the asset is described in the will and how that description is to be construed in the light of the surrounding circumstances. "The description may be so broad that it fits equally the right as it existed when the will was made, and the right as it exists when the testator dies"." 6 W. BOWE & D. PARKER 54.12, at 263. "Testator may devise or bequeath property which may or may not be in existence when the will is made, and which is so described by reference to qualities, relationships to different owners, and the like that, from time to time several or many different pieces of property, or rights might fit this description. If testator has devised or bequeathed a gift of this sort, and if the language of the will is construed so as to speak as of the date of testator's death, the devisee or legatee will take the property which fits the description of the will, although it may well be that testator did not own any of it at the time that the will was made, or even that such property was not in existence at the time that the will was made". 6 W. BOWE & D. PARKER 48.4, at 16. Since specific legacies are held in disfavor, we must be wary of construing such bequests too narrowly and elevating changes of form over substance, for in both cases the result may be to thwart the testator's wishes. Where a specifically bequeathed asset still exists in the estate, though altered in form, we must not indulge too readily the assumption that the testator's failure to revise his will to reflect the alteration means that he no longer intended to make the specific bequest. "No one familiar with the habits of testators will believe it. the great number of cases where T leaves his will untouched, although a change in circumstances has made it operate in a way he could not possibly desire, precludes any such assumption. Experience seems to warrant exactly the contrary assumption, to suggest that the explanation of T's failure to change his will is much less likely to be found in any change of intent than in ignorance, forgetfulness, or just the procrastination of an ordinary human being who knew he ought to change his will, meant to, but never quite got around to it." Phillip Mechem, Specific Legacies of Unspecific Things - Ashburner v. MacGuire Reconsidered, 87 U. PA. L. REV. 546, 547 (1939). In contrast to other kinds of bequests, "a specific bequest is a legacy of a particular, designated asset that only the delivery of that asset can satisfy." Wyman v. Roesner, 439 A.2d 516, 519 (D.C. 1981). If the designated asset is not part of the estate at death, the gift is extinguished, or adeems, unless the will provides otherwise. Id. at 520; 6 W. BOWE & D. PARKER, PAGE ON WILLS 54.5 (rev. ed. 1961 & Supp. 1999). In Wyman, for instance, this court held that where a testator has specifically bequeathed a debt, and the debtor pays off the debt before the testator's death, the bequest fails by ademption and the legatee is not entitled to the proceeds in lieu of the debt (unless the testator's intent that the legatee receive those proceeds is manifest in the terms of the will). The specific legatee's loss may be the residuary legatee's gain. "Unless a contrary intention appears by the will, the property comprised in a devise or bequest in a will that fails or is void or is otherwise incapable of taking effect, shall be deemed included in the residuary devise or bequest, if any, contained in the will." D.C. Code 18-308 (1997). Accord Dean v. Tusculum College, 90 U.S. App. D.C. 304, 305, 195 F.2d 796, 797 (1952). Or, if there is no residuary clause in the will, the property may go to the next of kin by the rules of intestacy pursuant to D.C. Code 19-301 et seq. (1997), see Brinker v. Humphries, 90 U.S. App. D.C. 180, 181, 194 F.2d 350, 351 (1952), or escheat to the District of Columbia pursuant to D.C. Code 19-701 (1997), see Knupp v. District of Columbia, 578 A.2d 702, 703 (D.C. 1990) (where residuary clause in will is invalidated, residue escheats).