Heritage of Asset That Is Not Part of the Estate at Death

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) the common law recognizes general, demonstrative and residuary legacies in addition to specific legacies. See Wyman, 439 A.2d at 519-20. 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). Thus, despite the axiom that in construing a will the testator's intent is the touchstone, in this jurisdiction "the modern view of ademption . . . does not explore intent" by means of evidence extrinsic to the terms of the will itself. Wyman, 439 A.2d at 522 (citing, inter alia, Kenaday v. Sinnott, 179 U.S. 606, 617-18, 45 L. Ed. 339, 21 S. Ct. 233 (1900)). Instead, it is "presumed" that if the testator made a specific bequest, he intended that bequest to fail if the designated asset is not part of the estate, unless the will in its entirety evinces a contrary intent. This is, of course, not a true evidentiary "presumption," but rather a legal rule adopted in large measure for reasons of practicality and convenience in estate administration. See Wyman, 439 A.2d at 523 n.5 ("In many cases where a specifically bequeathed item is absent from the estate, it is difficult - if not impossible - to determine the testator's intent. Because the testator often will have failed to foresee the eventuality that has come to pass, the court could be engaged in a futile effort to surmise an intent that the testator never had. The acceptance of extrinsic evidence such as testimony regarding the testator's oral declarations of intent would undermine the formalities of writing and execution established to avoid the possibility of perjury.") It has been said that "presumptions of intent should be invoked only in the absence of an expression of such intent and ought not to be relied upon to defeat the discernible wishes of the testator, however imprecisely expressed." Brinker, 90 U.S. App. D.C. at 183, 194 F.2d at 353 (finding that will indicated intent of testator that if devised property were sold during testator's lifetime, the proceeds from the sale were to stand in its place). Accord Estate of Lung, 692 A.2d at 1351; Wyman, 439 A.2d at 520. Indeed, it has long been appreciated that in many cases the strict doctrine of ademption does run directly counter to the probable intent of the testator: The presumption is stronger that a testator intends some benefit to a legatee, than that he intends a benefit only upon the collateral condition that he shall remain till death, owner of the property bequeathed. The motives which ordinarily determine men in selecting legatees, are their feelings of regard, and the presumption of course is that their feelings continue and they are looked upon as likely to continue. Kenaday, 179 U.S. at 619 (quoting Tifft v. Porter, 8 N.Y. 516 (1853)). Specific legacies are therefore "disfavored," and courts will construe a bequest as specific only if the provisions of the will clearly manifest the intention of the testator to make such a bequest. Wyman, 439 A.2d at 520; see also Kenaday, 179 U.S. at 619-20; Estate of Lung, 692 A.2d at 1350-51.