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Devise of farmland adeemed by extinction

Virginia Lawyers Weekly//August 20, 2023

Devise of farmland adeemed by extinction

Virginia Lawyers Weekly//August 20, 2023//

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Where the testator’s will provided that appellant, one of the testator’s sons, would inherit farmland that she had inherited from her husband, the devise to appellant was adeemed by extinction when the testator conveyed the disputed acreage to another son who died intestate, leaving the testator as his sole heir, who inherited his interest in the farmland.


“Betty Atkins (Betty) died testate in February 2020, survived by three of her four adult children: appellant [Curtis Glen Atkins], Sheryl, and Joseph. Her fourth child, Timothy, predeceased her by two months.

“In 1982, Betty executed a will devising among other things a tract of farmland that, at the time, was jointly owned by her husband and brother-in-law.

When her husband died, she inherited her husband’s interest in the farm. She and her brother-in-law divided the property. Betty acquired a fee simple interest to a 142.618-acre tract.

Article Third of Betty’s will provided that her sons, Timothy and appellant Glen, would inherit, as joint tenants with right of survivorship, “‘any and all interest which I may receive from my said husband in the farm at Maybrook, Giles County, Virginia, which farm is currently jointly owned by my husband and my brother-in-law[.]’

“Betty’s will also contained a residuary clause, conveying ‘the rest, residue[,] and remainder of [her] estate’ to Joseph.”

Betty conveyed one acre of land to Timothy. “In February 2012, Betty conveyed her remaining 141.618 acres of the farm to appellant by a deed of gift. As a result, she no longer possessed any interest in the farm.”

Later, Betty filed a complaint “against appellant seeking to void the 2012 deed of gift. Betty and appellant settled the lawsuit. Although the terms of the settlement are not in the record, appellant subsequently conveyed 83.587 acres of the tract to Timothy in 2015.

“At this point, Timothy owned 84.587 acres (the 83.587 acres he received from appellant, and the 1 acre he [previously] received from his mother) and appellant owned 58.031 acres as ‘separate tracts.’ Betty did not reacquire any interest in the farm as a result of the settled deed-of-gift lawsuit.

“Timothy died intestate in December 2019, and Betty, his sole heir at law, inherited his 84.587-acre interest in the farm. Betty died two months later, and her will was admitted to probate.

“Appellant filed a complaint against Sheryl and Joseph, individually and as co-executors, seeking a judicial declaration that Article Third of Betty’s will entitled him to the 84.587 acres that Betty inherited from Timothy, which would make appellant the fee simple owner of all 142.618 acres.

“Sheryl and Joseph moved for summary judgment, arguing that Article Third of Betty’s will did not apply because Betty inherited the disputed acreage from Timothy, not her husband. …

“In a letter opinion, the court found that the devise in Article Third of Betty’s will had adeemed by extinction. The court reasoned that the inter vivos conveyances of Betty’s interest in the farm ‘completely change[d] the nature of the property and negated any intent on behalf of [Betty]’ and her subsequent coincidental inheritance of Timothy’s 84.587 acres did not ‘revive Article Third.’

“Thus, the court found that the devise in Article Third ‘failed’ and the 84.587 acres fell into the estate’s residuary and passed to Joseph. Appellant moved for reconsideration, arguing that Code § 64.2-413 altered the common-law rule of ademption by extinction. The court denied the motion[.]”


“Code § 64.2-413, titled ‘Effect of subsequent conveyance on will,’ states: ‘Except for an act that results in the revocation of a will pursuant to this article, any conveyance or other act done subsequent to the execution of a will shall not prevent the operation of the will with respect to such interest in the estate as the testator may have power to dispose of by will at the time of his death.’

“Appellant argues that Code § 64.2-413 ‘preclude[s] application of the common law doctrine of ademption by extinction and preserve[s] the validity and efficacy of the devise of Betty’s interest in the [farm] to Glen’ under the will.

“Appellant contends that Code § 64.2-413 revives the devise in Article Third because Betty reacquired an interest in the farm before she died[.] …

“Sheryl and Joseph respond that nothing in Code § 64.2-413 suggests that the ‘General Assembly expressly or plainly intended to abrogate [the] common law’ and therefore the devise did in fact adeem. …

“We disagree with appellant’s contention that Code § 64.2-413 precludes the ‘ademption by extinction’ doctrine and preserves the efficacy of Article Third in Betty’s will. Although the statute abrogated the common law in one respect, appellant’s interpretation is overbroad.

“Historically, under the English common law, ‘a conveyance of previously devised property’ resulted in an implied revocation of the entire will. … Over time, however, this rule ‘has been quite generally abrogated or modified by statute.’ …

“Code § 64.2-413 is one such statute: it provides that a subsequent conveyance of a specific devise, even if significant, does not and cannot operate as a full revocation of an entire will. …

“Appellant reads Code § 64.2-413 too broadly. Instead of precluding the ‘ademption by extinction’ doctrine in this case, Code § 64.2-413 merely establishes that the only effect of a subsequent conveyance is an ademption. …

“Accordingly, the issue before us is whether the devise of property specifically described in Article Third of the will adeemed. An ademption by extinction occurs when ‘the unique property that is the subject of the specific bequest has been sold, given away, or destroyed, or is not otherwise in existence at the time of the testator’s death.’ …

“Any interest in the farm Betty ‘receive[d] from [her] husband’ expired in 2012, when she conveyed her remaining 141.618 acres to appellant. …

“Appellant subsequently conveyed a portion of the property to Timothy and kept the rest. Betty’s unintentional reacquisition of part of the farm due to Timothy’s death is immaterial.

“The portion of the farm that Betty inherited as a result of Timothy’s death was not the same property that was the subject of Article Third – it was not the ‘interest which [she] … receive[d] from [her] husband.’

“The interest she acquired in 2019 was from Timothy. Thus, the ‘thing [devised]’ – the interest in the farm she received from her husband – was no longer ‘in existence’ as a result of the 2012 conveyance to appellant. …

“Thus, we hold that the devise in Article Third of Betty’s will adeemed.”


Atkins v. Williams, et al., Record No. 0751-22-3, Aug. 1, 2023. CAV (unpublished opinion) (O’Brien; Chaney, dissenting) From the Circuit Court of Giles County (Turk). Timothy E. Kirtner for appellant. H. Gregory Campbell Jr. for appellees. VLW 023-7-305, 15 pp.

VLW 023-7-305

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