McGee v. McGee
122 R.I. 837, 413 A.2d 72 (1980)

  • Claire McGee made a will leaving $20k to her friend Hurd.
    • This is a general bequest. The estate can pay this from any source.
  • The will also said that her stock and all of her monies in any bank should be split three ways between her grandchildren.
    • This is a specific bequest (aka a specific legacy). These can only be paid by the estate from that specific source.
  • Her son, the administrator of her estate, sold her stock, took out the $30k from her bank account, and bought savings bonds. Then Claire died. The son petitioned the court to ask who the $30k should be given to.
    • There was nothing left in the bank account, there was only saving bonds.
    • When you can’t give an item in your will to someone because you no longer own it, that’s called an ademption by extinction.
      • The will specifically gave “monies in the bank” to the grandchildren, but there was nothing in the bank anymore.
  • The Trial Court found that the money should go to the grandchildren. Hurd appealed.
    • The Trial Judge felt that bequests to whose who are “natural objects of the testator’s bounty” should take precedence.
  • The Rhode Island Supreme Court reversed and gave the $20k to Hurd.
    • Hurd argued that the savings bonds were not stocks or money in the bank and therefore should not be given to the grandchildren.
      • Hurd argued that the clause about the grandchildren was a specific bequest, and that once the money had been taken out of the bank and used to by savings bonds it no longer existed. The gift to the grandchildren had been adeemed by extinction.
      • Alternately, the clause about Hurd was a general bequest, which could from any source, so it could be taken out of the bond money.
    • The grandchildren argued that a savings bond is a fluid as cash, and that Claire intended the money to go to the grandchildren.
      • The change to bonds was a form change and not a substance change, and shouldn’t matter.
    • The Rhode Island Supreme Court found that the money had been adeemed by the purchase of the bonds and there was no language in the will that could be construed to show that Claire intended to give any bonds to the grandchildren.
  • There are four types of bequests. You fill gifts of the first type first, then if there is money left over, you fill the gifts of the next type:
    • Specific (a specific item)
    • Demonstrative (comes form a particular source)
    • General (comes from any source)
    • Residuary (comes from what is left over)