## Facts

- Foster Hume III executed a holographic will (Aug. 1, 1990) specifically devising “my Atl. House” to his niece, Meredith Klank.
- The will named the University of the South as residuary beneficiary.
- Hume owned an Atlanta house subject to a mortgage and became delinquent.
- Before Hume died (Nov. 12, 1991), the lender foreclosed and sold the house.
- The foreclosure sale produced surplus proceeds of $55,745.07 (after satisfying the mortgage), which were paid to the estate’s executrix.
- The executrix treated the house devise as adeemed and included the surplus in the residuary estate for the University.
- Klank objected to the accounting, claiming the identifiable surplus as the beneficiary of the specific devise.
- The probate court ordered payment of the surplus to Klank, and the intermediate appellate court affirmed.
- The state supreme court reviewed de novo whether ademption by extinction applied.

## Issues

1. Whether a specific devise of a house is adeemed by extinction when the house is sold at foreclosure before the testator’s death.
2. Whether identifiable surplus proceeds from a pre-death foreclosure prevent ademption or instead pass under the residuary clause.
3. Whether the testator’s intent, knowledge, or the alleged involuntary nature of foreclosure affects the ademption analysis for a specific devise.

## Decision

- The court reversed the intermediate appellate court and held the specific devise was adeemed by extinction.
- Because the Atlanta house was not owned by the testator at death, the devisee of the house took nothing under the specific devise.
- The surplus foreclosure proceeds were distributable to the residuary beneficiary, the University of the South.
- The case was remanded for further proceedings consistent with this holding.

## Legal Principles

- A specific devise is adeemed by extinction when the specifically devised property is not part of the testator’s estate at death.
- Under Tennessee’s objective approach to ademption by extinction, the central inquiry is the existence of the specifically devised property at death, not the testator’s subjective intent.
- Foreclosure before death removes the specifically devised real property from the estate, causing ademption of a devise of the property itself.
- Identifiable proceeds from disposition of specifically devised property (including surplus foreclosure proceeds) do not pass to the specific devisee absent will language extending the gift to proceeds; such proceeds fall into the residuary estate.

## Conclusion

The court applied an objective ademption-by-extinction rule and held that a pre-death foreclosure adeems a specific devise of the foreclosed house, with any surplus foreclosure proceeds passing to the residuary beneficiary rather than to the specific devisee, unless the will provides otherwise.


In re Estate of Hume, 984 S.W.2d 602 (Tenn. 1999)