You are here: / / DEVISE OF REAL PROPERTY HAD NOT ADEEMED, DESPITE DEED PURPORTING TO TRANSFER...

DEVISE OF REAL PROPERTY HAD NOT ADEEMED, DESPITE DEED PURPORTING TO TRANSFER PROPERTY PRIOR TO DEATH.

The will bequeathed real property to decedent’s two daughters, Watson and Fitzsimmons, with a life estate to Watson. Before decedent’s death Watson used a power of attorney to deed the property to herself. The Second Department determined decedent retained equitable title to the property at death. The deed was determined to be voidable, not void ab initio, and was not declared void until after death. Fitzsimmons argued that the devise of the property adeemed because it was not in decedent’s estate at death. Therefore, Fitzsimmons argued, the life estate awarded Watson in the will was cut off. Affirming Surrogate’s Court, the Second Department held the devise of the property had not adeemed:

 

The doctrine of ademption provides that “[u]nless the property devised or the thing bequeathed was found in the estate of the [decedent] at the time of [his or] her death, the will was necessarily inoperative as to that provision” … . Fitzsimmons asserted that because the deed to Watson was not void ab initio and was not declared void until after the decedent’s death, the decedent did not own the property at the time of her death, having deeded it to Watson. As such, Fitzsimmons contended that the devise of the property in the will adeemed, and that the property should pass through the residuary estate, which left 50% each to Fitzsimmons and Watson, thereby cutting off Watson’s life estate.

Under the particular circumstances of this case, the Surrogate’s Court properly held that the specific devise of property should not be determined to have adeemed, although it was not owned by the decedent at the time of her death. The deed by which the property was transferred to Watson was voidable, and thus, the decedent retained equitable title to the property, which title reverted to her estate when Fitzsimmons successfully asserted the estate’s claims to it … . Matter of Hill, 2016 NY Slip Op 00499, 2nd Dept 1-27-16

 

TRUSTS AND ESTATES (DEVISE OF REAL PROPERTY HAD NOT ADEEMED)/ADEMPTION (DEVISE OF REAL PROPERTY HAD NOT ADEEMED DESPITE DEED PURPORTING TO TRANSFER PROPERTY PRIOR TO DEATH)/DEEDS (VOIDABLE DEED, DECEDENT RETAINED EQUITABLE TITLE AT DEATH)

You might also like
THE DEFAULTING DEFENDANT WHOSE ANSWER HAD BEEN STRUCK WAS NOT ENTITLED TO FURTHER DISCOVERY PRIOR TO THE INQUEST ON DAMAGES (SECOND DEPT).
Prosecutor Acted as an Unsworn Witness and Improperly Suggested Defendant Committed Offenses With Which He Was Not Charged—Conviction Reversed in the Interest of Justice
FOR INMATES WHO COMMITTED CRIMES AS JUVENILES, THEIR YOUTH MUST BE TAKEN INTO CONSIDERATION IN PAROLE DETERMINATIONS (SECOND DEPT).
OKAY TO REPLACE PART-TIME LOBBY ATTENDANTS WITH VIDEO SURVEILLANCE (SECOND DEPT). ​
THE BANK INCLUDED OTHER NOTICES WITH THE NOTICE OF DEFAULT, A VIOLATION OF THE SEPARATE ENVELOPE RULE (RPAPL 1304) (SECOND DEPT). ​
Potential Use of Condemned Property In Conjunction with Adjoining Land Properly Considered in the Valuation of the Taking/Statutory 6% Interest Applies in Condemnation Proceedings
NO ONE WITNESSED FOUR-YEAR-OLD’S INJURY, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT PROPERLY GRANTED, PLAINTIFFS COULD NOT IDENTIFY THE CAUSE OF THE INJURY, INFANT PLAINTIFF SAID SHE WAS INJURED ON AN INFLATABLE SLIDE (SECOND DEPT).
THE CALIFORNIA JUDGMENT SHOULD HAVE BEEN GIVEN FULL FAITH AND CREDIT; THE COURT SHOULD NOT HAVE CONSIDERED THE UNDERLYING MERITS (SECOND DEPT).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

EASEMENT APPURTENANT PASSES TO SUBSEQUENT OWNERS EVEN IF NOT SPECIFICALLY MENTIONED... CONVERSION, REPLEVIN AND UNJUST ENRICHMENT CAUSES OF ACTION TIME-BARRED, CRITERIA...