Morrison v. Grandy

443 S.E.2d 751, 115 N.C. App. 170, 1994 N.C. App. LEXIS 554

Opinion

ARNOLD, Chief Judge.

The question here presented is whether the devise in Item VII adeemed because of the agreement to sell. The answer is no, ademption simply does not apply. Legal fiction should not be considered when there are relevant statutes, such as N.C. Gen. Stat. § 31-41 (1984), which apply. G.S. § 31-41 states “[e]very will shall be construed ... to speak and take effect as if it had been executed immediately before the death of the testator, unless a contrary intention shall appear by the will.”

At the time of the testator’s death, he retained legal title to the real estate. Following his death, that legal title passed to the devisees, Melvin and Arlene Grandy, per Item VII of the will, subject, of course, to the executory agreement. When the purchaser withdrew from the agreement, the devisees named in Item VII acquired complete title to the real estate.

The order of the trial court concluding that the devise adeemed is

Reversed.

Judges WYNN and MARTIN concur.