Cabin Remains in Estate
Solomon Silver's will specifically devises his lakeside cabin to Stella Shapiro. At his death the cabin stands unchanged in the estate. Stella receives the cabin itself under the specific devise.
Also known as: specific devise · specific legacy · specific bequest
Written by attorneys — see sources below.
A testamentary gift of identified property that passes to the named beneficiary if the property remains in the estate at death. The beneficiary receives any unpaid proceeds from a sale, condemnation, or insurance recovery when the original asset is absent. The gift fails only when failure would contradict the testator's intent.
Solomon Silver's will specifically devises his lakeside cabin to Stella Shapiro. At his death the cabin stands unchanged in the estate. Stella receives the cabin itself under the specific devise.
Sydney Santos's will specifically devises her residence to Sean Steele. A mortgage recorded before death remains unpaid. Sean takes the house subject to the mortgage with no right to exoneration from estate funds.
Sabrina Shah writes a letter shortly before death directing that her Montana cabin go to Serena Soto. The letter expresses present intent to transfer the specific property at death. Serena receives the cabin as the intended specific devisee.
Charles Kuralt and Patricia Elizabeth Shannon maintained a long-term intimate personal relationship that they kept secret from Kuralt's wife, Petie. Over nearly thirty years, Kuralt provided primary financial support to Shannon and her three children, transferred a home in Ireland to her, and established close relationships with her family. In 1985, Kuralt purchased a 20-acre parcel along the Big Hole River in Madison County, Montana, where he and Shannon built a cabin. Subsequently, in 1987, he acquired two adjoining parcels creating approximately 90 acres total. On May 3, 1989, Kuralt executed a holographic will bequeathing to Shannon all his interest in the land, buildings, furnishings, and personal belongings on Burma Road, Twin Bridges, Montana. Kuralt mailed a copy of this will to Shannon. On May 4, 1994, Kuralt executed a formal will in New York City prepared with counsel that did not mention the Montana property and named his wife and two children as beneficiaries. Shannon had no knowledge of the 1994 will until these proceedings began. On April 9, 1997, Kuralt deeded the original 20-acre parcel with the cabin to Shannon in a transaction disguised as a sale, supplying the purchase price himself. Shannon then sent Kuralt a blank buy-sell form at his request to convey the remaining 90 acres similarly, with plans to complete the transfer in September 1997. On June 18, 1997, while hospitalized in New York, Kuralt wrote a letter to Shannon enclosing checks for $8,000 and $9,000, stating he would have the lawyer visit to ensure she inherited the rest of the Montana property if necessary. Shannon petitioned to probate the June 18, 1997 letter as a holographic codicil to the 1994 will. The Estate opposed, leading the District Court to grant partial summary judgment to the Estate on May 26, 1998. Shannon appealed, resulting in reversal and remand by this Court in Kuralt I for trial on disputed facts. After an evidentiary hearing, the District Court found the letter a valid holographic codicil and entered judgment for Shannon, from which the Estate now appeals.
View caseUnder the identity theory the devise fails if the exact property is absent at death. The intent theory preserves the devise when failure would contradict the testator's plan even if the asset is gone.
No. The specific devise passes subject to any mortgage existing at death without exoneration regardless of a general directive to pay debts.
The devisee receives any unpaid balance of the purchase price or security interest remaining at death.
An insubstantial change such as moving the asset or switching banks preserves the devise. A sale converting the asset to cash defeats it absent contrary intent.
…for a valid holographic will. Kuralt I , ¶ 3. Moreover, the letter was a codicil as a matter of law because it made a specific bequest of the Montana property and did not purport to bequeath the entirety of the estate. See Official Comments to § 72-2-527, MCA ("when the second will does not make a complete disposition of…