In re Estate of Hegel

Francis E. Sweeney, Sr., J. In this case, we must determine whether an ademption has occurred where specifically devised property was sold to a third party prior to the testator’s death under a durable power of attorney. Since we find that the devise has been adeemed, we reverse the decision of the court of appeals. The principle of ademption refers to “a taking away” of a specific bequest or devise and occurs when the object of the legacy ceases to exist. Bool v. Bool (1956), 165 Ohio St. 262, 267, 59 O.O. 356, 358, 135 N.E.2d 372, 376; In re Estate of Mellott (1954), 162 Ohio St. 113, 115, 54 O.O. 53, 54, 121 N.E.2d 7, 8. In Bool, we held, at paragraph one of the syllabus, that “[w]here the subject of a specific bequest has been extinguished in the lifetime of a testator, such bequest is adeemed, and the designated beneficiary thereof is wholly deprived of it or any property in lieu of it, in the absence of a contrary expression in the will.” Since the Bool decision, the General Assembly has enacted R.C. 2107.501(B), which sets forth a narrow exception to the ademption doctrine for the sale of specifically devised or bequeathed property made by a guardian. According to this statute, “[i]f specifically devised or bequeathed property is sold by a guardian, * * * the specific devisee or legatee has the right to a general pecuniary devise or bequest equal to the net proceeds of sale * * (Emphasis added.) Thus, the specific devisee or legatee’s rights are protected and are not extinguished where the guardian sells specifically devised or bequeathed property. R.C. 2107.501 was modeled after former Uniform Probate Code Section 2-608. However, this Uniform Probate Code section, amended in 1987 and in 1990, and renumbered as Section 2-606, was expanded to protect specifically devised or bequeathed property sold by attorneys-in-fact acting under a durable power of attorney. Thus, under current Uniform Probate Code Section 2-606(b), if specifically devised property is sold “by an agent acting within the authority of a durable power of attorney for an incapacitated principal, * * * the specific devisee has the right to a general pecuniary devise equal to the net sale price * * *.” (Emphasis added.) 8 U.L.A. (1996 Supp.) 171. To date, the General Assembly has not adopted Uniform Probate Code Section 2-606. Instead, R.C. 2107.501 is limited in its scope to specific devises or bequests sold by a guardian and does not apply to sales by attorneys-in-fact. Had the General Assembly intended for the statutory exception in R.C. 2107.501 to apply to agents acting under the authority of a durable power of attorney, in addition to guardians, it could have amended the statute to include reference to powers of attorney, similar to the language contained in amended Uniform Probate Code Section 2-606. However, it chose not to do so. [478] Despite the Bool decision and the clear language of R.C. 2107.501(B), the majority of the court of appeals focused on the testator’s intent and held that the specific bequest had not been adeemed. Although the majority recognized that Ohio has not yet adopted Uniform Probate Code Section 2-606, it decided to treat those acting under powers of attorney the same as guardians. We disagree with this interpretation and are unwilling to read into the statute language that the General Assembly has decided not to specifically include. Furthermore, we do not view those acting under powers of attorney the same as guardians. Guardians are appointed by the probate court and are subject to the court’s control, whereas attorneys-in-fact have much more freedom and can act without court approval as the principal’s “alter ego.” See R.C. 2111.01(A), 2111.49, 2111.50 (acts by guardians); cf. R.C. 1337.09(C) (durable power of attorney). The statutory language of R.C. 2107.501(B) is clearly limited to the sale of property by guardians and does not protect specifically devised property sold by attomeys-in-fact. Thus, as applied to this case, when Boettger, as attorney-in-fact, sold the testator’s residence and its contents prior to the testator’s death, Boettger adeemed her specific devise and lost her right to the devised property. Accordingly, we reverse the judgment of the court of appeals and reinstate the decision of the probate court. Judgment reversed. Moyer, C.J., Douglas and Cook, JJ., concur. Resnick and Stratton, JJ., separately dissent. Pfeifer, J., dissents.