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53. Is the brother correct?
A dispute has arisen in the administration of the woman's estate about the foreclosure sale surplus proceeds. The woman's brother contends that he is now entitled to those proceeds.
In her duly probated will, which she had executed before granting the mortgage to the bank, the woman specifically devised the land to a charity. The remainder of the woman's estate was given by the will to her brother, her sole heir.
A woman owned land subject to a mortgage held by a bank. She fell behind in her mortgage loan payments, and the bank properly initiated foreclosure proceedings. The land was sold at a foreclosure sale that resulted in surplus proceeds to which the woman was entitled. Before payment of the surplus proceeds to her, she died testate.
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A is incorrect. Whether the brother or the charity prevails depends on whether the woman owned the land when she died. How the woman lost ownership of the land, whether the foreclosure was voluntary or involuntary, is irrelevant.
B is incorrect. The woman's original intent for the land is irrelevant to determining who is entitled to the foreclosure sale proceeds. When a will specifically disposes of land not owned by the testator at death, the bequest to the specific legatee adeems (fails).
D is incorrect. The fact that the will was written before the mortgage was granted is irrelevant to the question of ademption.