dissenting.
The majority mischaracterizes property devised through a will, resulting in the erroneous application of Florida law and causing a disposition that is contrary to the intent of the testator as clearly expressed in his will. As the ruling of the probate court should be affirmed, I respectfully dissent.
*4261. The provision at issue in the second codicil states in pertinent part:
If I am still the owner of the Cozumel Condominium, Unit #806, located in Marco Island, Florida at the time of my death, not withstanding any provision in my Will to the contrary, that property shall pass to Anne Melican.
The key language in this provision is the phrase “[i]f I am still the owner... at the time of my death,” which, under Florida law, creates a conditional specific devise. See Morgan v. Cornell, 939 S2d 344-345 (Fla. Dist. Ct. App. 2006). In Morgan, the will provision at issue contained similar conditional language as that quoted above, and the Florida court was asked to determine whether the testator owned the property subject to the specific devise at the time of his death. The Florida court determined that the testator did own the property at death and thus “the ownership condition was fulfilled; and [the specific] devise validly passed. ...” Morgan v. Cornell, supra at 346. Therefore, the first issue to determine in the present case is whether the condition required for the specific devise to be activated was fulfilled, namely, whether the testator owned the Cozumel condominium at the time of his death, which requires us to look to Florida property law since that is where the land is situated. Veach v. Veach, 205 Ga. 185, 190 (1) (53 SE2d 98) (1949).
There is no dispute that the testator had entered into a valid sales contract for the sale of the condominium shortly before his death, although the closing had yet to take place. Florida courts have “long recognized that a contract to sell real property establishes the vendee ‘as the beneficial owner of the property, with the vendor retaining only naked legal title in trust for the vendee.’ [Cits.]” Demosthenes v. Girard, 955 S2d 1189, 1191 (Fla. Dist. Ct. App. 2007). In Estate of Sweet v. First Nat. Bank of Clearwater, 254 S2d 562, 563 (Fla. Dist. Ct. App. 1971), a testator devised to her son “ ‘all of the real property of which I may die seized or possessed or to which I may be entitled to at the time of my death.’ ” The issue before the Florida court was whether certain real property that was under a valid sales contract at the time of the testator’s death would still be considered as “seized or possessed” by the testator so that the proceeds would go to her son. Estate of Sweet v. First Nat. Bank of Clearwater, supra. The Florida court determined that, due to the doctrine of equitable conversion, the real property subject to the sales contract was no longer part of the testator’s real property at the time of her death and thus was not devised to her son pursuant to the will provision quoted above. Estate of Sweet v. First Nat. Bank of Clearwater, supra. Although the Estate of Sweet case has been superseded by statute on *427the issue of ademption, it is still good law on the issue of ownership of real property that is subject to a sales contract. See Demosthenes v. Girard, supra; Metropolitan Dade County v. Brothers of the Good Shepherd, 714 S2d 573, 574 (Fla. Dist. Ct. App. 1998); In re Estate of Skuro, 467 S2d 1098, 1099 (Fla. Dist. Ct. App. 1985). Contrary to the majority’s assertion, I am not applying Estate of Sweet and equitable conversion to prevent ademption in this case, but to ascertain the ownership of a property subject to a sales contract. The majority even acknowledges that Florida case law still relies on Estate of Sweet and equitable conversion to determine ownership issues “ ‘as between the vendor and the vendee.’ ” (Maj. Op. at 424)
Applying the law summarized above, when the testator in the present case placed the Cozumel condominium under a valid sales contract prior to his death, the beneficial ownership of the property was equitably converted to the purchaser under the sales contract. Therefore, at the time of the testator’s death and pursuant to Florida law, the testator no longer owned the real property. Thus, the ownership condition was not fulfilled and the specific devise fails, which makes any ademption issue moot. See Morgan v. Cornell, supra (stating that if testator is not considered the owner of the real property at the time of his death, then “the [ownership] condition would fail and the testator’s interest in the homes would become part of the residuary estate”).
Moreover, by applying Fla. Stat. § 732.606 (2010) to prevent ademption in the present case, the majority is disregarding the testator’s intent as expressed in his will, which is contrary to the legal principle embodied in Florida’s probate code that
[t]he intention of the testator as expressed in the will controls the legal effect of the testator’s dispositions. The rules of construction^ including § 732.606] . . . shall apply unless a contrary intention is indicated by the will.” (Emphasis supplied.)
Fla. Stat. § 732.6005 (1) (2010). “If the testator’s will expressly conditions the specific devise on owning the property at death, ademption cannot be avoided because ademption cannot be inconsistent with the testator’s intent.” Restatement (Third) of Property (Wills & Don. Trans.) § 5.2 cmt. h (1999). Therefore, by including the condition of ownership of the real property at the time of death, the testator clearly expressed his intent that Ms. Melican inherit only the actual real property and not any proceeds from the sale of such property. Contrary to the majority’s assertion that the testator’s intent is irrelevant, Florida law specifically provides that the testator’s intent as expressed in his will takes precedence over any statute *428that would effectuate a result contrary to this intent. Fla. Stat. § 732.6005 (1) (2010).
2. Even without the failure of the ownership condition as described above, the ruling of the probate court should be affirmed and the proceeds from the sale of the real property should not be distributed to Ms. Melican. Under Georgia law, if the item or interest contained in a will is real property, then the law of the situs of the property is to be applied. Veach v. Veach, supra. However, if the item or interest to be passed by a will is personal or moveable property, then the state of the testator’s residency will govern its disposition. Arrington v. Hosemann, 224 Ga. 592, 593 (163 SE2d 722) (1968).
As described above, under Florida law, once real property is placed under a valid sales contract, pursuant to “the doctrine of equitable conversion, the vendor’s interest thereupon becomes personalty. [Cits.]” Tingle v. Hornsby, 111 S2d 274, 276 (Fla. Dist. Ct. App. 1959). Therefore, at the time of the testator’s death, which is the relevant time for purposes of characterizing items contained in a will, the testator’s interest in the Cozumel condominium had already been converted to personal property. Thus, when the Georgia probate court began its enforcement of the dispositions in the will, the testator’s interest in the Cozumel condominium was placed on his list of personal property, not his list of real property. Consequently, since the testator’s interest in the Cozumel condominium at the time of his death was characterized as personal property, the Georgia probate court was obligated to apply the law of Georgia, as it is the state of the testator’s residency. Only if the testator’s interest in the Cozumel condominium was considered real property at the time of his death would we apply Florida law and thus its nonademption statute.
Pursuant to OCGA § 53-4-66, “a specific testamentary gift is adeemed or destroyed, wholly or in part, when the testator for any reason does not own the subject of such gift at death.” Although OCGA § 53-4-67 specifies three exceptions to the ademption rule quoted above, none of these exceptions apply in the present case and Ms. Melican has not attempted to argue that any of them do apply. As explained above, since the property was subject to a valid sales contract, the testator did not own the Cozumel condominium at the time of his death. Therefore, under Georgia law, the specific devise of the condominium to Ms. Melican has been adeemed.
In summary, as expressed in Division 1 of this opinion, the testator, by including the phrase “[i]f I am still the owner of the Cozumel Condominium ... at the time of my death,” placed an express condition on the specific devise to Ms. Melican. By placing the Cozumel condominium under a valid sales contract, the testator relinquished his ownership interest in the real property prior to his *429death, thereby causing the express ownership condition of the devise to fail. Since the condition was not fulfilled, the specific devise to Ms. Melican was never triggered and thus any ademption issue is moot as it would arise only if there has been a valid devise. However, even if the above analysis is incorrect, the specific devise to Ms. Melican would he adeemed since the testator’s interest in the Cozumel condominium at the time of his death was characterized as personal property, requiring the application of OCGA § 53-4-66. In any event, therefore, the ruling of the probate court is correct and should be affirmed.
Decided May 31, 2011 Reconsideration denied June 27, 2011. Troutman Sanders, Alison A. Grounds, Douglas D. Salyers, Wayne R. Vason, W. Allen Separk, for appellant. Roy E. Barnes, Allison B. Salter, Dupree & Kimbrough, Hylton B. Dupree, Jr., Thomas H. Rogers III, for appellee.I am authorized to state that Justice Benham and Justice Thompson join in this dissent.