Arnold v. Wells

• Decision Date: 16 December 1930
• Citation: 131 So. 400,100 Fla. 1470
• Parties: ARNOLD v. WELLS et al. (two cases).
• Court: Florida Supreme Court

131 So. 400

100 Fla. 1470

ARNOLD v. WELLS et al. (two cases).

Florida Supreme Court

December 16, 1930

Commissioners' Decision.

Suit by Caroline Wells, and others, against Frank Arnold, Cassie Ethel Arnold, and others. Decree for complainants, and defendants named separately appeal.

Affirmed and cause remanded.

Syllabus per Whitfield, J.

Where a testatrix devises real estate to her grandson 'during his natural life and at his death to the heirs of his body and their heirs and assigns forever, if he should die without heirs of his body then to my heirs forever,' the heirs of the testatrix and not the heirs of the life tenant take the fee-simple estate at the death of the life tenant 'without heirs of his body.' Appeal from Circuit Court, Hillsborough County; F. M. robles, judge.

COUNSEL

Macfarlane, Pettingill, Macfarlane & Fowler and Dickenson & Lake, all of Tampa, for appellants.

Drumright & Carswell, of Tampa, for appellees.

OPINION

DAVIS C.

Samintha Campbell devised to her grandson Campbell Elmore Arnold certain real estate 'To have and hold the same with the profits, rents and income for his use and benefit for and during his natural life and at his death to the heirs of his body and their heirs and assigns forever, if he should die without heirs of his body then to my heirs forever.'

Testatrix at the time of her death left surviving her three daughters, Caroline Wells, Samintha Law and Margaret Snow, and her grandson Campbell Elmore Arnold, son of a deceased daughter, as her only heirs.

Campbell Elmore Arnold went into possession of the premises and later died, leaving surviving him his widow Cassie Ethel Arnold and his father Frank Arnold, who was the son-in-law of the testatrix, but no children or other descendants. The said Caroline Wells, Samintha Law and Margaret Snow also survived the grandson Campbell Elmore Arnold.

After entering into possession of the property, the grandson Campbell Elmore Arnold made a ninety-nine year lease to William L. and Marie Eliot Van Dyke, which lease with the consent of the lessor was assigned to Tibbetts Corner, Inc.

A bill was filed in the circuit court of Hillsborough county by the three daughters joined by their respective husbands, wherein they prayed that the court decree that they are the owners in fee simple of the said lands, and that they became vested with title thereto immediately upon the death of the said Campbell Elmore Arnold; that possession of the property be delivered to them; and that their title to the same be decreed to be free and perfect.

Frank Arnold, one of the defendants, filed a separate demurrer to the bill and also exceptions to a portion of it. The defendant Cassie Ethel Arnold also filed a separate demurrer, and the defendants William L. Van Dyke and Mary Eliot Van Dyke, his wife, and Tibbetts Corner, Inc., filed a joint and several demurrer to the bill. All of the demurrers were overruled as were also the said exceptions of the said Frank Arnold, and the several defendants thereupon filed answers to the bill of complaint, to which answers exceptions were filed by the complainants. At a hearing upon the said exceptions to the answers the exceptions were sustained and the several defendants, through their counsel refusing to plead further in the cause, a final decree was entered in favor of the complainants.

Frank Arnold and Cassie Ethel Arnold entered separate appeals, but it is stipulated here that both appeals shall be submitted and considered on the transcript filed herein.

It was and is the contention of the complainants Caroline Wells, Samintha Law and Margaret Snow that the grandson took only a life estate in the property and that when he died without heirs of his body, the title to the said property then became vested in them, as the only heirs of testatrix.

It was the contention of Cassie Ethel Arnold that the said grandson took a fee-simple title to the property and that when he died leaving no children she, as his heir at law, became and is the owner of the fee.

Frank Arnold, the son-in-law of testatrix and the father of Campbell Elmore Arnold, contends that the grandson took but a life estate in the property under the particular devise to him and that, at the time this life estate vested in him, an estate in remainder became vested in the complainants as daughters and heirs at law of testatrix and in the descendants of the deceased daughter who left surviving her as her heirs at law the said Campbell Elmore Arnold, her son, and the said Frank Arnold her husband, and that, upon the termination of the life estate in Campbell Elmore Arnold, the fee-simple title to said property became vested in possession in the three complainants, each having an undivided one-fourth share or part, and in the said Frank Arnold, who as one of the heirs of his deceased wife, the daughter of testatrix, had an undivided one-eighth share or part, and in Cassie Ethel Arnold, who as widow and sole heir at law of Campbell Elmore Arnold, the other heir of said deceased daughter of testatrix, had an undivided one-eighth share or part.

It will be seen that a decision in this case must depend upon the construction to be placed upon the above-quoted provision of the will. The primary question for us to determine is, What estate did Campbell Elmore Arnold take in the property? The will on its face indicates that it was to be for life, but it also says that at his death it should go 'to the heirs of his body and their heirs and assigns forever.'

Now, according to the common law, under the well known rule in Shelley's Case, when property is left by will to one for life, remainder to the heirs of his body, the estate of the first taker is enlarged to an estate tail. That part of the will in the instant case which expressly indicates the interest devised to Campbell Elmore Arnold is plain. If it had stopped with the words 'To have and hold the same with the profits, rents and income for his use and benefit for and during his natural life,' there would be no room for doubt that he only took a life estate, under the clause devising the particular interest or estate to him. But it is argued here on behalf of Cassie Ethel Arnold that the addition of the words 'and at his death to the heirs of his body and their heirs and assigns forever,' notwithstanding any expressed intention of the testatrix, raised the life estate of the said Campbell Elmore Arnold to an estate tail, and that estates tail having been abolished in this state, by applying the rule in Shelley's Case, Campbell Elmore Arnold took a fee-simple estate.

Ordinarily the words 'heirs of the body' are words of limitation and not of purchase (1 Minor, Real Property, 843; Williams, Real Property [22d Ed.] 352; 24 R. C. L. 896; Watts, Adm'r, v. Clardy, 2 Fla. 369), and but for our statute abolishing estates tail, the will of testatrix, under the rule in Shelley's Case, would have created an estate tail (1 Minor, Real Property 217; 1 Washburn, Real Property [6th Ed.] 89-90; Williams, Real Property [22d Ed.] 352; Russ v. Russ, 9 Fla. 105, text 128) even with the superadded words 'and their heirs and assigns forever.' Hileman v. Bouslaugh, 13 Pa. 344, 53 Am. Dec. 474; Ex parte McBee, 63 N.C. 332.

The rule in Shelley's Case is in force in this state and may be applied in cases that are not within the inhibitions of section 5481(3616), Compiled General Laws of Florida 1927. Under this rule, for the estate of the life tenant (Campbell Elmore Arnold) to be enlarged to a fee-simple estate, it should have been limited over to the heirs general of the life tenant and not to the 'heirs of his body.' Williams, Real Property (22d Ed.) 352; Russ v. Russ, supra, text 128.

In Florida we have no statute, as have some of the states, converting what would be an estate tail as they existed under the common law into an estate in fee simple; but we have a statute abolishing estates tail which reads as follows:

'No real estate shall be entailed in this State.' Section 5481(3616), Compiled General Laws of Florida 1927.

Under this statute we find no authority for enlarging by construction the life estate expressly given by the will to Campbell Elmore Arnold to a fee-simple estate.

It is not argued here that, in the light of the statute just quoted, the words 'and at his death to the heirs of his body and their heirs and assigns forever,' may be regarded as surplusage, and that the grandson took a fee-simple title to the property by virtue of chapter 5145, Laws of Florida, 1903, as amended (section 5669, Compiled General Laws of Florida 1927). Indeed, if such a contention were made, we would have to hold that the instrument on its face shows that it was not the intention of the testatrix to vest the fee-simple title in her grandson Campbell Elmore Arnold; and that it was her intention that her kin and not some one alien to her blood should be vested with the fee-simple title.

This court has held repeatedly that, in the construction of a will, the intention of the testator as therein expressed shall prevail over all other considerations, if consistent with the principles of law. To this great rule in the exposition of wills all others must bend. Brown v. Harris, 90 Fla. 540, 106 So. 412; Cole v. Cole, 88 Fla. 347, 103 So. 78; Rewis v. Rewis, 79 Fla. 126, 84 So. 93; Dean v. Crews, 77 Fla. 319, 81 So. 479; Sorrells v. McNally, 89 Fla. 457, 105 So. 106.

Looking at the will as a whole, it appears to have been the intention of the testatrix to give to her grandson a life estate in the property, and that thereafter it should be enjoyed by those of her blood.

The rule in Shelley's Case cannot apply to the will in the instant case, because of our statute prohibiting the entailing of real estate, and...