Brown v. Avery

• Citation: 58 So. 34,63 Fla. 376
• Parties: BROWN v. AVERY et al.
• Decision Date: 20 February 1912
• Court: United States State Supreme Court of Florida

58 So. 34

63 Fla. 376

BROWN v. AVERY et al.

Florida Supreme Court

February 20, 1912

On Rehearing, March 26, 1912.

Appeal from Circuit Court, Escambia County; J. Emmett Wolfe, Judge.

Bill in equity by Elma G. Brown against Louise Avery, by her next friend, A. M. Avery, and others. From an order sustaining a demurrer to the petition, complainant appeals. Affirmed.

Syllabus by the Court

SYLLABUS

Section 2272 of the General Statutes of 1906 provides that every last will and testament disposing of real estate shall be attested and subscribed in the presence of the testator by two or more witnesses, and section 2273 provides that 'no such devise or disposition of lands, tenements or hereditaments, or any part or cause thereof, shall be revocable by any other will or codicil, unless the same be in writing and made as aforesaid.' Held, that the provision in such section 2273 has no applicability to personal property, even though such personal property be embraced in a will devising real estate.

Section 2274 of the General Statutes of 1906, providing that 'all wills of personal property shall be in writing and signed by the testator or some other person in his presence, and by his express direction,' is practically declaratory of the rule already existing at common law. No subscribing witnesses thereto are requisite.

A will executed in this state, purporting to devise both real and personal estate within this jurisdiction, but with no subscribing witnesses thereto, is valid as to the personalty if valid in other respects, though inoperative as to the real estate.

A demurrer admits the truth of all such matters of fact as are sufficiently pleaded, but allegations of mere conclusions of law are not admitted by a demurrer, for the law is to be ascertained by the court.

A demurrer does not admit as true allegations which the law would not allow to be proved.

As a general rule, parol evidence is inadmissible for the purpose of showing that an instrument purporting to be a will, fair and regular on its face, properly executed as such, was not intended to operate as a will.

On Rehearing.

Where an instrument in writing, which states that it is made as the last will and testament of the testatrix, expresses a purpose to change the disposition of property made by a previous will, and makes specific and definite disposition of property without ambiguity or imperfection in its terms, it is, when duly signed by the testatrix, a valid will of the personal property, even though it contains ineffectual provisions relating to real estate because the instrument was not attested by witnesses as is required for wills of real estate.

The testamentary intent expressed in a valid will of personal property may not be impugned by mere allegations that the instrument was not intended as a will, and that it was not signed with testamentary intent, but was intended merely as a memorandum to enable the attorney to prepare another will, at least in the absence of a clear and positive showing that the instrument impugned was lawfully executed to effect a different or collateral purpose wholly inconsistent with the intent expressed in the instrument; there being no suggestion of a change of testamentary intent, or of fraud, mistake imposition, incompetency, illegality, or other infirmity in the instrument or in the making and execution of it.

Even though a testatrix may have contemplated the execution of a will to be prepared by her attorney, if the instrument signed by her as her will, and sent to her attorney to use in preparing a more formal document, is a sufficient will of personalty, the mere fact that another will was prepared and was in her possession, so that she could have executed it before fore her death, would not affect the validity of the instrument signed.

COUNSEL Blount & Blount & Carter, for appellant.

Jones &amp Pasco, for appellees. The following instrument, with due proof of the execution thereof, was filed with the county judge of Escambia county and offered for probate as the last will and testament of Emily C. Wright, deceased:

'I, Emily C. Wright, of the city of Pensacola, state of Florida, being of sound mind and memory, do make and publish this, my last will and testament, revoking all others:

'(1) I give and bequeath to Cornelia Scriven Brown all of my stock in the First National Bank of Pensacola, and direct that the same remain in the possession and control of the persons hereinafter designated as my executors--of my last will and testament, until she is twenty-one (21) years of age, and that all of the earnings and dividends of the said stock shall be paid to her mother directly for her education and maintenance until she is eighteen (18) years of age and thereafter directly to her.

'(2) I give and bequeath to Cornelia Scriven Brown all of my silverware of every description, to be handled and used by her until she is eighteen (18) years of age, in such manner as said E. G. Brown and R. M. Cary executors shall direct.

'(3) I give and bequeath to Henry Wright Brown five thousand ($5,000.00) dollars to be paid to him when he attains the age of twenty-one (21) years, but to be held in trust and handled for him until that time by the said executors.

'The foregoing bequests 1, 2, 3, to Henry Wright Brown and Cornelia Scriven Brown are upon condition that they be allowed to, and do remain in their mother's custody and care until they respectively become twenty-one (21) years of age. The violation of this promise shall work a forfeiture in the mother's favor--and it is my wish that their mother make a will designating a guardian for them in the event of her death before their majority.

'(4) I give, bequeath and devise to my sister, Mrs. Marian E. Caldwell, the lot, together with the improvements thereon on Tarragona street in the city of Pensacola, which I received from my father's estate to belong to her in fee simple.

'(5) If my servant, Bella Morris, remains in my employment until my death, I direct that she be paid the sum of two hundred ($200.00) dollars.

'(6) All the rest and residue of my property, real, personal, and mixed, I give, devise and bequeath in fee simple to my adopted daughter Elma Gertrude Brown, for the term of her natural life, and upon her death such property shall go in fee simple to her children, the said Cornelia Scriven Brown and the said Henry Wright Brown share and share alike, to be possessed, managed and taken care of by a trustee to be designated by her in her will, failing which action by her, then in the care and custody of a person not of kin to them, to be legally appointed; but this provision shall not have the effect of interfering with the use of the said property by the said Elma Gertrude Brown, and she is to have the right to sell parts thereof and reinvest the proceeds from time to time, with the approval of the executors hereinbefore provided for.

'(7) I hereby appoint as executors of this my last will and testament, R. M. Cary and E. G. Brown to serve without bond.

'In witness whereof, I have hereunto signed my name on the 7th day of January A. D. 1911.

Emily C. Wright.

'The foregoing instrument was executed in our presence upon the day and year above written by the said Emily C. Wright, and, at her request, we hereunder sign our names as attesting witnesses in her presence and in the presence of each other.

'W. A. Ray.

'A. M. Avery, Jr.'

At the same time the following paper was also offered for probate as the last will and testament of such decedent:

'I, Emily C. Wright, of the county of Escambia, state of Florida, do make this my last will and testament on this the twenty-seventh day of June, 1911.

'It was my intention to leave most of my estate to my adopted daughter Elma Gertrude Brown, but as she has offended my feelings and acted in a way repugnant to my feelings of propriety, I leave to her one hundred dollars per month and a house, either one of the East Gregory St. houses or one of the Spring St. houses--whichever she chooses.

'My First National Bank stock and my house corner of Loyd and Barcelona St. I leave to Cornelia Scriven Brown, the income from bank stock to be paid for her maintenance and education to her guardians until she is eighteen years of age after that directly to her--she must before marrying be made a free dealer.

'I leave one thousand dollars for my funeral expenses and a slab, similar to that in cemetery over my husband.

'To Henry Wright Brown, I leave five thousand to be paid him when of age--also want him to be well educated at expense of estate.

'To Louise Avery if she continues to live with me I leave ten thousand worth of mortgages--the principal not to be paid her until she is 21 yrs. of age.

'After both Brown children are of age, any residue to be equally divided between them.

'To my sister Mrs. Marian Caldwell I leave the brick building on Tarragona St. inherited from my father, A. L. Avery.

'To Cornelia Scriven Brown I leave my silverware, china and all household furniture.

Emily C. Wright.'

The foregoing document was produced and offered for probate by John C. Avery, Esq., and was inclosed in an envelope upon which the following indorsement appears:

'J. C. Avery, Atty.,

'American National Bank Building, City.'

At the same time the following affidavit was filed:

'State of Florida, Escambia County.

'Before the undersigned personally appeared John C. Avery, who being duly sworn, deposes and says that he verily believes that the writing herewith exhibited as the last will and testament of Emily C. Wright, deceased, date June 27, 1911, is the true last will and testament of the said deceased, and that he has no interest under the said will, and the same is in...