Dean v. Crews

• Decision Date: 29 March 1919
• Citation: 81 So. 479,77 Fla. 319
• Parties: DEAN et al. v. CREWS et al.
• Court: Florida Supreme Court

81 So. 479

77 Fla. 319

DEAN et al. v. CREWS et al.

Florida Supreme Court

March 29, 1919

Appeal from Circuit Court, Marion County; W. S. Bullock, Judge.

Suit for partition by A. B. Crews and another against Annie Hollandsworth Dean and others. A demurrer to the bill of complaint was overruled, and defendants appeal. Reversed.

Additional Syllabus by Editorial Staff

Syllabus by the Court

SYLLABUS

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.

An 'executory devise' is such a limitation of a future interest in lands or personal chattels as the law admits in the case of a will, though contrary to therules of limitation in conveyances at common law.

A bequest in the words 'upon the youngest of my four children arriving at the age of twenty-one years I give and bequeath, share and share alike, to my said four children all my real and personal property of whatever kind or nature not heretofore disposed of.' Held, to take effect when and at the time the youngest of the four children arrives at the age of 21 years.

COUNSEL H. M. Hampton, of Ocala, and H. N. Randolph, of Atlanta, Ga., for appellants.

John U Bird, of Clearwater, and Davis Moon, of Dunnellon, for appellees.

OPINION

WHITFIELD J.

In a suit for the partition of land a demurrer to the bill of complaint was overruled, and the defendants appealed. It appears that Charles H. Hollandsworth died testate on January 20, 1907, leaving a widow, three daughters, Annie, Estel, and Alice, and one son, C. W Hollandsworth; that subsequent to the death of the testator his daughter Annie married J. W. Dean; that Alice married E A. Turnipseed; that on June 21, 1909, C. W. Hollandsworth died intestate and unmarried, leaving as his heirs his three sisters and his mother; that Estel married A. B. Crews, and that Estel died intestate on August 22, 1910, without issue leaving her husband her sole heir at law; that the youngest daughter, Alice, arrived at the age of 21 years on July 14, 1916. Other allegations need not be stated.

The question to be determined is the rights of the respective parties under the last clause of bequest in the will of Charles H. Hollandsworth, the will being as follows:

'Know all men by these presents; that I Charles H. Hollandsworth being of sound mind and disposing memory, do hereby make this my last will and testament, revoking and rescinding any and all wills heretofore made.

'That after paying all my just debts, including those of my last illness and funeral, and the cost of a suitable stone to mark my last resting place, which stone shall not cost more than the sum of one hundred and twenty-five dollars, I give and bequeath to my daughters Annie, Ester and Alice each the sum of one thousand dollars to be paid out of the cash on hand at the time of my death, or personal property owned by me, at that time, said sums to be paid to my said daughters at such time as the youngest shall arrive at the age of twenty-one years.

'That if when said youngest daughter shall have reached the age of twenty-one years, there shall remain in the hands of the executor of this will more than the sum of three thousand dollars, then the surplus up to one thousand dollars shall be paid to my son C. W. Hollandsworth, and the surplus, if any, over that shall be distributed equally between my four children above mentioned.

'Upon the youngest of my four children arriving at the age of twenty-one years I give and bequeath, share and share alike, to my said four children all my real and personal property of whatever kind or nature not heretofore disposed of. The rents and profits of said property, up to the time that said youngest child shall have arrived at the age of twenty-one, shall be applied to the maintenance and education of my three daughters above mentioned.

'I hereby appoint Charles Y. Miller executor of this my last will and testament: In witness whereof I have hereunto set my hand this 29th day of December, A. D. 1906.

'C. H. Hollandsworth.'

In the construction of a will, the intention of the testator, as therein expressed, shall prevail over all other considerations, if consistent with the...