Easterlin v. Easterlin

• Decision Date: 21 November 1911
• Citation: 56 So. 688,62 Fla. 468
• Parties: EASTERLIN v. EASTERLIN.
• Court: Florida Supreme Court

56 So. 688

62 Fla. 468

EASTERLIN v. EASTERLIN.

Florida Supreme Court, Division A.

November 21, 1911

Appeal from Circuit Court, Alachua County; J. T. Wills, Judge.

Action by Juanita Easterlin, by her next friend, Joe O'Bannon against Ada Easterlin, administratrix. Judgment for defendant, and plaintiff appeals. Affirmed.

Syllabus by the Court

SYLLABUS

At the common law the marriage of a man and the birth of a child subsequent to the making of a will by him had the effect of revoking such will, but, when the will was made by a man already married, the birth of a child subsequent to the making of the will did not work a revocation of such will. In the absence of a statute, this principle of the common law must be held to be the law in this state.

COUNSEL Chris Matheson, for appellant.

E. C F. Sanchez and W. E. Baker, for appellee.

OPINION

SHACKLEFORD J.

Juanita Easterlin, by her next friend, Joe O'Bannon, filed her petition in the county judge's court, sitting as a court of probate, in and for Alachua county, in which she alleged that George W. Easterlin, her father, on the 12th day of January, 1909, executed a certain instrument in writing purporting to be his last will and testament, and afterwards on the 16th day of December, 1910, departed this life leaving as his heirs at law and legal representatives the petitioner and Mrs. Bessie Godwin, his daughters, and Ada Easterlin, his widow. It is further alleged therein that the testator bequeathed and devised all of his estate, both real and personal, to his daughter Bessie Godwin, Ada Easterlin, his widow, and to Callie Easterlin Fournia, his niece, leaving nothing to the petitioner, and making no provision for her whatever. The petition further alleges that the petitioner was born on the 28th day of July, 1910, after the making of the will, by reason of which fact, coupled with the further fact that no provision was made in the will for the petitioner, it is claimed that such instrument, purporting to be the last will and testament of George W. Easterlin, deceased, was 'revoked by act of law, and therefore null and void.' It is further alleged that such instrument was admitted to probate on the 22d day of December, 1910, and that letters testamentary were issued to Ada Easterlin, the person appointed in such instrument as the executrix thereof. The petitioner prayed for a revocation of the will and for general relief. A copy of the will was attached to the petition as an exhibit and made a part thereof. We copy the following paragraphs of such will:

'And as to my worldly estate and all the property, real, personal or mixed, of which I shall die seized or possessed, or to which I shall be entitled at the time of my decease, I devise, bequeath and dispose thereof in the manner following, to wit:

'1st: My will is, that all my just debts and funeral charges shall, by my executrix hereinafter named, be paid out of my estate, as soon after my decease as shall by her be found convenient.

'2nd: I give, devise and bequeath to my daughter, Bessie Godwin, the following described real estate lying and being situated in Alachua County and State of Florida, to wit: The southwest quarter of the northeast quarter and west half of the southeast quarter and southwest quarter of southeast quarter of northeast quarter and north half of northeast quarter of northwest quarter of Section Thiry-two, Township Seven, South of Range Eighteen east.

'3rd: I give, devise and bequeath to my niece, Callie Easterlin Fournia, daughter of Charles B. Easterin, deceased, all the following described real estate lying and being situated in the County of Alachua and State of Florida, to-wit: The Central one-third of the southwest quarter of Section twenty-eight, township seven, south of range eighteen east, and the central one-third of the northwest quarter of section thiry-three, township seven, south of range eighteen east, being the part of the Richardson land purchased by me from Sam Richardson.

'4th. All the rest and residue of my extate, real, personal or mixed of which I shall die seized and possessed, or to which I shall be entitled at time of my decease, I give, devise and bequeath to my beloved wife, Ada Easterlin.'

To this petition Ada Easterlin, as executrix, interposed a demurrer upon the following grounds:

'(1) That there is no sufficient ground alleged in said petition for revoking the will of the said George W. Easterlin.

'(2)...