Iles v. Iles

• Decision Date: 11 February 1947
• Citation: 29 So.2d 21,158 Fla. 493
• Parties: ILES v. ILES et al.
• Court: Florida Supreme Court

29 So.2d 21

158 Fla. 493

ILES v. ILES et al.

Florida Supreme Court

February 11, 1947

Appeal from Circuit Court, Putnam County; George William Jackson, judge.

P. B. Huff and Dowda & Millican, all of Palatka, for appellant.

H. E Merryday, of Palatka, for appellee.

CHAPMAN, Justice.

The appellant Pauline Iles, and Thomas J. Iles married on May 28, 1915, and lived together as husband and wife until the month of September, 1941, when they became estranged and lived apart. Subsequently the wife instituted suit and obtained a decree of divorce against her husband, Thomas J. Iles, on April 2 1942. On June 21, 1942, Thomas J. Iles was drowned and at the time of his death left neither spouse nor child surviving. He owned certain real property situated in Putnam County Florida, upon which the divorced persons resided until the separation. The parties likewise accumulated described personal property. Prior to his death Thomas J. Iles, on August 28, 1924, executed a will in the usual from and the divorced wife, Pauline Iles, filed in the Circuit Court of Putnam County a bill of complaint praying for a judicial construction or interpretation of the last will and testament of Thomas J. Iles, deceased.

Pertinent portions of the will are viz:

'III. Unto my beloved wife, Pauline Iles, in case she survives me, and not otherwise, I give, devise and bequeath all of the real estate which I may own, situated in the State of Florida, together with all the appurtenances thereunto belonging including all live stock, and farm, and orchard, machinery, implements and equipment, as well as all personal property of every nature and kind, including household furniture, silver ware, furnishings and equipments, had, used or kept therein.

'I further give and devise unto my said wife the proceeds of all life insurance policies in force and effect at the time of may decease, whether payable to myself or to my estate.

'The foregoing bequests shall be taken and accepted by my said wife in lieu of her dower or other interest which she may have in and to my said Estate.'

'V. In the event my said wife, Pauline, does not survive me and I leave lawful issue from my body surviving, then and in that event the whole of my said estate, real or personal, and wherever situated, I give, devise and bequeath unto such children, share and share alike, to have and to hold forever.'

VI. In case my said wife, Pauline, should not survive me and I leave no lawful issue of my body surviving, then I direct that my entire said estate shall pass as follows:

'(a) Unto my brother, Malvern W. Iles, of Davenport, Scott County, State of Iowa, I hereby give and bequeath such of my estate as is mentioned in Paragraph III of this, my Will; to have and to hold in his own right forever.

'(b) The remainder of my said estate I give, and bequeath unto Joe R. Lane, of Davenport, County of Scott, and State of Iowa, as Trustee, for the following uses and purposes, to-wit: My said Trustee shall, at his discretion, keep said Trust Estate invested in interest or dividend bearing securities and use therefrom, as required, for the education (Collegiate or High School, as my said Trustee may decide) of the children of my brother, the said Malvern W. Iles.

'And there being any surplus or unexpended balance of said Trust Estate remaining in my said Trustee's hands upon the completion of the education of said children as aforesaid, then I direct that any surplus or balance be distributed among the said children, share and share alike to have and to hold forever.

'In the event this provision (b) of my said Will shall become ineffective or inoperative by reason of the death of all of said children, then I direct that said Trustee Estate or the remaining part thereof be distributed and paid over to my said brother, Malvern W. Iles, to have and to hold in his own right forever.'

The Chancellor below, in construing the will, held that the several gifts to Pauline Iles under the third paragraph or division of the last Will and testament of Thomas J. Iles were conditioned upon her surviving the testator as his wife and not otherwise, and, as a consequence of the decree divorcing Pauline Iles and Thomas J. Iles, she became legally incapacitated to take any of the gifts enunciated in paragraph III supra; that upon the death of Thomas J. Iles all of the real and personal property of which he died seized...