In Re Stephan's Estate, in Re

• Decision Date: 27 February 1940
• Court: Florida Supreme Court
• Parties: In re STEPHAN'S ESTATE. v. GERHART et al. STEPHAN et al.

194 So. 343

142 Fla. 88

In re STEPHAN'S ESTATE.

STEPHAN et al. v. GERHART et al.

Florida Supreme Court, Division B.

February 27, 1940

Rehearing Denied March 19, 1940.

Proceeding in the matter of the estate of John Stephan, deceased pursuant to petition of Samuel Stephan, Norman Stephan Stephan C. Grant, Harry S. Grant and U.S. Grant, claiming as heirs at law of deceased, which was opposed by Harry M Gerhart, Ephrata National Bank, as executors and trustees of the last will and testament of Mary Stephan, deceased, and Vera Garman, as executrix of the last will and testament of John Stephan. From an order of the circuit court affirming an order of the county judge construing an order of of the will the petitioners appeal.

Order affirmed.

BROWN and THOMAS, JJ., dissenting. Appeal from Circuit Court, Dade County; Worth W. Trammell, judge.

COUNSEL

Jesse Grantham, George W. English, Jr., and J. H. Lathero, all of Fort Lauderdale, for appellants.

Wiseheart & Wiseheart, of Miami, for appellees.

OPINION

WHITFIELD, Justice.

The last will and testament provides:

'I give, devise and bequeath to my wife, Mary Stephan, all my property, real, personal and mixed, of what nature and kind soever, I may die possessed of, she to receive the rents, incomes and profits thereof, for and during the term of her life, and at her death, I hereby order and direct that all money due from John B. Garman from papers held by me, I give, devise and bequeath to John B. Garman and Savilla Garman, their heirs and assigns forever.'

Under the statute, section 24 of the 1933 Probate Act, Ch. 16103, Acts of 1933, section 5480(1), C.G.L.Perm.Supp.,

'The real and personal property of an interstate shall descend * * *

'1. To the surviving spouse and lineal descendants, the surviving spouse taking the same as if he or she were one of the children.

'2. If there be no lineal descendants, to the surviving spouse.'

A testator may be intestate as to all of his estate or as to a part thereof. The statute of descents applies to any property of a decedent not lawfully disposed of by will or otherwise as provided by law.

In this case the residue of testator's estate, after the wife's life estate, was not disposed of by will except the specific bequest to the Garmans; and as to such estate as remained after the wife's life estate, except that bequest to the Garmans, was intestate property which at testator's death passed under the statute of descents to his widow as his heir, he leaving no lineal descendants.

Under the Massachusetts statute of descents the surviving widow took the whole estate of the decedent husband only 'if the deceased leaves no issue and no kindred * * *.' Title II, Chapter 190, section 1(3), General Laws of Massachusetts (Tercentenary Edition, 1932). Under the Florida statute of descents the surviving spouse takes the decedent husband's entire estate if there are no lineal descents of the deceased husband. In Bragg v. Litchfield et al., 212 Mass. 148, 98 N.E. 673, the residue of testator's estate was intended to be disposed of by the terms of the will, and the widow was not an heir at law of the testator while he had 'kindred' as in that case.

Decree affirmed.

TERRELL, C.J., and BUFORD and CHAPMAN, JJ., concur.

BROWN and THOMAS, JJ., dissent.

DISSENTING

BROWN Justice (dissenting).

This is an appeal from an order of the Circuit Court affirming an order of the County Judge construing the provisions of a will.

Certain persons, as heirs at law of John Stephan, deceased, filed their amended petition in the County Judge's Court of Dade County, praying that the Court construe the last will and testament of John Stephan, deceased.

The amended petition contains the facts relied on, all of which were admitted by the answer except (1) the allegation that petitioners are heirs at law of John Stephan, deceased, about which the answer stated defendants were not advised, and (2) the allegation that Mary Stephan took only a life estate under the will of John Stephan, deceased, and that petitioners, as heirs at law of John Stephan, deceased, are entitled to the remainder after termination of the life estate to Mary Stephan, to which the answer stated that the petitioning heirs are not entitled to any property of deceased, under the laws of the State of Florida.

On October 4, 1919, John Stephan published his will, which contained the following provision: 'All the rest, residue and remainder of my estate, real, personal and mixed, of what nature and kind soever, I may die possessed of, I give, devise and bequeath to my wife, Mary A. Stephan, to her heirs and assigns forever.'

Subsequently, on July 28, 1933, John Stephan published his last will and testament, the principal clause of which was as follows: 'I give, devise and bequeath to my wife, Mary Stephan, all my property, real, personal and mixed, of what nature and kind soever, I may die possessed of, she to receive the rents, incomes and profits thereof, for and during the term of her life, and at her death, I hereby order and direct that all money due from John B. Garman from papers held by me, I give, devise and bequeath to John B. Garman and Savilla Garman, their heirs and assigns forever.'

John Stephan died March 9, 1934, in Ephrata Borough, Lancaster County, Pennsylvania. He left surviving him a widow, but no children. His estate consisted in the main of improved real estate in the City of Miami. After his death, the first will was duly probated in Pennsylvania and Florida. Subsequently the second will was found, probate of the first will was revoked, the second will was duly probated in Pennsylvania and Florida, and Vera Garman appointed Executrix in Pennsylvania and Ancillary Executrix in Florida. Before discovery of the second will, Mary Stephan, widow of John Stephan, died, leaving a last will and testament in which she gave the residue of her estate, in trust, for the benefit of Camp Silver Bell for the perpetual care and upkeep of the Stephan Spiritualists Memorial located on the grounds of the Ephrata Park Association, with other gifts over in case of dissolution.

The County Judge entered his order construing the will of John Stephan which, after reciting the facts, contained the following:

'By the Will, the testator, except for the disposition of the Garman debt, has failed to indicate what shall be done with the residue of his estate after the death of his wife, and as to such residue it must therefore be concluded that he died intestate; the residue of said estate should therefore pass to the widow's estate in accordance with the laws of descent and distribution of this State and it is,

'Therefore, ordered and adjudged that the Ancillary Executrix herein, as quickly as convenient, file her final report and turn over all of the assets of this estate to the Executors of the Estate of Mary Stephan, deceased, upon their properly qualifying before this Court.'

The Circuit Court, on appeal, entered its order, without opinion, affirming the order of the County Judge.

From this latter order, the appeal here was taken.

The question to be determined is whether under the last will and testament of John Stephan, where there were no children and testator failed to make any disposition of the residue of his estate after a life estate to his widow, and the widow died before accepting the provisions of the will or dissenting therefrom, the undisposed residue passed to the widow and gave her a fee simple therein?

Section 35 of Chapter 16103, being the Probate Act of 1933, Sec. 5507 (1), C.G.L. Perm.Supp., gives a widow the right to dissent from the provisions of a will if she does not wish to take thereunder. Section 36 of the Probate Act of 1933, Sec. 5507(2), C.G.L.Perm.Supp., requires the widow to file with the County Judge, in writing, acknowledged, signed and sworn to, her election to take dower within nine months after first publication of notice to creditors. Unless she elects in this manner she takes under the will, or under the law of descents and distributions where there is no will. Her right of dower does not become vested until she files her election in accordance with the statute, Sec. 5507(2), C.G.L. Perm.Supp., and dower is assigned to her. Redfearn on Wills and Administration of Estates in Florida, 394. The fact that the second will had not been found and had not been admitted to probate at the time of the widow's death, there being no fraud connected with this delay, does not make any difference, because the right to elect is personal to the widow. First National Bank of St. Petersburg v. MacDonald, 100 Fla. 675, 130 So. 596; 9 R.C.L. 604, Sec. 44. This right of election is strictly a personal one, which can be exercised by the widow alone (or by a court of equity for her when she is insane, as in the MacDonald case, supra) and expires with her death, even though her death occurs before the expiration of the time for election. Furthermore, the estate being free from debts, and there being no children, it does not appear that it would have been to the advantage of the widow to elect to take dower had she had the opportunity to exercise such election. See 17 Am.Jur. 709, Sec. 54; Flynn v. McDermott, 183 N.Y. 62, 75 N.E. 931, 2 L.R.A.,N.S., 959, 111 Am.St.Rep. 687, 5 Ann.Cas. 81; Crozier's Appeal, 90 Pa. 384, 35 Am.Rep. 666; Donald v. Portis, 42 Ala. 29; Annotations 85 A.L.R. 856. Here the wife was by the will given the entire estate for and during her life. There is no suggestion that the provision thus made for the wife was unjust or inequitable.

The purpose of a testator in making a will is to dispose of his property according to his choice, and to avoid the provisions of the statutes of descent and distribution. See Cuthbert...