King v. Citizens and Southern Nat. Bank of Atlanta, Ga.
| Decision Date | 27 May 1958 |
| Docket Number | No. 57-140,57-140 |
| Parties | Beulah McCollum KING and Jackson L. King, as Executors of the Last Will and Testament of Rufus DeWitt King, Deceased, Appellants, v. The CITIZENS AND SOUTHERN NATIONAL BANK OF ATLANTA, GA., as Trustee, Appellee. |
| Court | Florida District Court of Appeals |
Wilson Trammell and G. C. Conner, Miami, for appellants.
Redfearn, Ferrell & Simon, Miami, for appellee.
This appeal is from a decision of the Circuit Court of Dade County affirming in part and reversing in part an order of the county judge's court construing certain provisions of a will.
The appeal to the circuit court was filed prior to July 1, 1957, the effective date of revised Article V of the Constitution of the State of Florida, under which a first appeal of the probate order to the circuit court would not be authorized, and the appeal would lie direct to this court (Art. V, § 5 of the Constitution, F.S.A.). Because of its earlier filing, the two consecutive appeals were allowed. See Art. V, § 11 of the Constitution before such revision, and §§ 732.16 and 732.19, Fla.Stat., F.S.A.
The matter in dispute, the contentions of the parties and the principles involved are set out in the opinion order made by the able Circuit Judge, the Honorable Pat Cannon, who obviously gave thorough consideration to this record, and after hearing the arguments of counsel, determined the appeal as follows 'This appeal is concerned with the interpretation of the last will and testament of Rufus DeWitt King, deceased.
'The sole issue here is whether the probate judge properly interpreted the will by stating that by virtue of Article Third of said will it was the intention of the testator to bequeath to his widow, Beulah McCollum King, a fractional part of the assets of his testamentary estate equivalent as of the date of his death to fifty (50%) per cent of his adjusted gross estate, as the same is defined for Federal estate purposes, before deduction of estate or inheritance taxes, which bequest is not subject to being reduced by property constituting a part of the gross estate of the decedent for estate tax purposes which passed to the said Beulah McCollum King dehors or outside of said will; and by reason of said bequest being a bequest of a fractional part of said estate, it is entitled or obligated to share in the economic gain or loss in such fractional part of such assets during the course of the administration of said estate, and is also entitled to share in the income on the assets of said estate in the proportion that her fractional share of said estate bears to the total of such income.
'The appellant is the trustee under the will and the appellees are the executors under the will.
'Mr. King's will disposed of his estate in eight (8) paragraphs, but the sole paragraph with which we are concerned reads as follows:
'It is apparent that under said paragraph the two sentences are inconsistent with each other and therefore under Florida Law where two clauses are in irreconcilable conflict the rule of the construction of wills is that the latter clause will prevail as being the last expression of the testator's intention where the clause refers to the same subject matter. See In re McMillan's Estate, Fla.1947 (158 Fla. 898), 30 So.2d 534.
'It is the contention of the appellant that the interpretation of the will by the county judge of paragraph third under said will gave unto the widow a much larger portion than fifty per cent (50%) of the adjusted gross estate. The appellant further contends that since the widow made no election under the will that the county judge erred in electing for the widow and giving her fifty per cent (50%) of the adjusted gross estate plus all property passed to her dehors the will.
'The assets of the estate used in determining the adjusted gross estate are as follows:
'The widow received as property passing dehors the will as follows:
'It seems evidence that in examining the paragraph third under the will that it was the intention of the testator to grant unto his widow an amount equal to fifty per cent (50%) of his adjusted gross estate as the same is defined for Federal Estate tax purposes. The employment of a formula for the fixing of an amount to which the widow is entitled under the will does not necessarily change is character.
'A gift of personal property is a legacy or bequest. Legacies are of three kinds:
'1. Specific. 2. General. 3. De...
To continue reading
Request your trial
-
Estate of Lenahan, In re
...the estate during administration. See In Re Rose's Estate, 165 So.2d 226 (Fla. 3rd DCA 1964) and King v. Citizens & Southern National Bank of Atlanta, Ga., 103 So.2d 689 (Fla. 3rd DCA 1958). Also, contrary to appellant's assertions, a will may have more than one residuary clause. See Sternb......
-
Smith v. Commissioner
...2d 146, 151 (1961); In re Gilmour's Estate, 18 A.D. 2d 154, 238 N.Y.S. 2d 624, 629 (3d Dept. 1963); King v. Citizens & Southern Nat. Bank of Atlanta, Ga., 103 So. 2d 689 (Fla. App. 1958); In re Estate of Kantner, supra. Similarly, the will's direction that the trustee's valuation shall be c......
-
Nedry's Estate, In re, s. 77-1075
...payable from the estate residue. We find no error in the trial court's construction of the will. King v. Citizens and Southern National Bank of Atlanta, Ga., 103 So.2d 689 (Fla. 3d DCA 1958); Estate of McLaughlin, 30 N.Y.2d 781, 334 N.Y.S.2d 175, 285 N.E.2d 318 (1972); New Orleans Baptist T......
-
Nicolai's Estate, In re
...1961, 404 Pa. 412, 172 A.2d 146; In Re Estate of Kantner, 1958, 50 N.J.Super. 582, 143 A.2d 243; and King v. Citizens & Southern Nat. Bank of Atlanta, Ga. (Fla.App.1958) 103 So.2d 689. It was said that these cases tend to support appellants. The language construed in each of the cases varie......