Lubbe's Estate, In re, s. 2652

• Decision Date: 02 May 1962
• Docket Number: Nos. 2652,2653,s. 2652
• Citation: 142 So.2d 130
• Parties: In re ESTATE of Helen D. LUBBE, Deceased. Brantley BURCHAM, etc., Appellant, v. Mildred KAMORASKI and Lillian Smith, Appellees. The FLORIDA NATIONAL BANK OF JACKSONVILLE, etc., Appellant, v. Mildred KAMORASKI and Lillian Smith, Appellees.
• Court: Florida District Court of Appeals

Page 130

142 So.2d 130

95 A.L.R.2d 1246

In re ESTATE of Helen D. LUBBE, Deceased.

Brantley BURCHAM, etc., Appellant, v. Mildred KAMORASKI and Lillian Smith, Appellees.

The FLORIDA NATIONAL BANK OF JACKSONVILLE, etc., Appellant, v. Mildred KAMORASKI and Lillian Smith, Appellees.

Nos. 2652, 2653.

District Court of Appeal of Florida, Second District.

May 2, 1962.

Rehearing Denied June 18, 1962.

Charles J. Cullom, Orlando, and Edward S. Hemphill, Jacksonville, for appellants.

David W. Cunningham, Winter Park, for appellees.

WHITE, Judge.

These are consolidated appeals by Florida Notional Bank of Jacksonville and Brantley Burcham as co-executors under the last will and testament of Helen D. Lubbe dated August 24, 1959. Brantley Burcham was named sole beneficiary of the decedent's residuary estate. The appellants challenge a probate order declaring the residuary bequest void on the ground that Brantley Burcham was an interested subscribing witness to the will.

The issues of the case also focus attention on a prior will of Helen D. Lubbe dated August 15, 1958. This will was drafted by Brantley Burcham who was named therein as residuary beneficiary and co-executor and attorney for the estate. The will was attested by Brantley Burcham and two disinterested witnesses. Florida National Bank of Jacksonville was named co-executor as in the later and final will here involved.

On August 24, 1959 Helen D. Lubbe executed her last will and testament, expressly revoking all her prior wills. Twenty-four bequests were identical with those in the previous 1958 will. One specific bequest was added to the last will, while eight specific bequests which had been included in the previous will were omitted. Brantley Burcham drafted the will and was a subscribing witness with Frieda Schmidt, a relative of the decedent, and one Walter L. Maxley. Frieda Schmidt was bequeathed certain furniture while Brantley Burcham was bequeathed all the estate remaining after the several bequests hereinbefore mentioned. Thus it would appear, on the face of it, that Walter L. Maxley was the only subscribing witness not interested in the estate of Helen D. Lubbe under her last will and testament.

Helen D. Lubbe died November 8, 1959 at the age of ninety and left a substantial estate. Her last will of August 24, 1959 was probated. On November 14th, 1960 Mildred Kamoraski and Lillian Smith, the appellees herein and heirs at law of the decedent, filed their petition for on order adjudging the bequest to Brantley Burcham void by operation of Fla.Stat. § 731.07(5) F.S.A. ¹ No relief was sought as to the bequest to Frieda Schmidt, and a prayer for voidance of certain charitable bequests was abandoned in view of the fact that the decedent left no surviving spouse or lineal descendant by blood or adoption. ² The co-executors filed separate answers which, in combination, denied invalidity of the disputed bequest inasmuch as (1) there were at least two witnesses who were not interested in the particular bequest, (2) the bequest was valid under the saving clause in § 731.07(5), supra, and (3) the bequest was, in effect, preserved by the doctrine of dependent relative revocation as applied to the two wills of the decedent.

The two wills were admitted in evidence on final hearing before the probate judge whose order adjudged void the residuary bequest and determined that these assets should pass to the heirs of Helen D. Lubbe as intestate estate under the statutory order of succession. ³ The court's conclusions were based on findings that Brantley Burcham was an interested witness, that he did not come within the saving clause of the statute and that the doctrine of dependent relative revocation was not applicable. The three points presented on appeal were not raised by the same appellant, but for convenience each point will be treated as though it were raised by both appellants. These points pose substantially the same questions as those raised by the answers of the appellants and enumerated in the preceding paragraph, viz.,

1. Whether the fact that at least two witnesses were disinterested in the particular bequest makes Brantley Burcham a disinterested witness within the meaning of the statute. This point is emphasized primarily by appellant Brantley Burcham.

2. Whether, assuming Brantley Burcham to be an interested witness, his claim to the residuary estate nevertheless is preserved under the saving clause in the statute. This point is emphasized by the corporate executor which takes the position that if the residuary bequest in the last will fails, the last will to that extent was 'not established' and that Brantley Burcham accordingly should take as residuary beneficiary under the preceding 1958 will.

3. Whether the residuary interest is preserved to Brantley Burcham under the doctrine of dependent relative revocation.

This case has extraordinary aspects and it is well to note at the outset, by way of emphasis, the historical reason for the penalty rule against interested witnesses to wills. It is succinctly stated in Redfearn on Wills and Administration of Estates in Florida, 2nd Ed., § 75:

'* * * This rule that logatees and devisees named in a will lose their interest under the will if they act as attesting witnesses is based on the principle that the temptation to them to perjure themselves in favor of their interest is thus removed when the will is attacked.'

Treating together the first two points on appeal, we shall now consider whether Brantley Burcham was an interested witness and, if so, whether he comes within the saving clause of the statute so that the bequest to him may be sustained notwithstanding his interest and despite the fact that he is not an heir at law of the decedent. It is first contended that § 731.07(5) should have been construed by the probate judge to mean that no devise or bequest to a subscribing witness is valid unless there are at least two other subscribing witnesses disinterested in the particular devise or bequest. This meaning would be derived from what is urged as the correct interpretation of the first sentence of the section:

'All devises and bequests to subscribing witnesses are void unless there are at least two other disinterested subscribing witnesses to the will.'

The argument, citing a text on English grammar and sentence construction, ⁴ is as follows: The subject of the first clause, 'All devises and bequests to subscribing witnesses are void * * *' is the subject of the independent clause and the heart of the sentence, whereas the subordinate clause '* * * unless there are at least two other subscribing witnesses to the will' does not express a complete thought and cannot stand alone, being an adverbial clause dependent upon the first or independent clause for its meaning. It is accordingly submitted that the words 'disinterested subscribing witnesses' relate back to the subject of the independent clause 'devises and bequests', thus rendering the bequest good since there were two witnesses not interested in that bequest.

The foregoing argument is scholarly, ingenious and novel. Upon mature consideration, however, we think the proposed interpretation is strained and contrary to the clear intent of the statute. It would render nugatory the words 'to the will' following the word 'witness' and it would be inconsistent with the evolution of this phase of the law as it has been developed by statute to the present time. At common law under the Statute of Frauds a will was invalid if one or more of the witnesses were beneficially interested under the will. A small legacy to a witness, a gift of some trifling amount to a faithful servant who happened to be called to witness a will, would invalidate the entire instrument. In order to remedy the unnecessary harshness of this situation Statute 25 George II, c6, was enacted in 1752 making such a witness competent to attest the execution of the will but continuing the invalidation of the bequest to him. Thus was accomplished the purpose of saving the will by purging the witness' share in order to make him competent. This is how the law stood in England on July 4, 1776 which, by adoption, later became law in Florida. Fla.Stat. § 2.01 F.S.A.; Redfearn on Wills and Administrations of Estates in Florida, § 75.

Florida and other states have modified the common law rule by statutes providing in effect that if there are a sufficient number of competent witnesses to the will without counting the interested witness, the bequest to such witness shall not be affected. Legislation in many states has further qualified the rule by adding a saving clause enabling an interested witness to take up to the amount of the share he would have taken by intestacy not exceeding the interest he would have received under the will.

We now look at the intendment of the Florida Statute as reflected in the language there employed. It is appellants' contention that an interested witness who is not an heir at law nevertheless may take by reason of a like legacy in an immediately preceding will of the same testator because of the wording of the saving clause and because the law does not faovr partial intestacy. The saving clause in the Florida statute does not specifically provide that it shall pertain only to heirs. We think it implicit, however, that it was intended to save bequests to interested witnesses only to the extent that such witnesses could take by intestacy. The clause provides that the interested witness shall take such proportion of the devise or bequest made to him as does not exceed the share of the estate which would be 'distributed to him' if the will were not established. The words 'distributed to him' are relative to the word 'distributee' which is defined as a person entitled to the personal estate of one who has died intestate. Bouv.Law Dict. Rawle's Third Revision, p. 896, and case citation; Ballantine's Law Dictionary; Black's Law Dictionary.

The case of In re...