Perkins v. O'donald
| Decision Date | 21 May 1919 |
| Citation | 77 Fla. 727,82 So. 401 |
| Court | Florida Supreme Court |
| Parties | PERKINS v. O'DONALD et al. |
On Petition for Rehearing, June 26, 1919.
Error to Circuit Court, Duval County; Daniel A. Simmons, Judge.
Ejectment by Mrs. C. O'Donald and husband against Mary E. Perkins. Verdict and judgment for plaintiffs, and defendant brings error. Reversed.
Additional Syllabus by Editorial Staff.
On Petition for Rehearing.
Syllabus by the Court
A gift clearly expressed in a will should not be cut down by ambiguous expressions in a codicil.
The reformation of written instruments is the subject of equity jurisdiction exclusively.
When the subject of a devise is so described as that the description is equally applicable to two or more things, the ambiguity which thus arises may be explained by parol evidence that it may be ascertained which of the two or more things the testator intended to devise.
Where the subject of a devise is accurately described, the operation of the devise will not be extended beyond its terms, nor will extrinsic evidence be received for the purpose of showing that something different from the thing described was intended to be devised.
Where there is a certain description of a thing devised in a will followed by words which are intended to amplify or make clearer the description already given, and it is discovered that no such thing exists to which the description in its entirety is applicable, so much of the description as is false or erroneous may be eliminated, and the devise will not fail if what is left of the description is applicable to the subject.
In the construction of a will, the intention of the testator as therein expressed shall prevail over all other considerations, if consistent with the principles of law.
A claim of title to the east half of lot 1 in block 21 is not supported by a devise to the claimant of the 'east half of lot 1, block 22, with the house thereon, * * * to have and to hold the said described house and lot with its appurtenances.' Nor will parol evidence be received to show that the testatrix did not own the lot described, but did own the lot claimed and none other in that portion of the town where the two lots were located.
J. L Doggett, W. E. Kay, and Henry C. Clark, all of Jacksonville for plaintiff in error.
Cockrell & Cockrell and W. T. McCaffrey, all of Jacksonville, for defendants in error.
Mrs. C. O'Donald and her husband, C. O'Donald, sued Mary E. Perkins in an action of ejectment to recover possession of the east half of lot one (1) in block twenty-one (21), North Pablo Beach, Duval county, Fla. There was a verdict and judgment for the plaintiffs, and the defendant took a writ of error.
The plaintiff Mrs. O'Donald claimed title under the last will and testament of Emily E. Marshall. The defendant, Mary E. Perkins, claimed the right of possession as lessee under other devisees of Emily E. Marshall. The plaintiff offered in evidence the probated will and codicil of Mrs. Marshall. To the introduction of evidence of this document the defendant objected, upon the grounds that it did not appear that either the will or codicil had any bearing upon the issues of the case; that there was nothing to show that either the will or codicil related in any way to the lot described in the declaration; that the will was incompetent to prove title in the plaintiff because the property described in the will and devised to the plaintiff is entirely a different piece of property from that described in and claimed by the declaration, and that no foundation had been laid to 'connect up the property devised by the will with the property claimed in the declaration.'
This objection was overruled by the circuit judge and the will was admitted in evidence. That ruling constitutes the basis of the first assignment of error argued by counsel for the plaintiff in error.
It is unnecessary to quote in full the will as it appears in the records. It, with the codicil and proofs and certificates attached, is a lengthy document, many of the provisions of which in no wise bear upon the issues involved here. The document begins with the usual declaration that the testator is of 'sound and disposing mind and memory,' and then recites that, being desirous of settling her worldly affairs and 'directing how the estates with which it has pleased God' to bless her shall be disposed of after her death, she made, published, and declared the document to be her last will and testament, revoking and making void all former wills made by her. In the first item she directs that all her just debts be paid, except certain mortgages, with regard to which she makes certain directions. In item 2 she disposed of certain real property in Jacksonville. The third item is the one specifically under which the plaintiff Mrs. O'Donald claims. We quote it here in full:
Donald, of Pablo Beach, Florida, the east half of lot 1, block twenty-two (22), with the house thereon at North Pablo Beach, Florida, to have and to hold the said described house and lot with its appurtenances and belongings unto the said Mrs. C. O'Donald, her heirs and assigns, in fee simple absolute.'
In item 4 she devised to Miss Taylor the west half of the same lot. In item 5 she devised the 'rest and residue' of her estate, 'both real and personal and mixed, wheresoever situate,' to certain persons in trust for the purposes set forth in the will. Under the persons claiming title under this last clause the defendant claims the right of possession to the lot involved in this litigation.
The will was dated February 17, 1913. On the 26th day of December following Mrs. Marshall made a codicil, in which she recited that, having theretofore during the month of February, 1913, made a will, and being 'desirous of altering and changing the said will,' she made the codicil, the first three paragraphs of which are as follows:
'Two-thirds (2/3) of all my property, real, personal and mixed, I give outright to my nephew Winfred John Foss, to do with as he sees fit, having implicit confidence in his judgment and discretion and knowing that he will do with this property as is best.
'As to the remaining one-third (1/3) of all my property, any specific devises or bequests of property not included in the property left in trust by my said will, I do hereby affirm, and desire and ordain that they be carried out as set forth in said will.
'But with the exception of any such specific devises or bequests, I desire and ordain that any and all of the remainder of this one-third (1/3) of my property be left in trust to the said trustees of my will to be disposed of in the following manner.'
By the will as declared in February, 1913, Mrs. Marshall directed that two lots should be given to three persons, viz. Ada Patterson, Mrs. O'Donald, and Miss Taylor; Ada Patterson to have the house and lot in Jacksonville, and Mrs. O'Donald and Miss Taylor the lot in North Pablo Beach, one taking the east half and the other the west half of the lot. The remainder of her estate Mrs. Marshall devised in trust to C. C. Bettes and Winfred J. Foss for the purposes named in the will. Under this clause the trustees were directed to care for the property, collect the rents, pay the taxes and other bills, and during the first year to pay $500 to Rev. P. W. Fauntleroy, and all the net rents and profits to be divided between W. J. Foss, in trust for W. L. Foss, Merle Wyman, Marshall Wyman, Carrie Gray, the children of Henry Christenot, Emma Hough, and Maud Brill Chew, each to have one-tenth, except W. J. Foss, who was to have in trust three-tenths, and Maud Brill Chew, who was to take two-tenths. At the end of each year thereafter during the life of the trust the net rents and profits were to be distributed in the same manner. The will directed that at the end of 10 years the trustees should sell all of the estate, and the cash and convertible securiities received therefor, after the payment of all charges, should be distributed in 'the following proportion to the following persons': Mrs. O'Donald to receive $1,000; Miss Taylor, $1,000. Out of the balance then remaining W. L. Foss was to receive three-tenths, Maud Brill Chew two-tenths, and the others one-tenth each. On the 26th of December, 1913, Mrs. Marshall executed the codicil, in which she devised to Winfred John Foss two-thirds of all her property, real, personal, and mixed, 'to do with as he sees fit,' having confidence in his judgment and discretion, and knowing that he would do with the property as is best. The codicil then proceeds to deal with the remaining one-third of all the property. But in this connection the testatrix again refers to the specific devises or bequests of property not included in the property left in trust by the 'said will' and affirmed such specific devises and desired and ordained 'that they be carried out as set forth in said will.'
It appears that this language indicates an intention to segregate from the bulk of her estate the two lots which were the subject of the three specific devises, and to deal with the remainder, two-thirds of which she directed to go to W. J. Foss, and the remaining one-third in trust, with the changes designated in the codicil.
We were for a time doubtful of the effect of the codicil upon the specific devises, and requested counsel for briefs upon that point. A more careful consideration of the language of the codicil and the will, taken as one instrument, has led us to the conclusion that the specific devises were not annulled or revoked by the codicil. It appears to have been the testatrix's intention by the codicil to deal with the property left in trust by the...
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