Pournelle v. Baxter

• Decision Date: 07 July 1942
• Citation: 9 So.2d 162,151 Fla. 32
• Parties: POURNELLE et al. v. BAXTER et al.
• Court: Florida Supreme Court

9 So.2d 162

151 Fla. 32

POURNELLE et al. v. BAXTER et al.

Florida Supreme Court

July 7, 1942

Rehearing Denied July 31, 1942.

Appeal from Circuit Court, Alachua County; C. E. chillingworth judge.

Fielding & Duncan, of Gainesville, for appellants.

Davis Davis & McClure and Chas. E. Davis, all of Madison, and Baxter & Clayton and Clara B. Floyd, all of Gainesville for appellees.

BUFORD, Justice.

This cause is before us on appeal from an order of the Circuit Court affirming the order of a Circuit Judge sitting as Judge of Probate in lieu of the disqualified County Judge.

The case arises out of the following existing conditions: Mrs. Fannie A. Baird, a widow, died April 4, 1936. Two days after her death a will appearing to have been executed on August 11, 1934, was duly probated in the County Judge's Court in and for Alachua County. By this will she made certain bequests to Percy E Pournelle, as follows:

XVI. 'I give devise and bequeath to my cousin, Percy E. Pournelle, the former old home place known as 312 North Pleasant Street and situated on the west side of said street and on the north side of West Court Street, in Gainesville, Florida.'

XVII. 'I give, devise and bequeath a one-half interest in all the rest and residue of my property, real, personal and/or mixed, to my niece Fanida Baker, in fee simple absolute, and in the event she should die before my death, I direct that such one-half interest shall go to her sisters or such of them as survive her; and a life estate or interest in the remaining one-half of such rest and residue to my cousin Percy E. Pournelle and at his death such remaining one-half shall go to my said niece, Fanida Baker. I further direct that the said corpus or principal of said life interest of the said Percy E. Pournelle in such rest and residue shall be held and reinvested by my executors and trustees hereafter named during his life as in their judgment will best preserve and conserve the same and prevent waste and destruction.'

Other bequests are not material here.

On February 9, 1936, Percy E. Pournelle predeceased the testatrix and left surviving him as his heirs at law Percy Eugene Pournelle and Hazel Culp. Hazel was married and her husband is D. W. Culp. On November 19, 1937, a little more than nineteen months after the probate of the will, supra, Percy Eugene Pournelle and Hazel joined by her husband, D. W. Culp, brought suit in equity for the cancellation and annulment of the will, supra, and to establish another purported will as the true last will and testament of Mrs. Baird. That cause, on motion, was dismissed on the ground that equity was without jurisdiction. Appeal was taken to this Court and the order dismissing the case was affirmed. See Pournelle et al. v. Baxter et al., 142 Fla. 517, 195 So. 163. On April 11, 1940, more than four years after the probate of the will of August, 1934, the appellants here filed suit in the County Judge's Court as the court of probate seeking to cancel and set aside the probate of the will, supra, and to have probated the alleged will of April 12, 1930. In that purported will the following appears:

'I give, devise and bequeath to my cousin, P. E. Pournelle, my homeplace, described as No. 410 East Main Street, Gainesville, Florida, including all fixtures, furniture, musical instruments, radio and personal affects.

'I give, devise and bequeath to my cousin, P. E. Pournelle, and to my niece, Fanida Baker, all the rest and residue of my estate, both real and personal, to be divided between them in equal portions, to share and share alike.

'I hereby appoint my cousin, P. E. Pournelle, and my niece, Fanida Baker, as executors of this will and direct that they shall not be required to give bond in qualifying as my executors.'

The County Judge and the resident Circuit Judge appeared to be disqualified and the Honorable Frank A. Smith, a Circuit Judge, was assigned to act as Judge of Probate. The respondents moved to dismiss the petition. The motion to dismiss was granted after three amendments had been permitted and petitioners had declined to amend further. The motion to dismiss was granted as appears by the record because the petition on its face showed that the petitioners were successor beneficiaries under the will which they sought to have declared and adjudicated null and void and were not only beneficiaries under that will but had not effectively renunciated or disclaimed the benefits accruing to them under that will.

It will be observed that under the will of 1934, supra, certain real property was devised to petitioners' ancestor. The ancestor beneficiary named in the will having predeceased the testatrix, the law vested the bequest in his heirs when the bequest became effective on the death of the testatrix. See Sec. 21 of the Florida Probate Act, Acts 1933, c. 16103.

The title to the real estate devised to the petitioners' ancestor passed to petitioners under the probated will of 1934 if that will was valid and such title passed when Mrs. Baird died. Therefore, under the terms of that will these petitioners are prima facie vested with the title to that real estate and they may only divest themselves of that title in the manner provided by law. See Sec. 3787 R.G.S., sec. 5660 C.G.L.

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