Rewis v. Rewis
| Decision Date | 04 February 1920 |
| Citation | 79 Fla. 126,84 So. 93 |
| Parties | REWIS v. REWIS et al. |
| Court | Florida Supreme Court |
Rehearing Denied March 11, 1920.
Appeal from Circuit Court, Duval County; Daniel A. Simmons, Judge.
Bill for partition by Mildred Rewis, a minor, by her next friend W. F. Hutchinson, against William H. Rewis and others. Demurrer to bill sustained, and complainant appeals. Affirmed.
Syllabus by the Court
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. To this great rule in the exposition of wills all others must bend.
The courts should give effect to the intent of a testator as expressed in the will when such intent accords with law; and a will should be so construed as to give effect to every word and every part thereof without change or rejection, and the several clauses should be made to harmonize, and effect given to all, provided the effect is not inconsistent with the general intent and purpose of the testator as gathered from the entire instrument.
A will cannot be construed by a mere conjecture as to the intention of the testator; but it is the intention which the testator expresses in his will that controls, and not that which he may have had in his mind.
Where a devise is to the testator's daughter 'to have and to hold during her lifetime and at her death to go to her living children,' only the children of the life tenant who were living at her death took remainders in the property at the death of the life tenant.
COUNSEL R. B. Huffaker, of Bartow, for appellant.
George C. Martin, of Brooksville, for appellees.
This appeal is from an order sustaining a demurrer to a bill in equity for partition of lands. It appears that Emily Taylor devised certain real estate to her daughter Margaret Ann Jane Rewis 'to have and to hold during her lifetime and at her death to go to her living children'; that complainant's father, Lonnie T. Rewis, was a son of Margaret Ann Jane Rewis; that he died after the death of the testatrix, Emily Taylor, and before the death of his mother the life tenant, Margaret Ann Jane Rewis; that complainant is the only surviving child and heir at law of Lonnie T. Rewis deceased; that she claims a share in the lands upon the theory that the devise created a vested remainder in the children of the life tenant, Margaret Ann Jane Rewis, complainant's father being one of the children.
If the devise created a vested remainder in the children of the life tenant, complainant is entitled to his share of the land. If the devise created a contingent remainder in the children of the life tenant who were living at her death, the complainant has no share in the land, since her father died before his mother the life tenant died.
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. To this great rule in the exposition of wills all others must bend. Dean v. Crews, 81 So. 479; Miller v. Gaskins, 11 Fla. 73; Lines v. Darden, 5 Fla. 51; Perkins v. O'Donald, 82 So. 401; Floyd v. Smith, 59 Fla. 485, 51 So. 537, 37 L. R. A. (N. S.) 651, 138 Am. St. Rep. 133, 21 Ann. Cas. 318; 40 Cyc. 1386, 1388; 30 Am. & Eng. Ency. Law (2d Ed.) 764.
The courts should give effect to the intent of a testator as expressed in the will when such intent accords with law; and a will should be so construed as to give effect to every word and every part thereof without change or rejection, and the several clauses should be made to harmonize, and effect given to all, provided the effect is not inconsistent with the general intent and purpose of the testator as gathered from the entire instrument. 30 Am. & Eng. Ency. Law (2d Ed.) 664.
The intention which controls in the construction of a will is that which is manifest, either expressly or by necessary implication, from the language of the will, as viewed, in case of ambiguity, in the light of the situation of the testator and the circumstances surrounding him at the time it was executed, although technical words are not used; or, as is sometimes said, the testator's intention must be ascertained from the four corners of the will. Hence a will cannot be construed by a mere conjecture as to the intention of the testator; but it is the intention which the testator expresses in his will that controls, and not that which he may have had in his mind. 40 Cyc. 1388.
In Paul v. Frierson, 21 Fla. 529, it was held that a conveyance of land by a person in trust for his wife, M 'for and during the term of her natural life, and at her death the said property * * * shall be equally divided among...
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