Sacks' Estate, In re

Decision Date24 October 1972
Docket NumberNo. 72--107,72--107
Citation267 So.2d 888
PartiesIn re ESTATE of Samuel B. SACKS, Deceased.
CourtFlorida District Court of Appeals

August, Nimkoff & Gladstone, and Max L. Rosenstein, Miami, for appellant.

Lazan & Trute, Bay Harbor Islands, S. George Trager, Miami Beach, for appellee.



The appellant is the widow of Samuel B. Sacks. She appeals from a final order determining several of her claims against the estate. The order determined forst that a bequest of $20,000 included in a codicil to decedent's will was in satisfaction of and not in addition to the sum of $12,000 which the decedent agreed, in an antenuptial agreement, to bequeath to appellant. The second issue determined by the order is that the widow was not entitled to a family allowance under Fla.Stat. § 733.20, F.S.A. The co-executors of the estate as appellees have cross-assigned error upon an additional section of the order. This section awarded to the widow the proceeds of an insurance policy on a demolished automobile in which the decedent was riding at the time of his fatal injury. The award was made pursuant to a provision in the codicil which bequeathed to the widow, 'All my tangible personal property, specifically including but not by way of limitation . . . automobiles and any and all policies of insurance thereon, . . ..'

The points on appeal directed to the refusal to allow as an additional bequest, the $12,000 mentioned in the antenuptial agreement, urge that the court erred in construing the will and codicil be

cause the clear language required that the widow be awarded both. The provision of the codicil which the court construed is as follows:


I bequeath the sum of Twenty thousand ($20,000.00) Dollars to my Wife, MARY SACKS. Previous to our marriage my Wife and I entered into an Ante-Nuptial Agreement regarding our respective estates, said Agreement being dated April 29, 1969. This bequest is taking into consideration said Ante-Nuptial Agreement.'

The proposition that appellant urges in argument is contrary to the reasoning of this court in Sharps v. Sharps, Fla.App.1969, 219 So.2d 735. In the Sharps case, the holding is stated as follows:

'The antenuptial agreement was properly construed by the court to be a contract to make a will, because, as we demonstrated in Lindeburg v. Lindeburg, Fla.App.1964, 162 So.2d 1:

"In a contract to make a will, the promisor has the right to change his will, and * * * the right being enforced against the promisor is the contract right, and not the will, in the case of the breached contract to make a will, * * *"

'In the case sub judice, the decedent did not breach his agreement to leave the appellant $150,000.00; in fact, he greatly exceeded this promise with the $250,000.00 bequest.'

Appellant's attempt to distinguish the Sharps holding from the instant case because the codicil in the instant case uses the words 'this bequest is taking into consideration said antenuptial agreement' seems to us entirely ineffectual.

Appellant's point directed to...

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1 cases
  • Reed's Estate, In re, 49703
    • United States
    • Florida Supreme Court
    • January 12, 1978
    ...aiding the needy spouse of a decedent while the decedent's estate is in the often lengthy probate administration process. In re Sacks, 267 So.2d 888 (Fla.3d DCA 1972); Youngelson v. Youngelson, 114 So.2d 642 (Fla.3d DCA 1959); In re Stein, 106 So.2d 2 (Fla.3d DCA 1958). The purpose is legit......

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