Schiele's Estate, In re

• Decision Date: 16 March 1951
• Citation: 51 So.2d 287
• Parties: In re SCHIELE'S ESTATE.
• Court: Florida Supreme Court

Page 287

51 So.2d 287

In re SCHIELE'S ESTATE.

Supreme Court of Florida, Division B.

March 16, 1951.

Fisher & Sauls, St. Petersburg, for appellant.

Louis C. Deal, Jr., of Charles J. Schuh & Sons, St. Petersburg, for appellees.

CHAPMAN, Justice.

It appears by the record in this cause that Otto A. Schiele died in St. Petersburg, Florida, on July 6, 1949, and found among his personal effects was a document and labeled across the top thereof was the word 'Will'. Following is a substantial copy thereof:

'Will

'In the Name of God, Amen

'I, Otto A. Schiele, being of sound mind and memory, and considering the uncertainty of this frail and transitory life, do therefore make, ordain publish and declare this to be my last Will And Testament, that is to say:

'First--After all my lawful debts are paid and discharged, I give and bequeath to the following beneficiaries, all my property of each and every description:--Real Estate, Securities, Investments, Bonds, Stocks, Leases, Personal Property, Moneys, and whatever else I die possessed of. I am to be buried in the New Palestine Cemetery at New Palestine, Ind. beside the grave of my beloved wife Clara K. Schiele. Inscription of the year of my death to be completed on the monument which monument has been provided. * * * First after all my lawful debts are paid, including any and all the above stipulations or requests, and all the above stipulations are included, then shall the Beneficiaries participate in the following manner:--20% to the First Ave. Methodist Church, St. Petersburg, Fla. same not to be used for general expense but used otherwise for the upbuilding of the Kingdom of God. 5% to the St. Pauls Episcopal Church of Put-in-Bay, Ohio, to keep the church in tact and spreading the Gospel to the people of the Island. Of the balance as follows:--1/3 to Ada May Schiele, Put-in-Bay, Ohio. The balance 2/3 divided equally between Mr. Ura Cunningham, Mrs. Bernice Addison, both of New Palestine, Ind. Mrs. Amy Phillips, of 2945 Kenwood Ave. Indianapolis, Ind. Mrs. Mary Ella McGuire, R.R.1, % J. E. Stevens, Anderson, Mo. Verna Martin, 11749 So. Michigan Ave. Chicago, Ill. Mrs. Mignona Chaney, 408 West Williams St. Fort Wayne, Ind. Likewise I make, constitute and appoint Ada May Schiele and Mar. Bernice Addison to be joint executrixes of this may last Will and Testament, hereby revoking all former Wills by me made.

In Witness Whereof, I have hereunto subscribed my name and affixed my seal the Sixteenth (16) day of June, in the year of our Lord one thousand nine hundred and forty three (3)

________ (Seal)

'The foregoing partly written and partly printed instrument was subscribed by the said Otto A. Schiele in our presence and acknowledged by _____ to each of us; and he at the same time did declare the above instrument, so subscribed, to be his last Will and Testament and we, at his request, have signed our names as witnesses, hereto, in his presence and in the presence of each other, and written opposite our names our respective places of residence.

'Launa P. Collins /s/

1200 Pass-a-Grille Ave.

Witness

Residence

'J. E. E. Morrison /s/

208-1 Av. N. St. Petersburg

Witness

Residence

'Arthur P. Black /s/

First Natl. Bank Bldg. St. Petersburg, Florida

Witness

Residence'

The original of the above document was offered for probate in the County Judge's Court of Pinellas County, Florida but probation thereof was denied by the County Judge, largely upon the theory that the purported instrument was invalid and failed to meet the requirements of Section 731.07(1), F.S.A., in that Otto A. Schiele did not sign the instrument 'at the end thereof', as required by the statute, supra. Petinent language in the order is viz.: 'The line set forth in the printed form for the testator's signature is blank and nowhere above or before the attestation clause, or at the end thereof, is there a signature of the name 'Otto A. Schiele' unexplained by the context so as to permit the admission of parol of extrinsic evidence in explanation thereof.'

An appeal was perfected from the above order to the Circuit Court of Pinellas County, Florida, where an order was entered reversing and holding for naught the order of the County Judge's Court of Pinellas County. Pertinent provision of the order of reversal are viz.:

'(1) That under our statute Section 731.07, F.S.A. as amended which requires a will to be signed at the end thereof, a signature of the testator affixed in the attestation clause with intent that it be a signature to the will would be sufficient compliance with said statutory provisions.

'(2) That the Honorable Jack F. White, County Judge of Pinellas County, Florida, erred in his order of February 14th, 1950 in ruling that as a matter of law a signature so placed could not and did not result in a valid will and that Otto A. Schiele died intestate.

'(3) That the County Judge should have received testimony as to the circumstances under which said signature was affixed in the attestation clause so as to determine whether or not it were affixed with the intention that it constituted a signature to a will.

'(4) That...