Shepherd's Estate, In re, s. 1724

• Decision Date: 09 June 1961
• Docket Number: 1750,Nos. 1724,s. 1724
• Citation: 130 So.2d 888
• Parties: In re ESTATE of Ella Blanche SHEPHERD, Deceased. Eleanor Furr LOY, Thomas Loy, E. T. Furr, Joseph Furr and Virginia Furr, Appellants, v. Philip O. SHEPHERD, Jr., Executor C.T.A., Joan Page Furr, a minor by and through her next friend, Rex Furr, Erna Shepherd, and Barbara Lewis Bower, Appellees.
• Court: Florida District Court of Appeals

Page 888

130 So.2d 888

In re ESTATE of Ella Blanche SHEPHERD, Deceased.

Eleanor Furr LOY, Thomas Loy, E. T. Furr, Joseph Furr and Virginia Furr, Appellants, v. Philip O. SHEPHERD, Jr., Executor C.T.A., Joan Page Furr, a minor by and through her next friend, Rex Furr, Erna Shepherd, and Barbara Lewis Bower, Appellees.

Nos. 1724, 1750.

District Court of Appeal of Florida, Second District.

June 9, 1961.

Sanders, McEwan, Schwarz & Mims and Monroe E. McDonald, Orlando, for appellants.

Hue E. Nunnallee, Mattie W. Tompkins, S. Colquitt Pardee, and Keith Collyer, Avon Park, for appellees.

KANNER, Judge

Two appeals from orders entered by the county judge in probate proceedings are consolidated for consideration here. Case 1724 is an appeal from an order denying probate to a will executed by Ella Blanche Shepherd in August, 1957. Case 1750 is an appeal from an order denying petition for revocation of probate of a mutual will of Reuben Page Shepherd and Ella Blanche Shepherd executed in July, 1955. The parties in both appeals are the same, as are the facts and the property involved, with the same questions to be decided.

Before entering into the merits of the appeals, we shall consider a motion to dismiss the appeal in Case 1724. That motion is grounded upon the proposition that the notice of appeal was not filed within the thirty day period specified by section 732.16, Florida Statutes, F.S.A., and that, consequently, this court is without jurisdiction. In a recent decision, however, the Supreme Court of Florida determined, as to a probate proceeding, that the time allowed for filing notice of appeal is sixty days. See In re Wartman's Estate, Fla.1961, 128 So.2d 600. The motion to dismiss, therefore, is denied, since the notice of appeal was filed within the requisite sixty-day period.

Ella Blanche Shepherd, a resident of Avon Park, Florida, died in October, 1958. Her husband, Reuben Page Shepherd, had predeceased her. While residents of the State of Virginia, the husband and wife in 1955 had executed a mutual will in that state disposing of property for the most part owned jointly by them. Upon the death of either, the survivor was to receive the estate of the decedent. Each, in the event he or she should be the survivor, disposed of the estate to certain named individuals who were jointly agreed upon by the husband and wife. Paragraph 8 of the mutual will states:

'Our purpose in making this joint and reciprocal Will is to dispose of our property in accordance with a carefully considered common plan; the reciprocal and other gifts and bequests made herein are made in fulfillment of this purpose and in consideration of each of us waiving any and all right to alter, amend, or revoke this Will in whole or in part, by Codicil or otherwise, without written consent of the other during out joint lives, or under any circumstances after the death of the first of us.'

The Shepherds moved to Florida in 1957 and established residence in this state, purchasing a home in Avon Park. Subsequent to her husband's death, Ella Blanche Shepherd executed an individual will in August, 1957, revoking any and all prior wills and disposing of the estate in a manner inconsistent with the provisions of the mutual will executed in 1955. Approximately a year following the execution of the 1957 will, Mrs. Shepherd died.

Philip O. Shepherd, who had been named executor in both wills, petitioned the county judge's court for Highlands County, Florida, to probate the individual will of Ella Blanche Shepherd. At the time the petition for probate of the individual will was heard, the mutual will was also produced and was considered by the county judge. No testimony was taken at the hearing, but an affidavit from the Virginia attorney who had drawn the mutual will giving his opinion as to the intent of the parties in making it was proffered to the court. After examining the mutual will, the affidavit, and the individual will, the court, through an order, refused to accept proof of execution of the individual will of Ella Blanche Shepherd and held that this will was not entitled to probate. The probate judge then determined that the mutual will was irrevocable and entitled to probate upon proof of execution, premising these determinations upon the wording of the joint will and the affidavit with reference to the intention of the parties under the will. Although stating that a joint will is also a contract, and recognizing that '* * * as probate court, this Court would have no authority to exercise equitable jurisdiction in determining the validity of this contract * * *,' the probate judge reasoned that, '* * * the contract agreement is spelled out within the written instrument itself which is stated to be a testamentary disposition of the two parties * * *.' Thereupon he concluded that it would be unfair to the estate and beneficiaries to require expensive litigation in courts other than the probate court to specifically enforce the contract or to impose a trust on the estate. After proof of execution, the mutual will was admitted to probate and letters testamentary were issued.

The order denying the petition to admit the individual will to probate forms the basis of the appeal in Case 1724. The appeal taken in Case 1750 is in turn predicated upon the order denying the petition to revoke the probate of the mutual will.

We may say that some irregularities appear in the proceedings, but we do not deem it necessary to consider them here. The basic issues appear to resolve themselves into the questions, (1) whether the mutual will executed in 1955 was revocable, and (2) whether the individual will of Ella Blanche Shepherd was entitled to probate.

Proceeding to the first question, whether the mutual will is revocable, we perceive that the probate judge concluded, because of the language of irrevocability contained in it, that the instrument is of binding contractual effect and is therefore not revocable.

A will by nature is ambulatory; thus a will possesses the inherent quality of revocability. It has been said that an instrument which is irrevocable cannot be a will, whatever else it may be. Page on Wills, Vol. 4, section 1709, p. 833; 34 Fla.Jur., Wills, section 106, p. 524. An extensive annotation dealing with the subject of joint,...