Sorrels v. Mcnally
| Decision Date | 30 May 1925 |
| Citation | 89 Fla. 457,105 So. 106 |
| Parties | SORRELS et al. v. McNALLY. |
| Court | Florida Supreme Court |
Suit by Walter McNally, personally and as executor and trustee of and under the last will and testament of John B. Flinn, Sr. deceased, for construction of said will, in which Ruth Iona Sorrels and her husband were made parties defendant. From a decree holding Mrs. Zeolide W. Flinn entitled to the entire estate defendants Sorrels appeal.
Reversed with directions.
Syllabus by the Court
Where but one child survives, dower is one-half entire estate. Under the law of this state, where there is but one child surviving, the widow's dower is one-half the entire estate.
To ascertain and give effect to testator's intention is cardinal rule of testamentary construction. To ascertain and give effect to the intent of the testator is the cardinal rule of testamentary construction. We have found no exceptions to this rule, except where the testator attempts to dispose of his property contrary to some rule of law or public policy.
Intention of testator is to be gathered from consideration of all provisions of will taken together. The intention of the testator is to be gathered from a consideration of all the provisions of the will taken together, rather than from detached portions or any particular form of words. This rule prevails whether the entire will, or some specific clause or part of it, is being construed.
Trustee under will takes only estate commensurate with powers conferred, and purposes intended to be accomplished by him. We understand the rule to be that, regardless of how ample the terms of the devise to a trustee, he takes only an estate commensurate with the powers conferred and the purposes intended to be accomplished by him. It may be a dry passive trust or mere resting place for the legal title, or it may be an active continuing trust with power to sell and manage the estate equivalent to a fee simple absolute.
'Reversion' defined. A reversion is defined as the residue of an estate left in the grantor, to commence in possession after the determination of some particular estate granted out by him. It is also described as the returning of land to the grantor or his heirs, after the grant is over. [Ed. Note.--For other definitions, see Words and Phrases, First and Second Series Reversion.]
'Possibility of reverter' created by conveyance of limited fee. A 'possibility of reverter' is created by the conveyance of a limited fee, and while in some respects it is similar to a reversion, in others it is quite different. It is not an estate, but the mere possibility of having an estate at some future time. [Ed. Note.--For other definitions, see Words and Phrases, First and Second Series, Possibility of Reverter.]
'Resulting or involuntary trust' is independent of contract, and arises by implication of law on particular state of facts. A resulting or involuntary trust is one that is independent of any contract, and arises by implication of law on a particular estate of facts, as when one man's money has been invested in property and the deed taken in the name of another. It is sometimes defined as one which arises when the legal estate in property is disposed of, conveyed, or transferred, but the intent appears, or is inferred from the terms of the disposition, or from the accompanying facts and circumstances, that the beneficial interest is not to go or be enjoyed with the legal title. [Ed. Note.--For other definitions, see Words and Phrases, First and Second Series, Resulting Trust.]
'Resulting trust' never arises, where parties have made declaration of trust in writing. A resulting trust is a creature of equity, and never arises where the parties have made a declaration of trust in writing. Intention is an essential element, and is presumed in law from the facts and circumstances accompanying the transaction and payment of the consideration for the whole or a definite part of the property sought to be impressed with the trust.
'Lapsed legacy' or devise is one which never vests because of death of legatee before testator, or death of legatee before his interest vests under will; intention of testator determines question of lapse; 'lapsed devise.' A lapsed legacy or devise is one which never vests because of (1) the death of the legatee before the testator, or (2) if the legatee survive the testator he dies before his interest vests under the will. Most lapses fall in the first class, but in either instance the intention of the testator determines the question of lapse. [Ed. Note.--For other definitions, see Words and Phrases, Lapsed Devise; Lapsed Legacy.]
In absence of clear intention of testator to contrary, estates vest at earliest possible date. The law favors the early vesting of estates, and in the absence of a clear manifestation of the intention of the testator to the contrary, estates are held to vest at the earliest possible date.
Doubt as to whether legacy is vested or contingent is resolved, if possible, in favor of vesting; devises vest at death of testator, unless there is clear intent to postpone vesting. All doubt as to whether a legacy is vested or contingent is resolved, if possible, in favor of vesting, if this can be done by a fair and reasonable construction of the whole will, and no estate will be held to be contingent, unless very decided terms are used in the will, or it is necessary to so hold in order to carry out the other provisions or implications of the will. The overwhelming weight of authority is to the effect that devises vest at the death of the testator, unless there is a clear intent to postpone the vesting.
Presumption, that legacy was intended to be vested, applies with greater force in case of provision for child or grandchild than where gift is to stranger or to collateral relative. The presumption, that a legacy was intended to be vested, applies with far greater force where a testator is making provision for a child or a grandchild than where the gift is to a stranger or to a collateral relative.
Devise to individual or class on attaining certain age is prima facie contingent, but devise carrying to same individual or class income to accrue in meantime, confers vested interest. The rule seems to be well settled that where there is a devise to an individual or a class upon attaining a certain age, such devise is prima facie contingent; but when the devise carries to the same individual or class, the income from the estate to accrue in the meantime, it will be construed as conferring a vested interest.
If future gift is postponed to let in some other interest, gift is vested. 'If it appears that a future gift is postponed in order to let in some other interest, or as it is sometimes expressed, 'for the benefit of the estate,' the gift is vested notwithstanding, although the enjoyment is postponed; the presumption being that the testator postponed the distribution or payment for the purposes of the prior bequest and not to prevent the ulterior legacy from vesting.'
Estates in remainder vest at earliest period possible, unless contrary intention of testator is clearly shown; remainder after life estate is regarded as vested remainder.
Election by widow to take against will of deceased husband is equivalent to her death, as to payment of legacies and distribution under will on happening of such event. Election on the part of the widow to take against the will of her deceased husband is equivalent to her death as to payment of legacies and distribution under the will on the happening of that event.
At common law, title to property must be vested in some one; will held not to show purpose to suspend title to property. Under the common law title to property could not be suspended, but must be vested in some one. Such vestiture or right of vestiture may be cut off or defeated, but we are aware of no authority for holding it as suspended, and the will in this case evinces no such purpose on the part of the testator.
Right to take real or personal property by inheritance is purely statutory; husband is presumed to know that widow's statutory rights in his estate are paramount to his will. The right to take real or personal property by inheritance is purely statutory, and a husband is presumed to know that his widow's statutory rights in his estate are paramount to his will.
Lapsed devises or reversions, caused by election of widow to take against provisions of will, held subject to distribution under statute of descents. Any lapsed devises or reversions to parent estate, caused by widow's election to take against provisions of will, are subject to distribution under statute of descents (Rev. Gen. St. 1920, § 3619).
Appeal from Circuit Court, Putnam County; A. V. Long, Judge.
Thomas B. Dowda, J. J. Canon, and Hilburn & Merryday, all of Palatka, for appellants.
A. H. Odom, of Palatka, and Charles P. & J. J. G. Cooper, of Jacksonville, for appellee.
John B. Flinn, Sr., died testate, November 23, 1919. Surviving him were his wife, Zeolide W. Flinn, his son, John B. Flinn, Jr., and his grandson Charles Otto Flinn, besides numerous collateral relatives. Omitting the formal parts and provisions for certain legacies, the will of John B. Flinn, Sr., is as follows:
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