Taylor v. Payne
| Decision Date | 21 April 1944 |
| Citation | 154 Fla. 359,17 So.2d 615 |
| Parties | TAYLOR et al. v. PAYNE. |
| Court | Florida Supreme Court |
Rehearing Denied May 12, 1944.
Appeal from Circuit Court, Highlands County; D. O Rogers, judge.
W. D Bell, of Miami, for appellants.
Joe D Kinsey, Howard G. Livingston, and Kinsey & Livingston, all of Sebring, and Ausley, Collins & Ausley, of Tallahassee, for appellee.
P. T. Richards died testate leaving no issue of his body, or adopted children, or lineal descendants of either, surviving him. His last will and testament was executed within six months prior to his death. His widow, Isabelle, was appointed by his will to serve as executrix without bond. At the time of his death Richards was the owner of a certain contract and a certain mortgage, the exact nature of which is not shown by the record, but upon which installments of money were payable to the owner from time to time. By a provision of his will the testator bequeathed to his widow, for life, any proceeds derived from the contract and mortgage during her lifetime, with directions that at her death any balances then due, or thereafter to become due, on the same should be and become the property of the Trustees of the Lake Placid Methodist Church, to be used for the purpose of repairing and painting the buildings on the church property.
At the time of the execution of the will, and the death of the testator, there was in force in the State of Florida section 20 of [17 So.2d 617] the Probate Act of 1933, c. 16103, which provided that if a testator dies leaving issue of his body, or an adopted child, or the lineal descendants of either, or a spouse, and the will of such testator devises or bequeaths the estate of such testator, or any part thereof, to a benevolent, charitable, literary, scientific, religious or missionary institution, corporation or association or purpose, or to this State, or to any other state or country, or to a person in trust for any such purpose or beneficiary, whether such trust appears on the face of the instrument making such devise or bequest, or not, such will as to such devise or bequest shall be invalid unless it was duly executed at least six months prior to the death of the testator. See Sec. 731.19, Florida Statutes 1941, F.S.A.
The will was admitted to probate in the County Judge's Court of Highlands County on December 5, 1938, and the widow duly qualified as executrix. On September 7, 1939, she died, before administration of the estate had been fully completed. On April 24, 1940, Mary Emma Payne was appointed administratrix with the will annexed of the property, goods and chattels of the estate of P. T. Richards not administered. Among the assets of the estate coming into her hands as personal representative were the contract and mortgage above referred to, upon which certain moneys were still due and owing.
On September 16, 1941, the Trustees of the Lake Placid Methodist Church filed their petition in the County Judge's Court of Highlands County reciting the facts we have narrated and alleging that as trustees for the remainderman, Lake Placid Methodist Church, they are entitled to the contract and mortgage and the proceeds thereof, but that the administratrix c.t.a. d.b.n. refuses to turn the same over to them because of the effect of section 20 of the Probate Act upon attempted devises and bequests to religious institutions made within six months of the death of the testator. The prayer of the petition is that the court construe the will so far as it pertains to the petitioners, declare the rights of the petitioners thereunder, and direct and require the personal representative to account for and disburse to petitioners the proceeds of the contract and mortgage. On motion to strike filed by the personal representative, the County Judge dismissed the petition without leave to amend. Upon appeal taken by the trustees, the Circuit Court of Highlands County affirmed the order of the County Judge, holding that upon the facts averred in the petition the bequest to the trustees was null and void under section 20 of the Probate Act. This appeal is from that decree.
By their first assignment of error the appellants question the constitutionality of section 20 of the Probate Act, contending that the statute is violative of the organic law in that it deprives the testator and the legatees of the right to receive, enjoy and dispose of property without due process of law, and denies them the equal protection of the law in the acquisition and disposition of property. The contention is without merit. The right to receive or dispose of property by last will and testament is not an inherent right, nor is it one that is guaranteed by the fundamental law. Nowhere in the Federal Constitution is there any attempt to treat of the matter of disposition of property by will, no reference being made to the subject of testamentary alienation of property, either directly or by implication. And except as the power to will property has been limited indirectly by Article X of the Constitution of Florida, which inhibits the alienation of homestead property by will where the owner thereof has children in esse, no effort at constitutional regulation of the subject has been made by the people of the State of Florida. Therefore, the right of testamentary disposition of property does not emanate from the organic law, as contended by counsel, but is a creature of the law derived solely from statute without constitutional limitation. Accordingly, the right is at all times subject to regulation and control by the legislative authority which creates it. The authority which confers the right may impose conditions thereon, such as limiting disposition to a particular class or fixing the time which must ensue subsequent to the execution of the will before gifts to a particular class shall be deemed valid; or the right to dispose of property by will may be taken away altogether, if deemed necessary, without private or constitutional rights of the citizen being thereby violated. Thomas v. Williamson, 51 Fla. 332, 40 So. 831, 834; Patton v. Patton, 39 Ohio St. 590, 596; In re Noyes' Estate, 40 Mont. 178, 105 P. 1013; In re Beck's Estate, 44 Mont. 561, 121 P. 784, 1057; In re Walker's Estate, 110 Cal. 387, 42 P. 815, 1082, 30 L.R.A. 460, 52 Am.St.Rep. 104; Redfearn on Wills and Administration of Estates in Florida, pp. 42 et seq.
The next question raised on appeal is whether anyone other than the appellants may take the subject matter of the bequest by virtue of the provisions of section 731.19, Florida Statutes 1941, F.S.A.; the testator having died within six months after the execution of his will leaving surviving him only his spouse, who likewise died shortly thereafter, the subject matter of the bequest then passing into the hands of the administratrix c.t.a.d.b.n. as unadministered assets of the testator.
This is a case of first impression in this jurisdiction. The question is presented calls for the construction of the statute involved. For if it be determined that all bequests to benevolent charitable, educational or religious institutions made under the circumstances encompassed by the statute are absolutely void, that will put an end to this controversy without further considerations, because, all such bequests being void, the subject matter of this litigation is intestate property which descended in accordance with the statute of descent and distribution upon the death of the testator. On the other hand, if it be our construction that under the statute such bequests are voidable only, at the election of those within the class of persons against whom the statute says such bequests shall be...
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...right is at all times subject to regulation and control by the legislative authority which creates it . . .' Taylor v. Payne, 154 Fla. 359, 362--363, 17 So.2d 615, 617 (1944), app.dism. 323 U.S. 666, 65 S.Ct. 49, 89 L.Ed. 541, reh. den. 323 U.S. 813, 65 S.Ct. 113, 89 L.Ed. 647 (1944).6 Just......
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