59 Fla. 485 | Fla. | 1910
The appellant filed a bill in the circuit court of Duval County on August 12th, 1907, against Augustus Y. S. Smith, to which a demurrer for want of equity was opposed, and the demurrer sustained. Subsequently two amended bills were filed by leave of court, in the last of which Pearl Thorn Floyd Rowan and her husband Thomas G. Rowan were made parties defendant. A demurrer to the first of these amended bills was filed for want of equity, which was sustained. To the other amended bill Avas filed a demurrer for want of equity on October 5th, 1908, and on December 9th, 1908, a decree was entered dismissing the bill for failure to set down the demurrer for argument. An appeal was taken from this order.
The matter before us involves the construction of the will of Augusta Levi, mother of appellant Alvina Lewiza Floyd, and grandmother of appellees A. V. S. Smith and Pearl Thorn Floyd Rowan. The items of the will which are to be construed are as follows:
“2nd. I give, devise and bequeath to my grandson Augustus Y. S. Smith, all the rest and residue of my estate, real, personal and mixed of every name and nature whatever and wherever situated and which I may hereafter and from time to time in any way acquire or to which I may be rightfully entitled, to have and to hold to him and to his heirs and assigns to his and their own proper use, benefit and behoof forever.
3rd. It is my intention to make no provision in this my last will and testament for my daughter Alvina Lewiza*487 Floyd, widow of G. Wash Floyd, or my granddaughter Pearl Thorn Floyd, daughter of said Alvina Lewiza Floyd, as in my judgment they will be more amply provided for by my said grandson Augustus V, S. Smith, the son of my said daughter Alvina Lewiza Floyd, by her first husband, than they could be by me in this my last will and testament.”
The will was probated in Volusia county, Florida, on the 22nd of May, 1902, and Augustus V. S. Smith was named and qualified as executor. The bill alleges in substance that the property involved is of the value of about $30,000; that the oratrix has no estate or income, and for many years prior to her mother’s death she was dependent upon the latter to a large extent for maintenance and support; that oratrix is a widow, with no one upon whom she has any legal right to call for support except her son, the appellee A. V. S. Smith, and that since her mother’s death she has been in very straightened circumstances, and although she has made repeated demands upon her said son for aid and assistance he has persistently refused to make any provision for her, either out of the ample estate of her late mother, or out of his own funds, and has left oratrix to earn a living by sewing, or such other employment as she has been able to obtain.
The bill alleges that by the 3rd paragraph of her mother’s will the defendant A. V. S. Smith is constituted a trustee of the whole estate of her deceased mother for the benefit of oratrix and her daughter Pearl, a moiety to each, and that she is entitled to an accounting, etc. to have him removed as such trustee, and a moiety of the property conveyed and turned over to her or a new trustee should be appointed by the court. The bill prays for the appointment of a master to take an account, that A. V. S. Smith be compelled to convey to oratrix one-half of the real and personal estate; that he be compelled to execute
It is evident the Circuit Judge considered that by the terms of the will the appellant was given no interest in the estate of her mother which a court of equity could enforce. It is admitted that by the 2nd paragraph of the will all the estate, real, personal and mixed of the testator is devised and bequeathed to Augustus V. S. Smith and his heirs'and assigns in fee simple, but it is contended that the 3rd paragraph fixes upon the said estate a trust in favor of appellant.
It is said in Lines v. Darden, 5 Fla., 51, that “in the construction of a will, the intention of a testator, as therein expressed, shall prevail over all other considerations, if consistent with the principles of law. To this first and great rule in the exposition of wills, all others must bend. Courts allow of no rule of construction of mere words to control the intention, but the whole instrument is to be considered, and if possible, effect given to every part of it. The relative situation of the parties, the ties and affection subsisting between them, besides the motives which would naturally influence the mind of the testator, are proper to be considered in expounding the import of doubtful words.” It is further held that “to constitute a trust, three circumstances must concur: sufficient words to raise it—a definite subject-—and a certain and ascertained object. No commendatory terms of a will expressing a 'wish,’ 'will,’ or 'desire’ are sufficient, unless there be certainty as to the parties who are to take and what they are to take. Whenever the subject to be administered as trust property, and the object for whose benefit it is to be ad
In this case a testator by one clause of his will gave and bequeathed to his beloved and only daughter all his estate during her natural life, and at her death directs the prop
In Colton v. Colton, 127 U. S., 300, 8 Sup. Ct. Rep. 1164, the words of a will were “I give and bequeath to my said wife E. M. C. all of the estate, real and personal, of which I shall die seized, possessed or entitled to. I recommend to her the care and protection of my mother and sister, and request her to make such gift and provision for them as in her judgment will be best.” These words were construed as giving the mother and sister of the testator a beneficial interest in the estate given to the wife to the extent of a permanent provision for them during their respective lives, suitable and sufficient for their care and protection, having regard to their condition and necessities, and the amount and value of the fund from which it must come. It is held it was the duty of the court to ascertain, determine and declare what provision would be suitable and best under the circumstances and all particulars and details for securing and paying it. It is also held that “when property is given by will absolutely and without restriction a trust is not to be lightly imposed upon mere words of recommendation and confidence; but if the objects of the supposed trust are definite and the property clearly pointed out, if the relations between the testator
Applying these general principles to the 3rd paragraph of the will of Mrs. Augusta Levi, can we say that she in
The will in the instant case was not contested so far as the record shows. It was probated in 1902. Five years after its probate we are asked to construe it, and though we are not insensible to the ethical and sentimental considerations presented by the record, we are constrained to hold that no such trust was created by the will in favor of the appellant as a court of equity can enforce.
The decree appealed from is affirmed.
Petition for rehearing in this case denied.