Rewis v. Rewis

Feb 4, 1920

Versions:84 So. 93

79 Fla. 126

Whitfield, J.

This appeal is. from an order sustaining a demurrer to a bill in equity for partition of lands. It appears that Emily Taylor devised' certain real estate to her daughter, Margaret Ann Jane Bewis, “to havе and to hold during her lifetime and at her death to go'to her living children;” that complainant’s father, Lоnnie T. Bewis, was a son of Margaret Ann Jane Rewis; that he died after the death of the testatrix, Emily Taylor, and before the death of his mother, the life tenant, Margaret Ann Jane Bewis; that complainant is the only surviving child and heir at law of Lonnie T. Bewis, deceased; that he claims a share in the lands uрon the theory that the devise created a vested remainder in the children of the life tenant, Margaret Ann Jane Rewis, complainant’s father being one of the children.

If the devise creаted a vested remainder in the children of the life tenant, complainant is entitled to his share оf the land. If the devise created a contingent remainder ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍in the children of the life tenant who were living at her death, the complainant has no share in the land, since his father died before his mоther, the life tenant, died.

In the construction of a will, the intention of the testator, as therein expressed, shall prevail over all other considerations, if consistent with the principles of lаw. To this great rule in the exposition of nulls, all others must bend. Dean v. Crews, 77 Fla. 319, 81 South. Rep. 479; *128Miller v. Gaskins, 11 Fla. 73; Lines v. Darden, 5 Fla. 51; Perkins v. O’Donald, 77 Fla. 710, 82 South. Rep. 401; Floyd v. Smith, 59 Fla. 485; 51 South. Rep. 537, 138 Am. St. Rep. 133; 40 Cyc. 1386, 1388; 30 Am. & Eng. Ency. Law (2nd ed.) 764.

The court's should give effect tо the intent of a testator as expressed in the will when such intent accords with law; and a. will should be sо construed as to give effect to every word and evev part thereof without change or rejection, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍and the several clauses should be made to harmonize, and effect given tо all, provided the effect is not inconsistent with the general intent and purpose of the testator as gathered from the entire instrument. 30 Am. & Eng. Ency. Law (2nd ed.) 664.

The intention which controls in the construction of a wi 11 is that whiсh is manifest, either expressly or by necessary implication, from the language of the will, as viewed, in case of ambiguity, in the light of the situation of the testator and the circumstances surrounding him at the time it was executed, although technical words are not used; or, as is sometimes said, the testatоr’s intention must be ascertained from the four comers of the will. Hence a will cannot be cоnstrued by a mere conjecture as to the intention of the testator; but it is the intention which the testator expresses in his will that controls and no that which he may have had in his mind. 40 Cyc. 1388.

In Paul v. Frierson, 21 Fla. 529, it was held that a convеyance of land by a person in trust for his wife, M. “for and during the term of her natural life, and at her death, the said ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍property * * * shall be equally divided among such of her children by me begotten as she may leаve surviving her,” created a contingent remainder for *129the benefit of the children of the two parties whom the life tenant “may leave surviving her.” In that case the trust deed' provided for “the child or children of a deceased child to take that portion to which its parent would have been entitled,” and a grandchild was entitled, as against her father to the share of her mother who was а daughter of the parties but who died before the life tenant died. The grandchild' took a contingеnt remainder share under the will and not as heir of her mother who took nothing as she died before the life tenant.

In this case as in the Paul-Frierson case, only the children of the life tenant who survived her. had a remainder interest in the lands. But in this case there is no provision as in the Paul-Frierson casе for “the child or children of a deceased child to take that portion to which its parеnt would have been entitled,” had such parent survived the life ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍tenant. Having" devised the property to her daughter “to have and to hold during her lifetime,” it was not necessary to employ the words, “and аt her death,” to go to her living children unless it was the intention,of the testatrix by such quoted' words to fix the meaning of “her living children” as those living at the death of the life tenant.

The uncertainty as to which of the lifе tenant’s children would survive her made the remainders “at her death to go to her living children,” contingent and not vested remainders. 23 R. C. L. 501, 516; 13 Cyc. 638.

In this case only the children of the life tenant who were living at her dеath took ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍remainders in the property at the death of the life tenant. See Inge v. Jones, 109 Ala. 175, 19 South. Rep. 435; Jackson v. Everett, - Tenn. -, 58 S. W. Rep. 340; Olney v. Hull, 21 Pick. (Mass.) 311; 24 Am. & Eng. Ency. Law (2nd ed.) 397; *130In re Moran’s Will, 118 Wis. 177, 96 N. W. Rep. 367; Van Tilburgh v. Hollinshead, 14 N. J. Eq. 32; Roundtree v. Roundtree, 26 S. C. 450, 2 S. E. Rep. 171; Robertson v. Guenther, 211 Ill. 511, 89 N. E. Rep. 689, 25 L. R. A. (N. S.) 887, 897 and notes.

As the will limited the remainders to the life tenant’s “living сhildren” at her death, and as the complainant was a grandchild whose parent died beforе the death of the life tenant, and as the will made no provision that the children of the life tenаnt’s deceased children should take the portion to which their parents would have been entitled, had they survived the life tenant, the complainant has no share in the devised property sought to be partitioned.

Order affirmed.

Browne, G. J. and West, J., concur. Taylor and Ellis, J. J., dissent.