Campbell v. Campbell

489 So. 2d 774
District Court of Appeal of Florida·Decided June 10, 1986·No. 85-1848·Published·Cited by 14 cases

Opinion

489 So.2d 774 (1986)

Richard W. CAMPBELL and Harold T. Collins, Appellants,
v.
Gladys B. CAMPBELL, Ira M. Elegant, As Guardian Ad Litem and Florida National Bank, As Co-Personal Representative of the Estate of Harold G. Campbell, Appellees.

No. 85-1848.

District Court of Appeal of Florida, Third District.

April 29, 1986.
On Motion for Rehearing June 10, 1986.

*775 Sherman & Fischman and Bruce Fischman, Miami, for appellants.

Edward I. Golden and Paul M. Cowan, Buchbinder & Elegant and Ira Elegant, Miami, Joseph H. Murphy, Jr., Coral Gables, for appellees.

Before SCHWARTZ, C.J., and HENDRY and NESBITT, JJ.

SCHWARTZ, Chief Judge.

The appellants, the brother and nephew of the testator, seek review of an order which construed the will of Harold G. Campbell as unambiguously granting them a total of one-third of his holdings in a Pennsylvania business partnership. They contend that the will itself gives rise to a reasonable uncertainty as to whether they were instead each entitled to a one-third interest and that proffered extrinsic evidence of the decedent's intent should therefore have been considered below. We agree and reverse for resolution of the controversy after an evidentiary hearing.

The instant dispute arose when the personal representative of Campbell's estate petitioned for the construction of, among others, the following portion of his will:

[II] (f) I give, devise and bequeath unto Richard W. Campbell, my brother, and Harold T. Collins, my nephew, in equal proportions all my real estate upon which is situate the Williamsport Candy Company and Williamsport Sporting Goods *776 Company, located on Montoursville Road, Williamsport, Pennsylvania, together with an undivided one-third (1/3) interest in my partnership holdings in said concern. I further give and bequeath unto Robert Guthrie and Charles J. Campbell, an undivided one-sixth (1/6) interest apiece in my partnership holdings in said concern. [e.s.]

At the hearing on the petition, the present appellees — the personal representative, Gladys Campbell, the testator's widow and principal residuary legatee, and the guardian ad litem — all contended that the emphasized portion of the devise unambiguously granted only one-third of Harold's interest in the Williamsport Candy and Sporting Goods partnership to both Richard Campbell and Collins. Considering the one-sixth interest "apiece" granted to Guthrie and Charles Campbell, this would pass only two-thirds of the business holdings, leaving the remaining one-third to fall into the residue. Richard Campbell and Collins, proffering evidence beyond the face of the will in support of their contention,[1] argued on the other hand that they were each to receive one-third of the partnership, thus resulting in a disposition of all of the property.

The trial court declined to consider the proffered evidence ruling as follows:

[I]n regard to paragraph II (f) of the Last Will and Testament of HAROLD G. CAMPBELL, Deceased, dated August 5, 1974, as said paragraph relates specifically to the decedants devise of his Partnership holdings in the Williamsport Candy Company and Williamsport Sporting Goods Company, that no ambiguity exists in the language of said paragraph and that distribution of the Decedant's Partnership holdings shall be as follows:
(a) One third (1/3) to be divided equally between Richard W. Campbell and Harold T. Collins.
(b) One Sixth (1/6) to Robert W. Guthrie.
(c) One Sixth (1/6) to Charles J. Campbell.
(d) One third (1/3) to become part and parcel of the residuary of said estate which shall be determined and to be distributed in accordance with the provisions thereof.

We find error in this conclusion.

In considering the appellants' sole contention that the proper interpretation of paragraph II (f) may be resolved only after consideration of parol and extrinsic evidence, we start with the apodictic principle *777 that such evidence may be received if, but only if, the will is in some way "ambiguous." Perkins v. O'Donald, 77 Fla. 710, 82 So. 401 (1919); Hulsh v. Hulsh, 431 So.2d 658 (Fla. 3d DCA 1983), pet. for review denied, 440 So.2d 352 (Fla. 1983); In re Estate of Rice, 406 So.2d 469 (Fla. 3d DCA 1981), pet. for review denied, 418 So.2d 1280 (Fla. 1982). Everyone agrees with this proposition; the argument is, as usual, only over whether an ambiguity in fact exists in this particular instance. Contrary to the determination below, we conclude that there is a "patent ambiguity"[2] — that is, a genuine uncertainty which results in alternative possible reasonable constructions of the language of the will; Rice, 406 So.2d at 476 — as to whether II (f) gave each of the appellants or both of them together one-third of the partnership.

In our view, this ambiguity appears on the face of II (f) in two separate respects:

1. The result of the interpretation adopted below, although it acknowledgedly tracks the literal language of II (f), is that Richard Campbell and Harold T. Collins, sharing as they do a one-third interest, each receive an undivided one-sixth interest in the partnership. But this is exactly what Guthrie and Charles J. Campbell explicitly receive under the totally unambiguous next sentence of the same paragraph. Grave doubt is cast upon the acceptability of the outcome reached below by the fact that the testator used entirely different expressions supposedly to grant the four persons the same respective interests. Just as it is recognized that the same words used in two parts of an instrument are deemed to mean the same thing in both places, 17A C.J.S. Contracts § 303 (1963); 17 Am.Jur.2d Contracts § 248 (1964), so, as in this case, the use of different language strongly implies that a different meaning was intended. See Persinger v. Islamic Republic of Iran, 729 F.2d 835, 843 (D.C. Cir.1984) ("When Congress uses explicit language in one part of a statute to cover a particular situation and then uses different language in another part of the same statute, a strong inference arises that the two provisions do not mean the same thing. See Russello v. United States, 464 U.S. 16, 104 S.Ct. 296, 300, 78 L.Ed.2d 17 (1983); United States v. Martino, 681 F.2d 952, 954 (5th Cir.1982) (en banc), quoting United States v. Wong Kim Bo, 472 F.2d 720, 722 (5th Cir.1972)."), cert. denied, ___ U.S. ___, 105 S.Ct. 247, 83 L.Ed.2d 185 (1984). Thus, the common sense observation that if Campbell wanted to leave the appellants one-sixth each as he clearly did Guthrie and Charles Campbell, he would have said so in the same way, leads to the eminently reasonable conclusion that, by not doing so, he may have intended something else.

2. As has been noted, the application of the "one-third plus two one-sixths" version of II (f) has the consequence of disposing of only two-thirds of the partnership interest in an ongoing business.

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