Cohen v. Raschkind

District Court of Appeal of Florida

Cohen v. Raschkind

196 So. 2d 447, 1967 Fla. App. LEXIS 5026

CourtDistrict Court of Appeal of Florida

DecidedMarch 14, 1967

DocketNo. 66-508

StatusPublished

Cited by1 cases

This text of 196 So. 2d 447 (Cohen v. Raschkind) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Cohen v. Raschkind, 196 So. 2d 447, 1967 Fla. App. LEXIS 5026 (Fla. Ct. App. 1967).

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Opinion

SWANN, Judge.

The widow of Samuel Cohen, deceased, appeals from a final order of the County Judges’ Court of Dade County, Florida, which construed the terms and provisions of the will of Samuel Cohen.

The executor of the will petitioned for a construction of the will because of uncertainties in its mind as to the method in which a marital deduction trust established by the will for the benefit of the widow should be funded.

The proper interested parties were served with copies of the petition and those who desired filed their answers, setting forth their respective positions concerning the construction of the will.

A notice of hearing was served on all parties and a hearing was held before the judge, at which time no testimony was taken but oral argument was advanced concerning the construction of the instruments before the County Judge. No testimony was proffered and the record reflects no objections to this procedure at that time. The court thereafter entered its final order, from which this appeal has been taken.

We have carefully examined the order, the record and the briefs and do not find that reversible error has been clearly demonstrated.

Since a doubt existed because the testator’s language did not clearly express or convey his intention as to the method of funding the marital deduction trust, it was proper for the court to use the canons and rules of testamentary construction as an aid in arriving at its opinion. 35 Fla. Jur. Wills, § 258.

We have not been shown that the County Judge was clearly in error when he found that there were no special circumstances herein which required parol testimony to supply, enlarge or explain the testator’s intention as to the method by which the marital deduction trust in the will should be established.

It appears that the intention of the testator was ascertainable from the instruments before the County Judge and that he was correct in ruling.

The order appealed from is

Affirmed.

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