Hardway v. First National Bank in St. Petersburg

133 So. 2d 468
CourtDistrict Court of Appeal of Florida
DecidedOctober 6, 1961
DocketNo. 1740
StatusPublished
Cited by10 cases

This text of 133 So. 2d 468 (Hardway v. First National Bank in St. Petersburg) 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.

Bluebook
Hardway v. First National Bank in St. Petersburg, 133 So. 2d 468 (Fla. Ct. App. 1961).

Opinion

KANNER, Judge.

Executor of the will of Ann M. Muliin petitioned the County Judge’s Court of Pinellas County for construction of the will and codicil of Ann M. Muliin. The probate judge found that paragraph 1 of the codicil was so worded that the intent of the testatrix was not clear, presenting an ambiguity which made it necessary for the court to examine the will and codicil in their entireties and to take testimony whereby the true intent of the testatrix might be revealed. Appellants, heirs at law, had filed their answer to the petition for construction, asserting that there could be no [469]*469doubt as to the meaning and effect of the first paragraph of the codicil but that it revoked in toto the third paragraph and subparágraphs (a) to (c), inclusive, of the fourth paragraph of the decedent’s last will and testament, which provided for distribution of the residuary portion of the estate. They accordingly asked that the court order distribution to them of their respective intestate proportions. Certain testimony of the attorney who drafted the will and codicil and of a witness to execution of the codicil was admitted. Appellants offered no testimony. On appeal, they ■question.the probate judge’s finding of ambiguity and the admission of certain testimony, as well as his conclusion that the ■codicil revoked the residuary clause only insofar as it related to the interest of the •deceased sister of testatrix and accelerated •■the other dispositions contained in the •clause.

We are in accord with the probate judge’s holding that the codicil is ambiguous and the true intent of the testatrix obscure. Our problem, then, is to ascertain the appropriate procedure through which the -cloud of ambiguity can be dispelled so that the wishes of the testatrix may be given ■ effect.

A basic principle of construction is that a probate judge shall look to the complete testamentary instrument upon the subject of a testator’s intent. When the will and codicil here are examined, it nowhere appears that any reference is made to the appellants. Any rights which they might have to a share in the estate are thus not expressed within the four corners of those instruments but would have to arise, if at all, from an asserted act of omission whereby the testatrix is claimed to have stricken from her will all the residuary legatees through her act of revocation in the codicil. This revocation, the appellants urge, allowed the residuary to pass by intestacy to the appellants as heirs at law in default of designated beneficiaries. On the other hand, the appellees were provided for by the testatrix in paragraph two of her will by specific bequests to each of them of a named sum of $500, and they were also named in paragraph four1 as remainder-men of the residual trust after the death of the sister of testatrix. In the paragraph of revocation itself, the testatrix set out that inasmuch as her sister had predeceased her, the residual paragraphs wherein provision for the deceased sister had been made were to be revoked.2 Thus, [470]*470the testatrix herself gave voice to the reason underlying the revocation, that of the demise of her sister.

However, as to the will and codicil, the true intent of the testatrix, in the opinion of the county judge, remained a matter of ambiguity. For this reason, as pointed out by the judge in his order, it became necessary, not only that he examine the total will and codicil, but that he admit the testimony of the attorney who drafted those documents and that of a witness to the execution of the codicil. This he did under the authority of Marshall v. Hewett, 1945, 156 Fla. 645, 24 So.2d 1, as cited by him in his order.

Appellants have made no contention that any undue influence, falsification, or fraudulent conduct is present in this case; nor have they sought to controvert by evidence the testimony indicating that appellee re-maindermen rather than appellants were the intended objects of the bounty of testatrix. What appellants are contending most strongly is that the revoking paragraph is clear and unambiguous and as such may not be varied or even explained by any proffered evidence. In the alternative, they assert that if the paragraph of revocation is obscure, then it still must be interpreted on its face without recourse to any testimony or evidence tending to show that the intention of the testatrix was other than that which the written language of the instruments establishes. They insist that there exists no latent ambiguity under the language of the codicil as heretofore footnoted and that, if the revoking clause be patently ambiguous, it will not permit of construction through extrinsic evidence.

It sometimes becomes necessary that extrinsic evidence be resorted to for aid in the construction of a will because of uncertainty or doubt as to the meaning of some statement contained in it. In such instance, it is generally recognized that evidence relating to the attendant facts and circumstances existing at the time of the execution of the will and of which the testator had knowledge may be Admitted, not to vary nor to contradict any of the terms of the will, but to explain or resolve the ambiguity and so to enable the probate court to effectuate the dispositive intent of the testator. See Annotation, 94 A.L.R. 26, p. 57 et seq.; Page on Wills, volume 4, section 1623, p. 650, and section 1624, p. 655; 57 Am.Jur., Wills, section 1043, p. 677; In re Herr’s Estate, 1960, 400 Pa. 90, 161 A. 2d 32; and Conway v. Estes, Tex.Civ.App. 1961, 346 S.W.2d 374.

In this connection, the case of Marshall v. Hewett, supra [156 Fla. 645, 24 So.2d 2], cited by the probate judge as authority for the admission of extrinsic evidence to enlighten him with regard to the true intent of the testatrix, contains the following statement by the Supreme Court:

“If there are expressions in the will which are difficult to reconcile, then the situation of the testator at the time he made his will, the ties that bound him to the object of his beneficence, the motives that prompted him to make the will he did make, and the influences that wrought on him at the time, will be considered in arriving at the purpose of the testator.”

Testimony was admitted to indicate clearly the desires of the testator as to the possession, custody, and control of his property after his death, the Supreme Court stating; that these questions might otherwise have-given rise to some doubt.

A decision of this court in the case of; Pancoast v. Pancoast, Fla.App.1957, 97 So. 2d 875, delineated matters which might be properly looked to by the court where certain language used in the testamentary instrument rendered the intent ambiguous.. In determining the wishes of a testator, it was deemed proper for a court to consider [471]*471all circumstances surrounding the execution of the will, the condition, nature, and extent of the property devised, the testator’s relationship and attitudes toward the members of his family and to the beneficiaries of the will, their financial condition and in general the relationship between all the parties concerned. The court stated: ■“In order to do this the court should as nearly as humanly possible try to put itself in the place of, or the armchair of, the testator.”

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Bluebook (online)
133 So. 2d 468, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hardway-v-first-national-bank-in-st-petersburg-fladistctapp-1961.