PRISCILLA PORTER, MARY ANN MANDELL, AND WILLIAM J. PORTER, JR., APPELLANTS,
v.
THE ESTATE OF LUCIA PORTER MYRICK, DECEASED, AND KATHRYN PORTER ALLIGOOD, APPELLEES

Fla. 3d DCA | 1988-03-22
No. 87-1249
Before BARKDULL, NESBITT and DANIEL S. PEARSON, JJ.
522 So. 2d 99 Florida District Court of Appeal, Third District (1988) Positive Treatment
Cited by 2 cases

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Synopsis

This case addresses the interpretation of a will's remainder provision where the testator devised property equally to her two sisters and brother, with a survivorship clause stating the property passes to "survivor or survivors" if any predeceased her. The court held that "survivor" means only those class members who outlive the testator, excluding the descendants of a predeceased class member.


Holding

The court held that "survivor" means only those individuals of the original class who outlive the testator, and does not include the children or descendants of a predeceased class member. Therefore, Myrick's sisters, as the surviving members of the class named in the will, are entitled to the brother's share.


Headnotes

[1] The word "survivor" in a will, when not otherwise defined or indicated by context, is generally interpreted to mean one who outlives another, and does not include the iss…

[2] A testamentary gift to a class of persons with a provision for "survivors" upon the death of a member of the class during the testator's lifetime will pass to the survivi…

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Key Quotes

“the authorities are generally to the effect that the word 'survivor' should be given its literal interpretation as meaning one who outlives another, one of two or more persons who live after the other or others have died”

Establishes the plain language rule for interpreting "survivor" in wills

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Facts & Procedural History

Lucia Porter Myrick's will devised the remainder of her estate equally to her two sisters and brother, with a provision that if any failed to survive …

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Opinion of the Court
PER CURIAM.

PER CURIAM.

The question on this appeal is who is entitled to the remainder of the estate of Lucia Porter Myrick where Myrick’s last will and testament devised such remainder to her two sisters and her brother equally with the proviso that “[i]f either of my sisters or my brother shall not survive me, then I bequeath and devise the said property in fee and in equal shares unto the survivor or survivors of them.” Mynck was survived by her two sisters. Myrick’s brother, William Porter, predeceased Myrick and left three children— Priscilla Porter, Mary Ann Mandell, and William J. Porter, Jr. Porter’s children and Myrick’s sisters each claimed that they, as the survivors of Porter, were entitled to his one-third share of the remainder. The trial court ruled that Myrick’s sisters were entitled to Porter’s share. We affirm.

The parties agree that nothing appears in Myrick’s will and there are no other circumstances to show that she intended the word “survivor” to be given any meaning other than its literal or common one. That being so,

“the authorities are generally to the effect that the word ‘survivor’ should be given its literal interpretation as meaning one who outlives another, one of two or more persons who live after the other or others have died.

“ ‘The word ‘survivors’, when used of a class, is limited to the individuals of such a class, and does not include their children.’ 3 Page on Wills, 174, Section 1037.

“The word ‘survivor’ will usually exclude representatives so that the last survivor of a class will take the whole share of one dying although others of the class have all died leaving issue. Shouler on Wills, Executors and Administrators, Sixth Edition Volume2, Section 1060.” In re Estate of Gallop, 248 So. 2d 686, 688 (Fla. 4th DCA 1971) (quoting Croft v. McKie, 235 S.C. 231, 237-38, 111 S.E. 2d 210, 213-14 (1959)).

Thus,

“If a testamentary gift is made to a class of persons with a provision in favor of the ‘survivors’ upon the death of one of the members of the class during the testator’s lifetime, the surviving members of the class succeed to the entire interest. In other words, the interest of a member of a class who predeceases the testator will not pass in favor of his estate or in favor of his descendants, but inures to the benefit of the survivors of the class as specifically intended by the testator.”

Accordingly, the order under review is

Affirmed.

Footnotes
2 T. Thomas & D. Smith, Florida Estates Practice Guide 22-3, 22-4 (1987).

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Citator

Cited By

  • …that Chauncy incorrectly interprets this provision of the will. We agree. There was nothing in the will or other circumstances to show that the word ‘survivor’ intended to be given any meaning other than its common one. See Porter v. Est. of Myrick, 522 So. 2d 99, 100 (Fla. 3d DCA 1988). Generally, “the word ‘survivor’ should be given its literal interpretation as meaning one who outlives another, one of two or more persons who live after the other or others have died.” Id. (quoting In re Gallop’s Est., 248…
  • …that Chauncy incorrectly interprets this provision of the will. We agree. There was nothing in the will or other circumstances to show that the word ‘survivor’ intended to be given any meaning other than its common one. See Porter v. Est. of Myrick, 522 So. 2d 99, 100 (Fla. 3d DCA 1988). Generally, “the word ‘survivor’ should be given its literal interpretation as meaning one who outlives another, one of two or more persons who live after the other or others have died.” Id. (quoting In re Gallop’s Est., 248…

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