NANCY ELLEN FILKINS, A MINOR BY W. M. MURPHY, JR., GUARDIAN AD LITEM, APPELLANT,
v.
J. THOMAS GURNEY, AS EXECUTOR OF THE ESTATE OF EVELYN E. RICHARDSON, DECEASED, AND FIRST BAPTIST CHURCH OF ORLANDO, APPELLEE
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Nancy Ellen Filkins, a minor beneficiary under the will of Evelyn E. Richardson, appealed the trial court's construction of a disputed provision in the will. The appellate court affirmed the trial court's interpretation, holding that where will language is unambiguous on its face, the words must be given their ordinary meaning without invoking special rules of testamentary construction.
The court held that where will language is unambiguous and clear on its face, the words should be given their ordinary and usual meaning without resort to special construction rules. The trial court's construction, which gave the language its common and ordinary meaning, properly interpreted the testator's intent.
“It is rudimentary in construing a will that the intention of the testator is the guiding and determining factor and that a will cannot be construed by conjecture or surmise as to such intention.”
Establishes the primary principle that testator's intent is paramount in will construction and cannot rely on speculation.
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Join FLexlaw to unlock all legal intelligenceEvelyn E. Richardson executed a last will and testament naming Nancy Ellen Filkins (also known as Nancy Ellen Richardson), a minor and sole lineal des…
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Appellee, J. Thomas Gurney, petitioner in the court below, sought judicial construction of a certain portion of the last will and *58testament of Evelyn E. Richardson, deceased. Being discontent with the ruling of the trial court, Nancy Ellen Richardson, also known as Nancy Ellen Filkins, a minor and a beneficiary under the will as sole lineal descendant of the testatrix, through her guardian ad litem has brought the matter to this court.
It is unnecessary to recite that portion of the will about which this appeal is concerned. The respective positions of the appellant and appellees have been that the language of the part of the will in question is clear and unambiguous on its face, and this view has been adhered to before this court. It is rudimentary in construing a will that the intention of the testator is the guiding and determining factor and that a will cannot be construed by conjecture or surmise as to such intention. Nor can a court reconstruct or alter a will according to a notion of what the testator should have done but must be governed by its interpretation of testatorial intent as gathered from the language of the total testament.
Since the language of the will is conceded to be unambiguous, the words employed in the instrument should be given their usual meaning, and this rule should prevail over any perversion of words from their ordinary significance, unless some other meaning was intended. A court must assume that a testator meant what was said in the will. Floyd v. Smith, 1910, 59 Fla. 485, 51 So. 537, 37 L.R.A..N.S., 651; Lowrimore v. First Savings & Trust Co. of Tampa, 1931, 102 Fla. 740, 140 So. 887, 891; Mosgrove v. Mach, 1938, 133 Fla. 459, 182 So. 786; and Wallace v. Wallace, 1935, 118 Fla. 844, 160 So. 377.
In order for the rules and canons of testamentary construction to be invoked so as to determine the signification of the wording employed in a will, there must be a discernible ambiguity or uncertainty arising from the language used and obscuring the intent of the testator. The wording involved here is neither obscure nor abstruse in its meaning and intent. The trial judge followed the common and ordinary meaning of the wording of the will in his contextual construction, expressing in his own verbiage what clearly appears to be the same intention and meaning found in the words actually employed by the testatrix.
The construction given by the trial judge to the part of the will being construed, when considered in connection with the whole testament, constitutes a proper one, and the order is therefore affirmed as entered.
Affirmed.
ALLEN, J., and FARRINGTON, OTIS, A. J., concur.
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In re Est. of Douglas Deane v. Edward F. Butler Ad Litem of the Estate of Douglas Deane, 153 So. 2d 26 (Fla. 3d DCA 1963)…ant’s contention that it was error to admit testimony relative to such declarations for this purpose is without merit. . Johns v. Townsend, 160 Fla. 213, 34 So. 2d 565; Allen v. Fisher, 138 Fla. 757, 190 So. 264. . Filkins v. Gurney, Fla.App.1959, 108 So. 2d 57; Pancoast v. Pancoast, Fla.App.1957, 97 So. 2d 875; Mosgrove v. Mach, 133 Fla. 459, 182 So. 786; Murphy v. Murphy, 125 Fla. 855, 170 So. 856; Goertner v. Gardiner, 125 Fla. 477, 170 So. 112; Rewis v. Rewis, 79 Fla. 126, 84 So. 93.…
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In re Est. OF Vincent Joseph Budny v. Mikell, 815 So. 2d 781 (Fla. 2d DCA 2002)…Dutcher, 437 So. 2d 788, 789 (Fla. 2d DCA 1983). However, such aids to testamentary construction may be employed only when the testator’s intent is obscured by a discernible ambiguity or uncertainty arising from the language used. Filkins v. Gurney, 108 So. 2d 57, 58 (Fla. 2d DCA 1959); see also In re Estate of Wood, 226 So. 2d 46 (Fla. 2d DCA 1969). Here, the probate court made no finding that the will was ambiguous, and it was not. The clear and unambiguous terms of the will could not be altered by extrins…
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In re Est. of Shorey Cameron Guess, 213 So. 2d 638 (Fla. 3d DCA 1968)…provision into the will. It is not the function of courts to make or reconstruct wills according to> their notions of what testators should do. Floyd v. Smith, 59 Fla. 485, 51 So.537, 540, 37 L.R.A.,N.S., 651 (1910); Filkins v. Gurney, Fla.App.1959, 108 So. 2d 57. It follows therefore that the order appealed must be reversed, and the cause remanded to the probate court for further proceedings not inconsistent with this opinion. Reversed and remanded. . “Will void as affecting surviving divorced spouse. —…
Previewing 3 of 11 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Mosgrove v. Mach, 133 Fla. 459 (Fla. 1938)
- Alvina Lewiza Floyd v. Augustus V. S. Smith, 59 Fla. 485 (Fla. 1910)
- Rose v. Raffell, 102 Fla. 740 (Fla. 1931)
- Mollie Mottier Wallace & Tr. under the Last Will & Testament of D. B. Wallace v. Wallace, 118 Fla. 844 (Fla. 1935)
- Lowrimore v. First Sav. & Tr. Co. of Tampa, 102 Fla. 740 (Fla. 1931)