RALPH OTIS DAVIS AND LOUISE DAVIS YAEGER, APPELLANTS,
v.
WM. H. ARKENBERG ET AL., APPELLEES
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The court held that the will's disposition was to individuals, not a class, and therefore the gifts from predeceased beneficiaries lapsed.
A testatrix named specific individuals as beneficiaries in her will. Three of these named beneficiaries predeceased the testatrix. The issue is whethe…
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This is a will construction case.
A testatrix disposed of eight items of her real and personal property “to E. R. Davis Jr., Ralph Otis Davis, W. W. M. Davis, Louise Davis Yaeger and Frances Davis Talcott, who are the children of my late husband E. R. Davis. * * * ” Three of the named beneficiaries predeceased the testatrix.
Was this a testamentary disposition to individuals or was it to a class ?
If the recipients are construed as “individuals”, then under the facts of this case the gift would lapse, according to F.S.A. § 731.20, and become, by the operation of the law of descent and distribution, the property of the testatrix’ lineal descendants, who are the appellees.
If the recipients are construed as members of a “class”, then the surviving members of the class would be entitled to receive the interests of the deceased class members. Such survivors are the appellants here.
The trial court decreed that the disposition “constituted gifts to individuals, and not gifts to a class, and, therefore * * * lapse in accordance with the provisions of Sec. 731.20(1) Florida Statutes.”
Considering the rules of construction and the proper indicia whereby a testatrix’ intention is measured, and particularly the fact that the beneficiaries were referred to by name, we are altogether persuaded that *47the proper construction was placed upon the will by the trial court. We, therefore, affirm by authority of Douglas v. Hardin, Fla.App.1960, 120 So.2d 190, and In re Eltzeroth’s Estate, Fla.1955, 83 So.2d 772. See also Magruder v. Magruder, Fla.App.1963, 157 So.2d 86; 35 Fla.Jur., Wills, § 297.
Affirmed.
WALDEN, C. J., ANDREWS, J., and McDonald, PARKER LEE, Associate Judge, concur.
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In re Est. of Felix Levy v. Hebrew Tech. Inst., 196 So. 2d 225 (Fla. 3d DCA 1967)…N.E. 2d 696. Treating paragraph “Second” of the will as a residuary clause, the probate court held that upon the lapsing of the legacies [*229] of three of the six “residuary” legatees (not members of a class — Cf. Davis v. Arkenberg, Fla.App.1967, 195 So. 2d 46), the shares of the three who died during the lifetime of the testator did not pass by intestacy, but passed to the remaining three “residuary” legatees. Much of the argu-' ment was directed to that proposition, but because we hold that paragraph “S…
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Murray Cohen v. Murray Cohen, 333 So. 2d 114 (Fla. 3d DCA 1976)…court that it was the intent of Joseph and Jean Schwartz to bequeath and devise their estate so that each of the five legatees, named in their mutual will, would each receive a one-fifth share of their estate. See Davis v. Arkenberg, Fla.App. 1967, 195 So. 2d 46, and Dixon v. Davis, Fla.App.1963, 155 So. 2d 189, construing the term “share and share alike.” The testators of the mutual will did not anticipate the death of any legatee during their lifetimes and made no provision that the testamentary dispositi…
Authorities Cited
- Magruder v. Ches G. Magruder under the Last Will and Testament of Carrie Josie Magruder, 157 So. 2d 86 (Fla. 2d DCA 1963)
- In re Eltzeroth's Estate. George C. Jarrett v. Roscoe G. Eltzeroth, 83 So. 2d 772 (Fla. 1955)
- Mrs. H. H. Douglas v. Hardin, 120 So. 2d 190 (Fla. 2d DCA 1960)