DePass v. Kansas Masonic Home Corp. (132 Fla. 455, 1938)

Brown, J.

This case involves the following question: Where a testatrix, who owns certain valuable personal property of her own, and who holds the power under her deceased husband’s will to dispose of all of his estate, both real and personal, by sale or by will, as she may see fit, executes a' will in which she makes no reference to the power nor to the property which is the subject of the power, but bequeaths in general terms “all my estate, both real and personal” to'a named devisee, does this bequest constitute an execution of the power appointed to her in her deceased husband’s will, so as to vest, in her named devisee at her death all the real and personal property owned by her husband at the time of his death?

This is a case of first impression in this jurisdiction, though the general question involved has been considered and decided by a number of English and American courts. It has been very ably briefed and argued here, and we might welcome this opportunity to outline and discuss all the arguments advanced by counsel, and review the important cases and erudite opinions dealing therewith, if time and the demands of a heavy docket permitted—which they do not.'

This is an appeal from an order made by the Circuit Court for Alachua County denying appellant’s motion to dismiss appellee’s amended bill. In connection with said order, Honorable- H. L. Sebring, the Circuit Judge, presiding as chancellor in this case, rendered a well considered opinion, wherein the pertinent facts 'of the case are' set forth, as well as his reasons for denying said motion, and which reads as follows:

“This is a suit brought for the interpretation of a will under Sections la and 2, Chapter 7857, Acts of 1919 (Section 4953-4, C. G. L.), authorizing declaratory decrees.

“On or about February 21, 1935, H. L. Brannon died, leaving a last will and testament. On February 26, 1935, said last will and testament was duly admitted to probate in- the County Judge’s Court of Alachua County, Florida. In and by said last will and testament, the testator, after directing the payment of his just debts' and funeral ex-; penses, devised and bequeathed unto his wife, Mamie E. Brannon, for and during her life, ‘all of my estate, both real and personal, with full power to sell, mortgage, or dispose of as she may see fit, or any part thereof, confiding in her good judgment- ultimately to dispose of the property by will or otherwise in her discretion.’ The testator provided, further that ‘all of my said estate that remains after the death- of my said wife, or that she shall not have disposed of during her lifetime by will or otherwise, I devise and bequeath as follows in fee absolute: One-half thereof to the Masonic Home of Wichita, Kansas, and the other one-half thereof to the Florida State Conference of Seventh Day Adventists, Orlando, Florida.’ The testator then norm inated his wife, Mamie E. Brannon, sole executrix of said last will and testament, to serve without bond or other security.

“About three months later, the said Mamie E. Brannon died, leaving a last will and testament, dated March 22, 1935, which has been duly admitted to probate in the County Judge’s Court of Alachua County, Florida. In and by said last will and testament, the testatrix, after directing the payment of her funeral expenses and just debts, devised and bequeathed ‘unto my beloved friend and physician, M. H. DePass, * * * all of my estate both real and personal.’ The testatrix then nominated the said M. H. DePass as sole executor of said last will and testament, to. serve without bond or security; and provided, further that ‘in case the said M. H. DePass dies before I do, then I devise and bequeath to Mayre DePass Spain, the daughter of the said M. H. DePass, all of my estate, both real and personal, and appoint her as my executrix .to serve without bond or security.’

“Counsel agree that at the time of the execution of her will, and at the time of her death,-Mamie E. Brannon was possessed of no real estate other than that which was attached to the power, and disposable by her under the same. She did, however, own, in her own right and absolutely, certain personal property other than that which was the subject of the power. To be more explicit; the inventory and appraisement of the real and personal property of the estate of H. L. Brannon, which was duly filed in the office of the County Judge of Alachua County, and which is made a part of the amended bill of complaint, shows that at the time of his death he owned 30 shares of Mountain State Telephone & Telegraph Company stock, of the value of $3210.00; 169 shares of American Telephone & Telegraph Company stock, of the value of $22,125.00; household goods and personal effects; and Lots 8, 9 and 11 of Gregory’s Annex to the City of Gainesville. The inventory and appraisement of the estate of Mamie E. Brannon, which was duly filed with said County Judge, shows 30 shares of Mountain State Telegraph & Telephone Company stocks, of the value of $3210.00; 203 shares of American Telephone & Telegraph Company stock, of the value of $23,125.00; cash in bank, $1136.52; household goods and personal effects; and Lots 8, 9, and 11 of Gregory’s Annex to the City of Gainesville.

“The question arising on these facts is whether or not the devise in the will of Mrs. Brannon was an execution of the power of appointment conferred upon her in the will of H. L. Brannon.

“Whether a general devise or bequest is a due execution of a power to appoint property depends, as in all other cases involving the construction of wills, on the intention of the testator. The generally accepted rule concerning the question whether there has been'an execution of the power is that if the donee of the power intends to execute it, and the mode be in other respects unexceptionable, that intention, however manifested, will make the execution valid and operative. But the intention to execute the power must be so apparent and clear that the transaction is not fairly susceptible to any other interpretation; and if the intention is doubtful, under all the circumstances, that doubt will prevent it from being deemed an execution of the power. Where a will cannot operate except as an execution of the power, it will be presumed to be so intended, although the power is not referred to, but where there is no reference in the will to the power, or to the property which is the subject of the power, and the words of the will may be satisfied without supposing an intention to execute the power, then, unless the intention to execute the power is clearly expressed, there is no execution of it.

“Being guided by these principles, which are supported by all of the leading authorities; did Mrs. Brannon intend, by her will, to execute the power of appointment conferred upon her in the will of H. L. Brannon ?

“Upon an inspection of the will of Mrs. Brannon, it at once becomes apparent that there is not the slightest reference to the power which was created by the will of PI. L. Brannon; nor is there any reference to the property which is the subject of the power. In order, therefore, to operate as an execution of the power, it must appear that Mrs. Brannon intended by this devise and bequest, notwithstanding these omissions, to convey not only her own property, but that which was her' husband’s as well, and the intention must be so dear and apparent that the transaction ‘is not fairly susceptible of any'other interpretation.’ This is the crux of the case.

“The defendant contends that as the testatrix had no real property of her own, either at the time she made her will, or at the time of her death, the words ‘devise,’ as used in her will in reference to a gift to be.made and ‘real,’ as used in her will to designate the estate or property upon which the gift is to operate, are significant as indicating a settled intention on her part to execute the power conferred upon her by the will of'her husband; and that unless such construction is placed upon said words, the last will and testament of Mrs. Brannon will be inoperative and nugatory. The defendant reasons further, that the intention to exercise the power being thus shown, all of the property-subject to the power, both real and personal, will pass to the appointee. This is but another way of saying that a general devise of land by one having no land at the time, other than that subject to a power, should be considered as an exercise of such power.

“This court does not agree with counsel for the defendant that a general devise