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Docket Number

No. 52326.

Attorney(S)

Isham W. Adams, Daytona Beach, for petitioner. Charles E. Booth of Booth Booth, Daytona Beach, for respondent.

Judges

Frederick B Karl

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Smart Summary

Case Summary: In re Estate of Ruth L. Johnson, Deceased (Supreme Court of Florida, March 16, 1978)

Docket No.: 52326. Opinion by Justice Karl. Rehearing denied June 30, 1978. Record: appeal from Circuit Court, Volusia County (J. Robert Durden). Counsel listed in opinion: Isham W. Adams for petitioner; Charles E. Booth for respondent.

Factual and Procedural Background

Ruth L. Johnson executed a will in 1968 that included a $10,000 bequest to respondent Vera Mae Morris, conditioned on Morris being in Mrs. Johnson's employ at the time of the testatrix's death. On January 17, 1973, Mrs. Johnson executed a new will that revoked the 1968 will. The 1973 will was executed at Mrs. Johnson's home; the respondent was summoned from her household duties and served as one of two attesting witnesses. The respondent did not understand the legal effect of her attestation, and the attorney preparing the will did not recognize that the respondent was a beneficiary.

Mrs. Johnson died testate on February 8, 1973; her estate exceeded $2,500,000. The 1973 will was admitted to probate, but the probate court held that the bequest to the respondent was null and void under Section 731.07(5), Florida Statutes (1973), the statute in effect at the time the 1973 will was executed.

The respondent appealed to the District Court of Appeal, First District, which reversed the probate court. The First District held that the bequest fell within the savings clause of Section 731.07(5) because, if the 1973 will "were not established," the respondent would receive the identical bequest under the prior (1968) will. The Supreme Court of Florida granted certiorari to review the District Court decision because it conflicted with In re Lubbe's Estate (Fla. 2d DCA 1962).

Legal Issues Presented

Whether the savings clause of Section 731.07(5), Florida Statutes (1973) — which preserves for a subscribing witness a proportion of a devise or bequest not exceeding the share the witness would receive "if the will were not established" — applies to a legacy that the witness would have received under a prior valid will in the event the subsequent will could not be established, or whether the savings clause is limited to the witness's share by intestacy as construed in In re Lubbe's Estate.
Whether the First District Court of Appeal's interpretation of the savings clause conflicts with In re Lubbe's Estate, and if so, whether the Supreme Court should approve the First District's decision or adhere to Lubbe.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
In re: Estate of Johnson, 347 So.2d 785 (Fla. 1st DCA 1977)	The District Court of Appeal interpreted the savings clause of §731.07(5) to permit a subscribing witness to receive a bequest to the extent the witness would have received the same bequest under a prior valid will if the later will were not established.	The Supreme Court approved the First District's holding and rationale, stating the savings clause can relate to provisions in a prior will when a subsequent will cannot be established.
In re Lubbe's Estate, 142 So.2d 130 (Fla. 2d DCA 1962)	Interpreted the saving clause to salvage bequests to interested witnesses only "to the extent that such witnesses could take by intestacy," construing terms such as "distributed to him" and "distributee" narrowly to intestacy contexts.	The Supreme Court overruled In re Lubbe's Estate to the extent that Lubbe's limited construction of the savings clause is inconsistent with the holding that the clause may apply to gifts under a prior will when the subsequent will is not established.

Court's Reasoning and Analysis

The Court described the factual posture: a subsequent (1973) will named the respondent as an attesting witness and as a beneficiary; the earlier (1968) will contained the identical bequest to the respondent, conditioned on employment at death. The probate court invalidated the bequest under §731.07(5) (1973). The First District reversed, relying on two central considerations: (1) the testator's intent was plainly to provide for the respondent; and (2) strict application of §731.07(5) would defeat that intent.

The First District reasoned that the savings clause should be read to preserve bequests the subscribing witness would have received "if the will were not established," which includes bequests the witness would have taken under a prior valid will. The District Court rejected the Second District's narrower interpretation in In re Lubbe's Estate — namely, that the savings clause salvages bequests only to the extent the witness could take by intestacy — because the legislature subsequently defined "distributee" in §731.201(10) (Florida Statutes (1975)) as "a person who has received estate property from a personal representative other than as a creditor or purchaser," a definition broad enough, in the First District's view, to encompass a legatee under a prior valid will.

The Supreme Court expressly agreed with the First District. It held that the legislative intent behind the savings provision was to reach not only intestacy but also provisions in a prior will when the subsequent will cannot be established. On that basis, the Court approved the First District's decision and concluded that the Lubbe decision's restrictive construction of the savings clause was inapplicable in this case.

Holding and Implications

Holding: The Supreme Court approved the decision of the District Court of Appeal, First District, and discharged the writ. The Court overruled In re Lubbe's Estate to the extent that Lubbe is inconsistent with the holding that the savings clause of §731.07(5) may apply to preserve bequests a subscribing witness would have received under a prior valid will if the subsequent will could not be established.

Implications:

Direct effect on the parties: The bequest to respondent Vera Mae Morris is upheld under the savings clause because, if the 1973 will were not established, she would receive the identical bequest under the 1968 will.
Precedential effect: The Court expressly overruled In re Lubbe's Estate to the extent inconsistent with this broader construction of the savings clause, thereby clarifying that the savings provision may operate to preserve a witness-beneficiary's entitlement under a prior valid will, not solely under intestacy.
The opinion does not elaborate further on broader policy consequences beyond these rulings.

Concurrences and dissents: OVERTON, C.J., and ADKINS and SUNDBERG, JJ., concurred. ENGLAND, J., dissented.

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IN RE ESTATE OF RUTH L. JOHNSON, DECEASED. FLAGSHIP FIRST NATIONAL BANK OF ORMOND BEACH, ETC., PETITIONER, v. VERA MAE MORRIS, RESPONDENT.

KARL, Justice.

This cause is before us on petition for writ of certiorari to review the decision of the District Court of Appeal, First District, in In re: Estate of Johnson, 347 So.2d 785 (Fla. 1st DCA 1977), which conflicts with In re Lubbe's Estate, 142 So.2d 130 (Fla. 2d DCA 1962). We have jurisdiction pursuant to Article V, Section 3(b)(3), Florida Constitution.

Ruth L. Johnson executed a will in 1968 which contained a bequest to the respondent (an uneducated black household servant of Mrs. Johnson, who had been in her employ for 28 years). The bequest gave to the respondent $10,000 conditioned on the respondent being in Mrs. Johnson's employ at the time of Mrs. Johnson's death. On January 17, 1973, Mrs. Johnson executed a new will revoking her 1968 will. However, the new will was executed at the home of Mrs. Johnson. The respondent, summoned from her household duties, was one of the two attesting witnesses. Respondent was not aware of the effect of her action nor was the attorney cognizant that she was a beneficiary under the will he had prepared.

Mrs. Johnson died testate on February 8, 1973, her estate being in excess of $2,500,000. Mrs. Johnson's "new" will was admitted to probate, but the probate court held that the bequest to the respondent was null and void by operation of Section 731.07(5), Florida Statutes (1973), which was in effect on the date the will was executed.

The respondent appealed to the District Court of Appeal, First District. On appeal, the District Court reversed. Although recognizing that the disqualifying statute, which had been eliminated in the new Florida Probate Code, effective January 1, 1976, applied in the instant case, the District Court nevertheless held for the respondent, finding:

1. the intention of the testator is most important, and here it was the plain intention of the testatrix to provide for the respondent; and

2. the strict application of Section 731.07(5), Florida Statutes (1973), would defeat its purpose — promulgation of the testatrix's intention.

In reversing, the District Court concluded that the bequest to the respondent fell within the savings clause of Section 731.07(5), Florida Statutes (1973), and explicated:

"Clearly if the 1973 will `were not established', Vera Mae Morris would receive the identical bequest provided in the 1968 will. She gained nothing by the 1973 will that she was not entitled to under the earlier will. In so holding, we are not unmindful of the wording in In Re Lubbe Estate, [sic] 142 So.2d 130 at page 133 (Fla. 2d DCA 1962), which construes the language of the saving clause to salvage bequests to interested witnesses `only to the extent that such witnesses could take by intestacy'. We respectfully disagree with the reasoning of the 2nd District Court in relating the words `distributed to him' to the word `distributee' and restricting the meaning of `distributee' to a person entitled to the personal estate of one who has died intestate. `Distribution' is made under the terms of a will as well as under the law of descent and distribution. Since the Lubbe decision the legislature has defined `distributee' as `a person who has received estate property from a personal representative other than as a creditor or purchaser'. Section 731.201(10) Florida Statutes (1975). Such definition is broad enough to include a legatee under a previous valid will. We hold that such limited construction enunciated in the Lubbe decision is not applicable to the instant appeal for the reason just stated and due to the overwhelming equities in favor of the legatee as previously set forth and because of the clearly expressed intent of the testatrix that appellant be compensated for her 28 years of faithful service."

Section 731.07(5), Florida Statutes (1973), reads:

"All devises and bequests to subscribing witnesses are void unless there are at least two other disinterested subscribing witnesses to the will. If a subscribing witness would be entitled to any share of the estate of the testator in case the will were not established, he shall take such proportion of the devise or bequest made to him in the will as does not exceed the share of the estate which would be distributed to him if the will were not established." (Emphasis supplied.)

We agree with the holding and rationale of the instant decision of the District Court of Appeal, First District. The intent of the Legislature in promulgating the savings provision was to relate not only to intestacy but also to provisions in a prior will if the subsequent will could not be established.

Accordingly, we approve the decision of the District Court of Appeal, sub judice, overrule In re Lubbe's Estate, supra, to the extent that it is inconsistent herewith, and discharge the writ.

It is so ordered.

OVERTON, C.J., and ADKINS and SUNDBERG, JJ., concur.

ENGLAND, J., dissents.

IN RE ESTATE OF JOHNSON