Rowland v. Miller
Rowland v. Miller
Opinion of the Court
This is an appeal from an order sustaining a demurrer to a bill in equity exhibited by appellant against the appellees in the Circuit Court for Pinellas County to declare a trust to exist in favor of the complainant in certain real property and the proceeds of the sale of it.
The case involves the construction of a certain clause in the will of Eugene B. Rowland, deceased. According
Eugene B. Rowland died in Pinellas County on July 23, 1913, testate. He was seized and possessed of a certain lot and store building in the city of St. Petersburg; that James Norton and Horace Williams were named as executors of his will, which was duly probated; that these men accepted the appointment, qualified as executors, paid off the debts of the testator and the specific legacies bequeathed, and then resigned, and Albert F. Miller was appointed by the County Judge as Administrator Gum Testamento Arnnexo of the estate, and has in his possession all property of the estate not administered. That Eugene B. Rowland, Jr., was a nephew of Eugene B. Rowland, and at the time of the latter’s death was living in the State of Michigan. That Eugene B. Rowland, Jr., died on October 5, 1918, and had not then reached the age of twenty-five years. That the complainant, Grace Rowland, is a niece of Eugene B. Rowland, deceased, and that Merriman Rowland was a brother. That on March 28th, 1917, Eugene B. Rowland, the nephew, undertook by warranty deed to convey to: Cassius Alexander ian undivided one-fourth interest in the certain real property hereinafter described and referred to heretofore. The deed was duly recorded in Pinellas County. Eugene B. Rowland, Jr., died intestate without issue, leaving as his sole heirs his father, Henry J. Rowland, and mother, Melva A. Rowland; the former was appoint
“9th. I give and bequeath and devise to my nephew, Eugene B. Rowland, of Grand Lodge, Michigan, lot 7 and east 7 feet of lot 8, block (33) of the block (33), revised map of St. Petersburg, Fla., known as 148-150 and 152 Central Avenue. I desire this property to be held by my executors in trust until the said Eugene B. Rowland shall reach the age of twenty-five years, which will be year 1921 if he be living at my death; if he be not living I desire the property to be sold and the proceeds given to my niece, Grace Rowland, of Omaha, Neb. The rents of the store to pay the taxes and insurance, and if any is left from the rents I desire it to be given to my brother, Merriman Rowland, of Rochester, N. Y., if he be living; if not living, to be given to my niece, Grace Rowland, of Omaha, Neb.”
One of the canons of construction in the law of wills is that in such a case the latter clause prevails — as being the last expression of the testator’s wish. See Leices
In the first part of the second sentence of the paragraph, the testator expresses an intention in irreconcilable contradiction of an intention to devise the property in fee simple to his nephew, where he uses the following language: “I desire this property to be held by my executors in trust until the said Eugene B. Rowland shall reach the age of twenty-five years,” etc. Here it seems to have been the testator’s purpose that the legal estate should be in his executors. There was something to be done by them which made it necessary for them to have the legal estate. They were to collect rents, pay taxes and insurance and pay over the residue to his brother, or in case of his death to the niece. Not even the beneficial estate became vested in the nephew. It seems to us that this construction gives effect to every provision of the will and carries out the testator’s intention as expressed without rejecting any words as repugnant or meaningless, but effects a reconciliation of the various provisions of the paragraph and disturbs no further than is necessary the gift as expressed in the first sentence of the paragraph.
It follows from the views- here expressed that the order sustaining the demurrer to- the bill and dismissing the bill should be reversed. It is so ordered.
Browne, C. J., and Taylor, Whitfield and West, J. J., concur.
Reference
- Full Case Name
- Grace M. Rowland v. Albert F. Miller, Administrator De Bonis Non Cum Testamento Annexo of the Estate of Eugene B. Rowland, Deceased Henry J. Rowland and Melva A. Rowland, His Wife, Heirs of E. B. Rowland, Jr., and H. J. Rowland as Administrator of the Estate of E. B. Rowland, Jr., Elizabeth E. Alexander as of the Will of Cass'us Alexander, and E. E. Alexander and Rutgers Alexander as Devisees Under the Will of Cassius Alexander
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- Syllabus
- 1. The rule of construction of wills is that if there is an irreconcilable conflict between two clauses of a will the latter clause will prevail as being the last expression of the testator’s intention where the clauses refer to the same subject-matter, but this rule also requires that the two clauses be so construed as to harmonize them if possible and give effect to each, rejecting the first only so far as is necessary to give effect to the latter. 2. Where a testator devised to his nephew a certain lot and then expressed the desire that the property be held in trust by his executors until his nephew should arrive at the age of twenty-five years “if he be living at my (testator’s) death” and “if he be not living” that the property should be sold and the proceeds given to his niece, and then expressed the further desire that the taxes and insurance be paid out of the rents from the store and the residue paid over to the testator’s brother, or in the event of his death to his niece. Held, that the nephew took no interest in the property until he arrived at the age of twenty-five years, and if he was not living at the time when he would have arrived at that age had he lived, the proceeds of the sale of the property should go to the niece.