Cody v. Cody

Cody v.  Cody, 2013 WL 6171299

In this case, the Appellate Court was forced to overrule a strange and confusing trial court decision regarding the distribution of property from an estate.  In 2007, a husband and wife executed wills.  The wife died shortly thereafter.  The husband's will specifically named his wife's three sons (his step-sons) as his children, and named one of those sons as his PR. 

The will also made a devise of real property as follows:

"(b) I devise the house and 12.5 acres located at 2800 Myree Lane, Pace, FL 32571, to my husband, Earlier T. Martin, Jr.  Should Earler T. Martin predecease me, then I devise the house and acreage in my son, Buford Cody, to divide between my heirs, as he sees fit and proper."

The Court noted that it was clear that this devise included a typographical error copied over from the wife's will, and should have said the house and property were distributable to the wife if she survived him.  The will left the balance of his estate to the three sons equally.  

Buford, the son named as personal representative, filed a Petition for Administration. Shortly thereafter, his brothers objected on the basis that Buford was distributing assets before being appointed PR and before filing an accounting of the assets.  They also filed a petition to construe the will and determine beneficiaries, since they believed their mother's estate had not yet been wound up, and that the real property at issue had never passed to the husband and rather should have been distributed pursuant to their mother's will.

The probate court, after a hearing on the petition to construe the will (of which there apparently was no transcript) determined that the wife's intent was for the property to pass partly to a grandchild, with the balance divided among the three sons, and later entered an order determining the boundaries of the real property, making the probate court's order a final appealable order.

The Court reversed the probate court's decision for several reasons.  First, the Court held the order was premature, since Buford had not yet been appointed as personal representative, nor had the husband's will been admitted to probate as required by F.S. 733.213 before a will can be construed.  Second, the Court held it was inappropriate for the probate court to consider the wife's intent when construing the husband's will.  The granddaughter was not even mentioned in the husband's will, so it was unclear why the probate court would have included her as a devisee.  Finally, the probate court failed to make a finding that F.S. 732.105 should even apply- there was no explanation as to why the probate court thought the will was unclear or there was doubt about the distribution of the assets.

Ultimately, the Court held that the real property was to be distributed pursuant to the testator's will and in accordance with the testator's intent.  The will did not say that the property was to be divided among the three sons.  Rather, it left the property to Buford, and directed Buford, as personal representative, to divide it as he saw "fit," which could mean no division at all.  There was no legal basis for the probate court to override the testator's clear direction and devise the property to whomever the court saw fit. 

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