## Facts

- A testatrix’s will devised eight items of 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.”
- The five named beneficiaries were the testatrix’s stepchildren (children of her deceased husband), not her blood relatives.
- Three of the five named stepchildren died before the testatrix.
- Two named stepchildren survived and claimed the entire devise on the theory that the will created a class gift to “the children of my late husband.”
- The testatrix’s lineal blood relatives argued the will made separate gifts to each named stepchild; the gifts to the three who predeceased lapsed and passed by intestacy.
- The probate court construed the clause as creating individual gifts, found the three shares lapsed, and awarded the lapsed shares to the testatrix’s blood relatives via intestacy.
- The two surviving stepchildren appealed.

## Issues

1. Whether a devise “to [five named persons], who are the children of my late husband” creates a class gift or separate individual gifts.
2. If the devise is individual gifts, whether the shares of named beneficiaries who predeceased the testatrix lapse and pass by intestacy absent an applicable anti-lapse statute or saving clause.

## Decision

- The appellate court affirmed.
- The devise was construed as separate, individual gifts to each of the five named stepchildren, not a class gift.
- Because three named beneficiaries predeceased the testatrix and no applicable anti-lapse protection or survivorship provision applied, their shares lapsed.
- The lapsed shares passed by intestacy to the testatrix’s lineal blood relatives, not to the surviving stepchildren.

## Legal Principles

- When a will identifies beneficiaries by specific names, a presumption favors construction as individual gifts rather than a class gift, even if the will adds a collective descriptor (e.g., “who are the children of X”) that functions as identification.
- A class gift is more commonly found where beneficiaries are described only by group label (e.g., “to the children of X”) rather than individually named.
- If a named devisee predeceases the testator, the devise lapses unless a statute or the will provides otherwise; lapsed property passes under the residuary clause, or if none applies, by intestacy.

## Conclusion

The court treated the will’s devise to five specifically named stepchildren, followed by a descriptive clause identifying them as the testatrix’s late husband’s children, as individual gifts; accordingly, the shares of the three named beneficiaries who predeceased the testatrix lapsed and passed by intestacy to the testatrix’s blood relatives rather than to the two surviving named beneficiaries.


Davis v. Arkenberg, 195 So. 2d 46 (Fla. Dist. Ct. App. 2d Dist. 1967)