## Facts

- Lillian A. Davol died intestate in Florida.
- Davol left no surviving spouse, descendants, or surviving siblings.
- Davol had three siblings—John, Harriet, and William—each of whom predeceased her.
- Harriet left three children; William left two children; John left six children (the appellants), one of whom died after Davol.
- The only intestate heirs were Davol’s nieces and nephews (the children of her three deceased siblings).
- The County Judge’s Court (probate court) ruled that Davol’s estate must be distributed per stirpes by representation, treating each sibling as the stock: each sibling line would receive the share that sibling would have taken if living, and the children in that line would divide that share.
- John’s children challenged that distribution, arguing the nieces and nephews should take per capita in equal individual shares because all were in the same degree of kinship to Davol.
- The Circuit Court for Dade County affirmed the probate court’s order.
- John’s children then appealed to the District Court of Appeal of Florida, Third District.

## Issues

1. Under Fla. Stat. §§ 731.23 and 731.25 (1958), when an intestate decedent’s only heirs are nieces and nephews through deceased siblings, is the estate distributed per stirpes by sibling lines (by representation) or per capita among the nieces and nephews?

## Decision

- The Third District Court of Appeal affirmed the circuit court’s affirmance of the probate order.
- The court held that the governing statutes required distribution per stirpes by representation through the decedent’s siblings’ lines, not per capita among all nieces and nephews as individuals.

## Legal Principles

- Under Florida’s intestacy statutes then in effect, §§ 731.23 (descent) and 731.25 (representation) are read together to determine both the heirs and the method of distribution when inheritance occurs through a deceased relative’s descendants.
- When the statute calls for inheritance by “brothers and sisters and the descendants of deceased brothers and sisters,” the siblings operate as the stocks for representation; each sibling line takes the share the sibling would have taken if the sibling had survived.
- Per stirpes distribution can apply even when all living takers are in the same degree of kinship (here, all nieces and nephews); the method turns on the statute’s direction to distribute by representation, not on equal-degree kinship alone.
- A per capita distribution among nieces and nephews is not required merely because each niece and nephew stands in the same generational relationship to the decedent, where the statutory plan provides for representation through a prior generation.

## Conclusion

The court affirmed an order distributing Lillian Davol’s intestate estate per stirpes by representation: the estate was first divided into equal shares by sibling line (John, Harriet, and William), and then divided among the children within each sibling’s line, rejecting the argument that equal-degree nieces and nephews must take per capita.


In re Estate of Davol, 100 So. 2d 188 (1958)