## Facts

- Mary M. Colding died leaving a will that included the following devise: “To my sister, Margaret Speck … One Hundred Shares of A. T. & T. Stock, which at her death shall be divided between Nancy and Susan Walker, my nieces ….”
- Evelyn Bussey, as executrix of Colding’s estate, petitioned for construction of the clause and argued it created a life estate in Speck and a remainder in the two nieces.
- Margaret Speck contended the devise of the stock to her was in fee simple and that the later language directing division at her death was an invalid attempt to “devise over” after an absolute gift.
- The County Judge’s Court in Dade County construed the will as creating a life estate in Speck and a vested remainder in Nancy and Susan Walker.
- The probate order further provided that Speck, during her lifetime, was entitled to all dividends and incidental rights of ownership (such as voting the stock), but had no power or right to sell or otherwise dispose of the stock.
- Speck appealed from that order to the District Court of Appeal of Florida, Third District.

## Issues

1. Does a will provision giving 100 shares of stock to the testatrix’s sister, followed by language that “at her death” the stock “shall be divided” between named nieces, create a life estate in the sister with a remainder to the nieces, rather than a fee-simple gift to the sister that voids the gift over?

## Decision

- The Third District affirmed the county judge’s order.
- The court held the clause created a life estate in Margaret Speck in the 100 shares of AT&T stock, with a remainder interest in Nancy and Susan Walker.
- The court rejected Speck’s reliance on the general statement (cited from 96 C.J.S. Wills § 825) that a devise over after a fee-simple devise is void, explaining that this rule “though it may find acceptance elsewhere, is not applicable in Florida.”
- The court relied on Florida Supreme Court authority, including *Roberts v. Mosely*, recognizing that language appearing to make an absolute devise may be limited by a later valid provision directing the property to pass to others on a stated contingency.

## Legal Principles

- A will is construed from the instrument as a whole, with effect given to provisions that show the testator meant the first taker to have the property only for life and intended the property to pass to others at the first taker’s death.
- In Florida, an apparently absolute devise may be reduced in scope by a subsequent valid limitation that provides for the property to go to others upon a specified event (such as the first taker’s death).
- Florida does not apply a rigid rule that any later devise over is void merely because the earlier clause can be read as a fee-simple grant; later language can define the estate given to the first beneficiary.
- When a will gives property to one person and then directs distribution of that same property to named persons “at [the first person’s] death,” the provision may be construed as creating a life estate in the first person with a remainder in the later-named beneficiaries.
- A probate court may specify the incidents of the life estate in personal property (e.g., entitlement to dividends and voting rights) while restricting disposition of the principal to protect the remainder beneficiaries.

## Conclusion

The court affirmed the probate construction of Mary Colding’s will, holding that the devise of 100 shares of AT&T stock to her sister, followed by a direction that the stock be divided between two named nieces at the sister’s death, granted the sister a life estate with rights to dividends and other incidents of ownership during life but no power to sell, and left a remainder interest for the nieces to take upon the sister’s death.


Speck v. Bussey (In re Estate of Colding), 147 So. 2d 338 (1962)