Brown v. Avery ex rel. Avery

Citations

• 63 Fla. 355

Syllabus

<p>1. Section 2272 of the General Statutes of 1906 provides that every last will and testament disposing of real estate shall be attested and subscribed in the presence of the testator by two or more witnesses, and Section 2273 provides that “no such devise or disposition of lands, tenements or hereditaments, or any part or cause thereof, shall be revocable by any other will or codicil, unless the same be in writing and made as aforesaid;” Held, that the provision in such Section 2273 has no appicability • to personal property; even though such personal property be embraced in a will divising real estate.</p> <p>2. Section 2274 of the General Statutes of 1906, providing that “all wills of personal property shall be in writing and signed by the testator or some other person in his presence, and by his express direction,” is practically declaratory of the rule ajready existing at common law. No subscribing witnesses thereto are requisite. .</p> <p>3. A will executed in this State, purporting to devise both real apd personal estate within this jurisdiction, but with no subscribing witnesses thereto, is valid as to the personalty, if valid in other respects, though inoperative as to the real estate.</p> <p>4. A demurrer admits the truth of all such matters of fact as 'are sufficiently pleaded, but allegations of mere conclusions of law are not admitted by a demurrer, for the law is to be ascertained by the court.</p> <p>5. A demurrer does not admit as true allegations which the law would not allow to be proved.</p> <p>6. As a general rule, parol evidence is inadmissible for the purpose of showing that an instrument purporting to be a will, fair and regular on its face, properly executed as such, was not intended to operate as a will.</p>