
    Joseph L. ELMORE, Appellant, v. Everett ELMORE and Carolyn Elmore Upson, Individually, and as Executors of the Last Will and Testament of Lydia Sasser Elmore, deceased, and Murle Sasser Turner, Appellees.
    Supreme Court of Florida.
    Dec. 18, 1957.
    J. M. & H. P. Sapp, Panama City, for appellant.
    W. Fred Turner, Panama City, for ap-pellees.
   HOBSON, Justice.

M. E. Elmore, during his lifetime, acquired 10 acres of land. Upon one half acre of this land he established and maintained his homestead until he died intestate in 1939, leaving his wife, Lydia Sasser Elmore, and his son, Joseph L. Elmore (plaintiff-appellant herein) as his sole surviving heirs at law.

Lydia Sasser Elmore died testate September 28, 1954, survived by her son, Joseph L. Elmore, who brought this suit for declaratory decree, seeking a construction of the will. The homestead of one half acre was set apart by stipulation of the parties, and it is undisputed that it descended to appellant, Joseph L. Elmore.

Item 2 of the will of Lydia Sasser Elmore, which is the key to the situation giving rise to this litigation, reads as follows :

“It is further my will that I give and bequeath to my son Joseph L. Elmore nine (9) acres of land described as being in the Southeast Quarter of the Southwest Quarter of the Southwest Quarter of Section 33, Township 3 South, Range 14 West, to have and to hold for his entire lifetime with no right to sell or convey, and that at his. death, the said above described nine acres of real estate become the property of Everett Elmore and Carolyn Elmore Upson; the said Everett El-more and Carolyn Elmore Upson being my own grandchildren and my heirs at law-; and that one (1) acre of real estate situated, lying and being in the ■above described Section 33, Township 3 South, Range 14 West is hereby given by me to Murle Sasser Turner, same one acre to face East Fifteenth Street, being located on the North side of said Fifteenth Street in Panama City, Bay County, Florida.”

In his final decree the chancellor set the homestead apart, in accordance with the stipulation of the parties, and decreed that the remainder of the tract descended upon the death of M. E. Elmore to Lydia Sasser Elmore and Joseph L. Elmore as' tenants in common; that under the will of Mrs. Elmore, appellant, Joseph L. Elmore, received a life estate in nine tenths of an undivided one half interest in the 10 acres, less-the homestead, with remainder to the testatrix’ named grandchildren, and that Mrs. Turner received a one tenth undivided interest to face on Fifteenth Street.

The real difficulty with this case is that the testatrix attempted to locate one acre of land and to devise it to Mrs. Turner, apparently thinking that she owned 10 acres in fee, whereas in fact she owned only an undivided one half interest in 9J4 acres. The cotenant of the testatrix was her son, Joseph L. Elmore. The land was not partitioned during the testatrix’ lifetime.' It is fundamental that one cotenant cannot bind another, absent that other’s consent, by alienating any specific portion of the estate, since each cotenant owns an interest in the whole, which is indivisible except by partition or agreement. Prairie Oil & Gas Co. v. Allen, 8 Cir., 2 F.2d 566, 40 A.L.R. 1389; Marshall v. Trumbull, 28 Conn. 183; Mitchell v. Hazen, 4 Conn. 495; Hutchison v. Chase, 39 Me. 508; Duncan v. Sylvester, 24 Me. 482; Phillips v. Tudor, 10 Gray, Mass., 78; Varnum v. Abbott, 12 Mass. 474; Bartlet v. Harlow, 12 Mass. 348; Porter v. Hill, 9 Mass. 34; Pellow v. Arctic Iron Co., 164 Mich. 87, 128 N.W. 918, 47 L.R.A.,N.S., 573; Mee v. Benedict, 98 Mich. 260, 57 N.W. 175, 22 L.R.A. 641; Benedict v. Torrent, 83 Mich. 181, 47 N.W. 129, 11 L.R.A. 278; Young v. Young, 307 Mo. 218, 270 S.W. 653, 39 A.L.R. 734; Paul v. Cragnaz, 25 Nev. 293, 59 P. 857, 60 P. 983; Ballou v. Hale, 47 N.H. 347; Whitton v. Whitton, 38 N.H. 127; Mussey v. Holt, 24 N.H. 248; Hyde v. Stone, 9 Cow., N.Y., 230; Southern Invest. Co. v. Postal Telegraph-Cable Co., 156 N.C. 259, 72 S.E. 361; Dennison v. Foster, 9 Ohio 126; Jewett’s Lessee v. Stockton, 3 Yerg., Tenn., 492; Lee v. Follensby, 83 Vt. 35, 74 A. 327; Smith v. Benson, 9 Vt. 138. There appears to- be no Florida law specifically covering this subject, but it presents a theoretical difficulty which is, in our opinion, impossible- to surmount. An attempt to alienate a specific, located portion of the interest of a tenant in common is voidable at the election of the grantor’s cotenants. 86 C.J.S. Tenancy in Common § 122 b, p. 535. Obviously, the plaintiff in this case has elected to avoid the devise of one acre to Mrs. Turner.

Appellees rely upon the following cases, averring that a reading of them “will show that what testatrix did is not impossible of accomplishment.” (Appellees’ br. p. 13) : Albury v. Albury, 63 Fla. 329, 58 So. 190; Perkins v. O’Donald, 77 Fla. 710, 82 So. 401; Massachusetts Audubon Soc. v. Ormond Village, etc., 152 Fla. 1, 10 So.2d 494; Leffler v. Leffler, 151 Fla. 455, 10 So.2d 799; Wright v. Sallett, Fla., 66 So.2d 237; Burton v. Keaton, Fla., 60 So.2d 770. These cases, however, do not appear to sanction a devise of the type made in this case but pertain rather to vagueness in the language of the devise. They do not point the way around the difficulty in ownership alluded to above. The chancellor was of the opinion that the will of the testatrix showed an intent on her part to devise an “undivided one-tenth in what she did own to Murle Sasser Turner, provided that the share of Murle Sasser Turner shall face E. Fifteenth Street.” Of course, an undivided interest cannot be so located. If we eliminated the portion of the final decree which purports to locate Mrs. Turner’s share, Mrs. Turner would receive an undivided one-tenth of the testatrix’ undivided one half interest in the property. This result, however, would be subject to the criticism that it rewrites the will, which states specifically that the share of Mrs. Turner shall be one acre. It therefore does not appear that there is any way to save the devise to Mrs. Turner so long as it is contested by the plaintiff-appellant. At the minimum, the judgment must be reversed with directions to avoid and set aside the devise to the appellee Murle Sasser Turner, which must then descend by intestacy.

This brings us to a consideration of the balance of the tract and the attempt to devise it to appellant for life with remainder over to the grandchildren. Here again the problem confronting us results from the misconception of the testatrix as to the character and extent of her estate. The difficulty with the devise is that it is too specific, under the circumstances here disclosed. Appellant, Joseph L. Elmore, as we have seen, had an undivided one half interest in the property affected. There is no attempt here to partition the tract by will, as there was in connection with the devise to Murle Sasser Turner, but there are other difficulties springing from this attempt of the testatrix to dispose of the main portion of her property. If the devise to Joseph L. Elmore is effective, this devisee will be placed in the incongruous position of owning an undivided one half interest in certain land in fee, plus an undivided one half interest in the identical land for life, with remainder over to the children named in the will. Absent a partition of this land, alienation of any part of this land will be restrained for the life of Joseph L. Elmore, since he will be unable to determine what part he will be free to sell. It thus becomes as important to locate the land actually -covered .by the ■devise made by the testatrix to Joseph L. Elmore as it was to locate the acre sought to be devised to Murle Sasser Turner. The appellant, Joseph L. Elmore, does not seek to partition the land, but rather to avoid the devise. Since the remaindermen would have only an expectancy, it does not appear that a partition suit could be entertained by them, or in their behalf, against the appellant, who is their father, after the administration of the estate is complete. Moreover, it does not even appear that the executor will be able to select the land covered by the attempted life interest for the purpose of closing out the estate, and this will be the most significant immediate problem in the case if the devise is upheld.

Because of the anomalous situation described in the above analysis, under the circumstances of this case we are unable to uphold the attempted devise to Joseph L-Elmore, absent a complete rewriting of the language of the will to bring it into harmony with the property situation now disclosed. Accordingly, the attempted devise to Joseph L. Elmore must fail, and the affected property must descend by inte's-tacy, there being no residuary clause 'in the will.

The final decree appealed from must be, and it is hereby, reversed and the cause remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded.

THOMAS, DREW, THORNAD and O’CONNELL, JJ., concur.

TERRELL, C. J., and ROBERTS, J., dissent.

TERRELL, Chief Justice

(dissenting).

The sole point in this case is whether or not the intent of the testatrix as expressed in her will can be executed. The pertinent paragraph as well as the facts on which the answer to this question turns are detailed in the majority opinion and will not be repeated here.

In view of all this court has said in defining the elements that constitute a valid will it does seem academic to repeat them at this time — so long as one does not transgress any principle of law or public policy he can dispose of his property by will as he pleases and the law enjoins us to uphold the testator’s bequest. It does more than that, it requires the courts to find a way to uphold it if within the realm of legal possibility. Cartinhour v. Houser, Fla., 66 So.2d 686. The entire will should be considered and construed liberally to give it this effect. In re Williams’ Estate, Fla., 59 So.2d 13. To ascertain and effectuate the intent of the testator is the polestar to guide us in construing a will. Intestacy is not favored but a construction leading to a valid will is favored. In re Gregory’s Estate, Fla., 70 So.2d 903. Every legal presumption should be indulged in favor of the validity of a will. When a valid intent is shown it must prevail over all other considerations and other rules of construction must give way to this cardinal rule. Mosgrove v. Mach, 133 Fla. 459, 182 So. 786.

Applying these long established principles to the case at bar, it seems crystal clear to me that the will of Mrs. Elmore, though not perfect in draftsmanship, evidences a clear intent to make a complete and perfectly natural disposition of all real property owned by her at the time of her death, whatever the quantity of her estate might be. At her death she owned sufficient land to implement this intent, even though it consisted of an undivided interest. The books are full of cases approving the devise of undivided interests.

There is not the slightest showing that the will in question was made for an illegal purpose or that it contravenes any principle of public policy. A more natural will was never made. Construed logically or in a sensible manner, the testatrix devised one acre facing on Fifteenth Street to Murle Stasser Turner, then she devised a life estate in all the balance of her property to her only son, the appellant, with remainder over to her two grandchildren, Everett Elmore and Carolyn Elmore Up-son. There is no question whatever about the legality of such a will or the ability to locate the lands devised when so construed. In decreeing intestacy the majority of this court, in my judgment, went off after a will-o’-the-wisp of their own contrivance, in disregard of the fundamental rules of interpretation detailed in the forepart of this opinion.

The land involved in the will was originally a ten acre tract located within an incorporated city. The majority opinion is grounded on the theory that the devise of one acre to Mrs. Turner cannot stand because the testatrix thought she owned ten acres in fee when in fact she owned only an undivided one-half interest in nine and one-half acres [ten acres less homestead] ; that she was a cotenant with her son Joseph, the appellant, as to all the tract; that she could not, as a cotenant, devise an acre facing on Fifteenth Street to Mrs. Turner without son Joseph’s consent, and since he elected to avoid the devise to Mrs. Turner, it must fall. The majority opinion admits that there is no Florida law on the subject but says the case “presents a theoretical difficulty * * * impossible to surmount.” This admission is supported by copious citation of authority on the law dealing with attempts by a cotenant in esse to convey specific parcels of an undivided interest without the consent of his fellow cotenant. This general rule is well recognized but like many other rules of law the exceptions to it are more numerous and more often applies than the rule. To illustrate, the majority opinion cites 86 C.J.S. Tenancy in Common, § 122 (b), p. 535, as authority for the proposition that an attempt to alienate a specific, located portion of the interest of a tenant in common is voidable at the election of the grantor’s cotenants. The said citation also includes the exception, “while in no event will a conveyance of a specific part of the common property by one tenant he given an effect which will he prejudicial to the rights of his cotenants, such conveyance will be given effect as far as is consistent with the full rights of the nonconveying cotenants.” (Emphasis supplied.)

In support of the exception, it is not amiss to point out that the law is well settled that a conveyance by a tenant in common which purports to describe a definite parcel of the property, as where the description is by metes and bounds, will be effective to protect the grantee in respect to partition proceedings in cases where the rights of other cotenants are not prejudiced, as where land of such an area or value remains unconveyed, out of which their share may be satisfied in full. Highland Park Manufacturing Co. v. Steel, 4 Cir., 235 F. 465, 149 C.C.A. 11 (certiorari denied 242 U.S. 640, 37 S.Ct. 113, 61 L.Ed. 541); Ferris v. Montgomery Land & Improvement Co., 94 Ala. 557, 10 So. 607; Lawrence v. Boswell, 155 Ga. 690, 118 S.E. 45; Potter v. Wallace, 185 Ky. 528, 215 S.W. 538; Pellow v. Arctic Iron Company, 164 Mich. 87, 128 N.W. 918, 47 L.R.A.,N.S., 573; Young v. Edwards, 33 S.C. 404, 10 S.E. 1066, 10 L.R.A. 55; Hitt v. Caney Fork Gulf Coast Co., 124 Tenn. 334, 139 S.W. 693; Brown v. Brown, Tex.Civ.App., 230 S.W. 1058; Oneal v. Stimson, 70 W.Va. 452, 74 S.E. 413.

In Boggess v. Meredith, 16 W.Va. 1, the court held that where a tenant in common attempted to convey a specific parcel of the common property the conveyance would be protected only so far as it did not prejudice the other cotenant and in making such partition, if the parcel alienated could be assigned to the purchaser as a part or the whole of the share of his grantor, without preptdice to the cotenant of the grantor in the entire tract, the court will so assign it, thereby making the pttr-chaser’s title perfect. If these exceptions are good as to a deed of sale, certainly they must be good as to a will. I think there is no substance to the contentions advanced by the majority for invalidating the devise to Mrs. Turner. The record shows that Mrs. Elmore was thoroughly familiar with the res and knew what she was doing. Her interest was more than ample to cover this devise and in making it she gave heed to and did not transgress her interest or right of testamentary disposition.

As for the devise to appellant, Joseph Elmore, for life with remainder to Everett Elmore and Carolyn Elmore Upson, the grandchildren of testatrix and children of appellant, the majority opinion also declares an intestacy because of the “incongruous position” Joseph Elmore will be placed in, account of being the owner in fee of'an undivided one-half interest in the nine and one-half acre tract as well as a life tenant as to the other undivided one-half interest in the same property. Finally the majority opinion points out that appellant does not seek to partition the land but rather seeks to avoid the devise, and says that it does not appear that the grandchildren could maintain a suit for partition, consequently he [appellant] might not be able to sell his fee simple interest and the executor might be hindered in closing the estate.

All these challenges to the validity of his mother’s will on the part of appellant, including his alleged “incongruous position” and “theoretical difficulty * * * impossible to surmount,” are nothing more than gripes of dissatisfaction because the will was not made as he would have liked it rather than as it was. Not one of his objections shows illegality or that it was contrary to public policy. No lament is expressed for the grandchildren of the testatrix who are the natural objects of her bounty and who are completely disinherited by the majority opinion. There is no more common or natural disposition of property known to the law than a devise to one’s child for life with remainder to grandchildren, especially when the child has already received one-half of all the real property accumulated by his father, albeit an undivided interest, and then receives from his mother a life estate in the remaining portion, as is the case at bar. Brush all the chaff from the objections raised, get right down to the kernel in the corn and there is nothing to them except that when grandma prepared her will she was not quite “choosy” enough in selecting Sunday clothes for her rural English or as the Irish might say, her “shanty English.” In fact if appellant had been given a fee instead of a life estate, this case would never have been here. No court has yet given a situation like this as reason for striking down the will.

In my view any discussion of partition at this time is premature. All we are required to do is construe the will. The emphasis on partition by the majority opinion does nothing more than obscure the main issue. What I have said about partition in this opinion was merely for the purpose of demonstrating that the rule relied on so confidently by the majority opinion is not rigid and is not applied when the rights of all interested parties may be preserved under the exception to the rule. On its face I can find no valid objection to the will. If the time comes that the parties cannot compose their differences, partition might be in order but not now.

There was no reason under law why the testatrix could not devise one acre to Mrs. Turner fronting on Fifteenth Street and the balance of her estate to her son for life, remainder over to her grandchildren. To contend that she had to get her son’s consent to do this or that it would delay administration is ridiculous but even so, it would not render the bequest or any of them illegal. The facts may be such that the gift to Mrs. Turner would be within an exception. At any rate there is no showing of prejudice to appellant’s devise and under any circumstance an opportunity should be given to effectuate all devises before striking the will down. It is, of course, commendable to dispose of estates promptly but the time of disposition does not vitiate them or the will that precipitates them, if the time of administration is not unduly strung out. I can find nothing in the will that generates an “incongruous position” or a “theoretical difficulty * * * impossible to surmount.” On the other hand, when read in the light of the principles detailed in the forepart of this dissent, I find nothing but a plain, everyday will, the like of which has been made many times and upheld. I would uphold this one. I am more interested in effectuating the intent of the testatrix and in doing justice to the bona fide beneficiaries than I am in responding to the caprice of a disappointed beneficiary. There is no showing whatever that the one acre devised to Mrs. Turner cannot be allocated to her from the interest of the testatrix and certainly the devise to appellant for life remainder over to the grandchildren should stand.

After all is said the primary trouble with the majority opinion is that it looks too much like a search for reasons to strike down one’s will instead of a search for reasons to uphold it as courts are required to do. There certainly is no legal objection to the devise to Mrs. Turner and there is no showing here that it cannot be defined and allocated to her from the interest of the testatrix. It would be utter folly to assert that the devise of a life estate to appellant, remainder over to the grandchildren [appellant’s children] was illegal or could not be executed. “Incongruous position” and “theoretical difficulty” should never be permitted to strike down a will as plain in directive as this one.

I would reverse the decree and direct the entry of one in accordance with this opinion. I am authorized to say that Mr. Justice ROBERTS concurs in the view herein expressed.

ROBERTS, J., concurs.-  