
    In re ESTATE of Diana Lynn SHINE, Deceased.
    No. 79-1859.
    District Court of Appeal of Florida, Fourth District.
    Oct. 8, 1980.
    Rehearing Denied Dec. 2, 1980.
    J. B. Patterson of Patterson, Maloney, Blyler & Feige, Fort Lauderdale, for appellant Bobbye C. Shine.
    Montgomery, Lytal, Reiter, Denney & Se-arcy, P. A., and Edna L. Caruso, West Palm Beach, for appellee John Gray.
   ANSTEAD, Judge.

At issue is whether the trial court erred in determining that Frank and Diana Shine died simultaneously for purposes of probate of their respective estates. Under Section 732.601(1), Florida Statutes (1979), when the devise of property depends on the priority of death of two persons and there is insufficient evidence that the persons have died otherwise than simultaneously, the property of each shall pass as if that person had survived. In this case there was evidence presented by the appellant which indicated that Diana died before Frank. However, there was also expert medical testimony presented which indicated that such evidence was inconclusive as to the issue of whether Diana died before Frank or whether they died simultaneously. Under such circumstances and considering that Section 732.601(1) expressly requires the trial court to determine not whether there is any evidence, but rather whether such evidence is sufficient to conclude that there were not simultaneous deaths, we do not believe the trial court erred.

Accordingly, the judgment of the trial court is affirmed.

DOWNEY and BERANEK, JJ., concur.  