hold such of the chattel interests as do to her grandson, B., to the use of him pass by the will, subject to the payment and his heirs, and stated that it was her of the debts of the testator, and not as specific legacies. McLeod v. Dell, 9 Fla. 451. § 38. Legatee's interest. intention to make no provision for her daughter, C., or her granddaughter, D., as in her judgment they will be more amply provided for by her grandson, B., than they could be by her in her will, (1853). The statute of distributions it was held that no trust in favor of C. can not be taken as a rule to ascertain was created. the extent of a legatee's interest. Lines v. Darden, 5 Fla. 51. (1854). A legacy shall be taken to vest at the death of the testator, unless manifestly against the intention of the will. § 39. Young v. McKinnie, 5 Fla. 542. -Trusts by construction. (1853). Where a testator gives and bequeaths to his only daughter all his estate during her life, and directs that at her death the property be equally divided among the children of the life tenant; and further expresses his "will and desire" that should either of his grandsons arrive at the age of twenty-one or any of his granddaughters marry, previous to the time of final distribution, such grandson or granddaughter shall receive a portion of the estate as a loan, to have the management and receive the benefit of the same until the final distribution shall take place, when the property thus loaned shall return to the estate to be equally divided; held, that the will did not create a trust for the benefit of the grandchildren, but merely vested a power in the daughter to be exercised at her discretion. Lines v. Darden, 5 Fla. 51. (1910). If there is certainty as to the parties who are to take as beneficiaries, a trust may be created by the expression in a will of a wish or desire on the part of the testator. Floyd v. Smith, 59 Fla. 485, 51 So. 537, 37 L. R. A. (N. S.) 651n, 138 Am. St. 133, 21 Ann. Cas. 318. (1910). Where a testatrix devised and bequeathed all her estate of every kind Floyd v. Smith, 59 Fla. 485, 51 So. 537, 37 L. R. A. (N. S.) 651n, 138 Am. St. 133, 21 Ann. Cas. 318. § 40. Power conferred on executor. (1883). The estate of a testator is not liable for debts contracted by the executor in connection with the estate, unless the will give the executor power to charge the estate. Such power is strictly limited to the terms of the will and creates an express trust to notice of which parties are held in dealing with the executor. Fridenburg v. Wilson, 20 Fla. 359. (1883). Where testator orders his business to be carried on by his executor prima facie the only fund liable to subsequent creditors of his executor's carrying on the business is that which was employed in the business by the testator. Fridenburg v. Wilson, 20 Fla. 359. (1890). A testamentary power to the executor to sell and convey the real estate does not vest the title in the executor. Simmons v. Spratt, 26 Fla. 449, 8 (1890). Where land is devised to tenants in common with power to the executor to make distribution, an actual distribution and its acceptance vests the title to the separate parts in the distributees, in severalty without the execution of a deed. Simmons v. Spratt, 26 Fla. 449, 8 So. 123, 9 L. R. A. 343. (1913). Where a testator directs the payment of debts and legacies with the proceeds of real estate, the executor | husband surviving, the son became sole takes a power of sale by implication; heir to the whole real property of the but a power of sale is not implied solely testator. from a direction that the executor pay debts and legacies. First Baptist Church v. American § 41. Power to sell. A testamentary power to sell is not to be construed as a power to mort gage. Young v. McKinnie, 5 Fla. 542. (1858). Devise to A, her heirs and assigns, for and during her natural life. Held to convey a fee. Merritt v. Brantly, 8 Fla. 226. (1861). Devise as follows: "Where my property is given, devised and bequeathed, or in any manner disposed of by this will, to any of my children or (1883) Fridenburg V. Wilson, 20 their children, it is my express will that Fla. 359; it shall be enjoyed by them, during their (1884) Wilson v. Fridenburg, 21 Fla. | life time, and upon their death it shall 387. § 42. Residuary clause. (1861). A devise of "all the rest and residue of my property and estate, real and personal, and of every kind and description whatsoever," embraces the corpus of the testator's property not otherwise disposed of. And go to and be vested in their children, if any, and upon failure of any of my children or their children, then the property to which my said children or their children, might have been entitled under this will shall be divided among my surviving children or their children. in no case where my property is devised, willed, or bequeathed, or in any manner disposed of to any of my children, shall they sell or convey the same, (1884). Where a testator inserts no nor shall it be subject to their debts; residuary clause in his will, but dies but the property shall be held for life, intestate as to a portion of the property, and upon the death of any of my chilno words of exclusion in the will can dren, or grandchildren, where my propprevent the heir from taking the property is directly willed to them, the same erty undisposed of. shall go to and vest in their children; McDougald v. Gilchrist, 20 Fla. 573. and upon the failure of such children, MaGee v. Alba, 9 Fla. 382. § 43. Particular wills construed. then the property thus held by them, upon their deaths, shall be equally divided among my surviving children or their children." Held, that the immediate takers took a life estate; that the words "or their children" were words of purchase and not of limitation, and that the takers under them took as remaindermen; and that the devise was not with (1854). Devise as follows: "It is my will and desire that my property shall be equally divided between my wife, daughter and son." Held a present gift to the devisees and not controlled by the next clause: "It is my will and desire that all my property be kept together for the use and benefit of my in the rule of perpetuities. said wife and children," the sole effect McLeod v. Dell, 9 Fla. 427. of the latter clause being to postpone the division. Also held, that upon the (1861). Bequest as follows: "The death of the daughter under age, un-property which may come to A. L. unmarried, and without issue, her brother der this will shall be under the control became her sole heir, and upon the and management of my executors, and death of the mother leaving a second shall not under any circumstances be subject to his debts; but he shall enjoy | legacies and subject to payment of debts it during his natural life, and upon his and administration costs. death it shall go to his children." Held, that A. L. took a life estate as cestui que trust; that at his death the property was not assets to be administered by his administrator; but that on his death the trust became executed and the property must be turned over to the remainderman. McLeod v. Dell, 9 Fla. 427. (1864-1865). Life estate to A, remainder to B, with limitation to B's children in case B dies before the lifetenant. Held good. Braswell v. Downs, 11 Fla. 62. Benedict v. Wilmarth, 46 Fla. 535, 35 So. 84, 4 Ann. Cas. 1033. (1903). Widow is not estopped to make her election to claim dower or a child's part in her husband's estate by qualifying as executrix. Benedict v. Wilmarth, 46 Fla. 535, 35 So. 84, 4 Ann. Cas. 1033. (1906). Revised Statutes 1830 and 1833 provide how the widow may dissent from the terms and provisions of a will and also give her the right to elect whether she will take dower or a child's part in the estate. Saxon v. Rawls, 51 Fla. 555, 41 So. 594. § 44. Particular words and expressions. (1860). Devise to A and the heirs of his body, with a limitation over, in a subsequent part of the will, in case A Idies without heirs of the body. Held to a definite failure of issue, and the special provisions in such will for mean that the limitation was good as an ecutory devise. Russ v. Russ, 9 Fla. 105. ex (1860). In a will, the words "dying without heirs of the body," mean a definite failure of issue at the time of death. Russ v. Russ, 9 Fla. 105. (1861). In a will, the word "children" means, prima facie, sons and daughters. McLeod v. Dell, 9 Fla. 427. § 45. Election by widow. (1854). In order to impose upon a party claiming under a will the obligation of making an election, the intention of the testator must be expressed or clearly implied in the will itself. Young v. McKinnie, 5 Fla. 542. (1903). Facts justifying the filing of a bill in equity by the widow to enforce her election to take a child's part. Benedict v. Wilmarth, 46 Fla. 535, 35 So. 84, 4 Ann. Cas. 1033. (1921). When a widow elects to take a child's part in her deceased husband's testate estate, such election repudiates her benefit, but does not annul or repudiate the provisions of such will specially authorizing, empowering, or directing the executors named in such will to sell and convey specific property, though such election may entitle her to her child's part in the proceeds of such sale. Virginia-Carolina Chemical Co. v. Ward, Fla., 88 So. 125. - (1921). Where it is alleged that a sale of decedent's land was duly made by his executors and trustees under his will, and this is not denied, the chancellor will not be held in error for sustaining exceptions to portions of an answer averring that the sale of decedent's land was subject to the widow's claim of a child's part, since, if the widow elected to take a child's part, she takes subject to the valid provision of the will authorizing the sale of property, in the proceeds from which sale she may have the interest of a child's part. Virginia-Carolina Chemical Co. v. (1903). The claim of a widow elect-8 46. Suits for construction. ing to take a child's part is superior to (1913). Devisees or heirs at law of a WINES. Judicial notice of intoxicating properties, see Evidence, § 15. testator, who claim merely legal estate WIRES. WISDOM. ate powers, or where the court has ob- Construction of statutes, see Statutes, tained jurisdiction of the cause for some other purpose. Beccaise v. Beccaise, 65 Fla. 441, 62 WINDING UP. See Corporations. Suits to wind up partnership, see Partnership, § 18. § 65. WITHDRAWAL. Motion for new trial, see New Trial, § 33. Plea of guilty, see Criminal Law, § 42. Plea of not guilty, see Criminal Law, § 48. Pleas, see Pleading, § 58. WITNESSES. This topic INCLUDES the production of oral testimony at trials and covers matters of procuring the attendance of witnesses, their competency, examination, impeachment or corroboration; competency of accomplices as witnesses; and the privilege of witnesses. It EXCLUDES witnesses to particular instruments (Deeds; Wills; and titles of particular instruments); the taking of written testimony (Depositions); competency of evidence sought to be adduced (Evidence; Criminal Law; and titles to particular crimes); and the crime of giving false testimony (Perjury). Analysis. I. Attendance and Compensation. § 1. Compelling attendance. 2. Compensation in general. § 3. Mileage and attendance. § 4. When person becomes witness. § 5. Voir dire. II. Competency of Witnesses. § 8. Capacity and qualifications in general. § 10. Children as witnesses. § 11. Religious belief. § 15. Jurors testifying as to their proceedings. Parties and persons interested in event in general. Interest in transaction. How established. Incompetency of interested parties to testify as to transactions with one subsequently deceased or incompetent in general. Actions in which testimony is excluded. Parties whose testimony is excluded. Parties against whom testimony is excluded. Subject matter of the testimony. Waiver of objections. Accomplices. § 16. $ 17. § 18. Preliminary questions. § 32. Form of questions in general. §33. Relevancy to matters in issue. Persons occupying confidential relations and privileged communications in general. Attorney and client. III. Examination of Witnesses. §38. Answers to questions. $39. Cross-examination in general. § 40. $41. § 44. $45. Limitation to matters drawn out on direct examination. Eliciting contradictory statements. Collateral matters. Wide latitude allowed in certain cases. Cross-examination of accused. Redirect examination. § 46. Privilege of witness as to evidence tending to criminate. IV. Credibility and Impeachment. § 50. Credibility in general. § 51. § 52. $ 53. $ 54. 55. $56. 57. Falsus in uno, falsus in omnibus. Examination to test credibility of witness in general. Interest of witness. Character and reputation in general. Reputation for veracity. Prior inconsistent statements of witness in general. Laying foundation. Impeachment as to collateral matters. $61. Impeachment of accused as witness. § 62. Impeachment of party's own witness. 63. How far answers on cross-examination may be contradicted. 64. Identification of impeached witness. |