In re Estate of Davol - 100 So. 2d 188 (Fla. Dist. Ct. App. 1958)

Rule:

Fla. Stat. ch. 731.25 is separate and independent from the statute designating the various classes of heirs in intestacy, Fla. Stat. ch. 731.23, and can hardly be construed otherwise than, as its literal language indicates, a section specifically governing the manner of distribution as opposed to the order of succession and making a blanket provision that the mode of distribution shall always be per stirpes or by representation.

Facts:

Appellants were the five children of decedent’s brother John, together with representatives of another of his sons who died subsequent to his aunt. Appellant contended that the method of distribution of an estate should have been per capita. The lower court determined that the method to be used was per stirpes. On appeal, appellants contended that the general rule of representation, being one of necessity to prevent disinheritance of the more remote members of a class of heirs, was not resorted to except when those entitled to distribution were of an unequal degree of consanguinity.

Issue:

Was per capita the proper method of distribution in the instant case?  

Answer:

No.

Conclusion:

The court affirmed the order of the lower court that the method of distribution of an estate to heirs of equal consanguinity was per stirpes. The court held that the precise statutory language of Section 731.25, Florida Statute, F.S.A did not permit per capita distribution to heirs of equal consanguinity.