4D09-508-Pajares v. Donahue

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State: Florida

Court: Florida Southern District Court

Docket No: 4D09-508.op

Case Date: 03/17/2010

Plaintiff: 4D09-508-Pajares

Defendant: Donahue

Preview:DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
January Term 2010

GLADYS PAJARES, Appellant, v. CONCHITA DONAHUE, as the Personal Representative and beneficiary of the estate of Olga Kuhnreich, NICOLE ROGES, GINA NORRIS f/k/a GINA DONAHUE, CONCHITA ABAD, MARIA DE CUENA, ROBERT KUHNREICH, DAVID ABAD a/k/a DAVID MEARS, and ORLANDO ABAD a/k/a LANE ABBOTT, Appellees. No. 4D09-508 [March 17, 2010] GROSS, C.J. We affirm the circuit court's construction of a will, ruling that a decedent's primary residence was to b e sold without a homestead classification. The will contained specific language indicating that the homestead was to be sold and the proceeds divided, so that the residence lost its "protected" homestead status. Olga Kuhnreich died in 2007. She executed a will in 2004. The personal representative of the estate, Conchita Donahue, petitioned the circuit court for construction of the will. Article One of the will stated that Kuhnreich's husband was deceased and she had no children. Article Three, entitled "Specific Bequests of Real and/or Personal Property," concerned two parcels of real property. First, a West Palm Beach condominium unit1 was devised outright to two named devisees. Second, "[f]rom the sale of: 202 N.W. 18 Street[,] Delray Beach, Florida 33444," the will bequeathed specific dollar amounts to five persons: Robert Kuhnreich, $5,000; "Lane Abbot, AKA Orlando Abad," $10,000; "David Mears, AKA David Abad," $10,000; "Connie Abad, AKA Conchita
1The

estate inventory valued the condominium at $207,000.

Abad," $30,000; and Maria De Cuena, $5,000. Article Three ended with this sentence: "In the event that I do not possess or own any property listed above on the date of my death, the bequest of that property shall lapse." Article Four was entitled "Homestead or Primary Residence." stated: I will, devise and bequeath all my interest in my homestead or primary residence, if I own a homestead or primary residence on the date of my death that passes through this Will, to see above primary residence. If I name more than one person, they are to receive the property [X] equally, after all estate taxes, debts are satisfied.
Name
Gladys Pajares

It

Address
1150 N.E. 155 Street, N. Miami Beach Fla.

Relationship
Sister Niece

Conchita Donahue 44 Pine Oak Drive, Littleton, Colorado Property: Primary Resident[sic] 202 N.W. 18 Street Delray Beach, Florida 33444

As personal representative, Donahue petitioned the circuit court to construe the will. She sought a declaration that the Delray Beach house was homestead property not subject to administration, so that it passed to Donahue and Gladys Pajares by operation of law, which would have the effect of nullifying the specific devises in Article 3. Prior to the hearing o n the petition, the parties agreed that no extrinsic evidence would be presented. The trial court's final order found that the will demonstrated the decedent's intent that the house in Delray Beach, which was her homestead or primary residence, be sold by the Personal Representative of her estate, that the proceeds be used to make the specific bequests set forth in Article Three, and that the remaining proceeds after payment of all estate taxes and debts go in equal amounts to the devisees set forth in Article Four. The court granted the personal representative's request to sell the Delray Beach property for $300,000. Gladys Pajares, an Article Four devisee, appeals. Pajares contends the circuit court erred because the will should have been strictly construed in favor of retaining the homestead exemption
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contained in Article X, Section 4 of the Florida Constitution. However, the polestar to will interpretation is the intent of the testator. Morgenthaler v. First Atl. Nat'l Bank of Daytona Beach, 80 So. 2d 446, 452 (Fla. 1955); see also

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