Cartinhour v. Houser

• Decision Date: 28 July 1953
• Citation: 66 So.2d 686
• Parties: CARTINHOUR v. HOUSER et al.
• Court: Florida Supreme Court

Page 686

66 So.2d 686

CARTINHOUR v. HOUSER et al.

Supreme Court of Florida, Special Division A.

July 28, 1953.

H. N. Boureau and Shutts, Bowen, Simmons, Prevatt & Julian, Miami, for appellant.

Copeland, Therrell & Baisden, Miami Beach, for appellees.

DREW, Justice.

This appeal presents the sole question of whether the lower Court was correct in holding that the following provisions of the will of Ella T. Gullette did not violate the rule against perpetuities:

"Item Four: I hereby give, grant, devise and bequeath unto the said Roosevelt C. Houser, as trustee for the purposes hereinafter set forth and contained, all of the remainder and residue of my property, real, personal and mixed, wheresoever and whatsoever whether in esse or in future after the payment of those items mentioned in Item One of this Will.'

"Item Six: It is my express will and desire that my executor and trustee shall collect all interest falling due as the same shall become due and payable upon any mortgages, bonds or promissory notes, payable to me or in which I have any interest, and also all dividends upon the outstanding stocks in any corporation whatsoever which I may own and the income and proceeds arising therefrom to be paid to my sister, Julia T. Cartinhour, as long as she lives, and upon her death the income to be paid to my nephew, Gaines T. Cartinhour and my niece, Eleanor C. Goodman, equally, within not less than ten (10) years after the death of said Julia T. Cartinhour.

"Item Seven. With reference to interest which I have in property situate in Miami, Dade County, Florida, it is my desire that these properties be kept intact for a period of not less than ten (10) years after my death and the death of my sister, Julia T. Cartinhour, together with any funds which are invested in mortgages, unless in the discretion of the trustee it seems advisable that one or more of them should be sold because of changing conditions in the city of Miami, and as long as they are operated profitably and that the net income from said properties and estate as above mentioned, after paying necessary administration expenses, trustee fees or other items which may be necessary from time to time to maintain said estate, is to be paid over and delivered to my sister, Julia T. Cartinhour as long as she lives and my said executor is herein and hereby authorized to make such distribution monthly, quarterly or semi-annually as in his discretion seems advisable.

"Item Eight. In the event of the death of my sister, Julia T. Cartinhour, the income would then go to my niece, Eleanor C. Goodman, and my nephew, Gaines T. Cartinhour. In the event of the death of Eleanor C. Goodman before the distribution of my estate, her one-half interest is to go to her child or children. In the event of the death of Gaines T. Cartinhour before the distribution of my estate, his one-half interest is to go to his wife, June, and the child or children of Eleanor C. Goodman, a one-half interest being set up for June Cartinhour and the remaining one-half interest of his estate to go to the child or children of Eleanor C. Goodman. It is my intention that all of my properties, real, personal and mixed, be kept intact for a period of not less than ten (10) years or longer in the discretion of the executor or trustee, from the date of my death and the death of my sister, Julia T. Cartinhour, and that at the end of said ten (10) years, if in the discretion of the executor or trustee, the estate should be distributed, and that Eleanor C. Goodman and Gaines T. Cartinhour are still living and in good health and possessed of all their normal faculties, that my estate should finally be distributed to them in equal parts, share and share alike, provided that the said Julia T. Cartinhour is to have the entire income from my estate as long as she lives."

In Story v. First Nat. Bank & Tr. Co., 115 Fla. 436, 156 So. 101, 104, the common law rule against perpetuities, which prevails in this State, was summarized in the following language:

'Under the rule against perpetuities, the vesting of an estate under a will or deed can be postponed no longer than a life or lives in being and twenty-one years plus the period of gestation. * * *'

See also Adams v. Vidal, Fla., 60 So.2d 545.

It is admitted in the record that Julia T. Cartinhour, the sister of Ella T. Gullette, predeceased her, therefore all references to her in the will--so far as the question before us is concerned--may be eliminated except insofar as necessary to ascertain the intention of the testatrix in the distribution of her...