Herman's Estate, In re, 80-1483

• Citation: 427 So.2d 195
• Decision Date: 10 November 1982
• Docket Number: No. 80-1483,80-1483
• Parties: In re ESTATE OF Leo J. HERMAN, Deceased.
• Court: Court of Appeal of Florida (US)

Page 195

427 So.2d 195

In re ESTATE OF Leo J. HERMAN, Deceased.

No. 80-1483.

District Court of Appeal of Florida Fourth District.

Nov. 10, 1982.

Rehearing Denied March 18, 1983.

Arnold J. Hoffman, Arthur J. Menor, Alan D. Gordon, and C. Michael Spero of Wien, Lane & Malkin, Palm Beach, for appellant, Edna Greenbaum.

Warren M. Salomon, Miami, for appellee, Hadassah, the Women's Zionist Organization of America, Inc.

Linda K. Raspolich of Abrams, Anton, Robbins, Resnick, Schneider & Mager, P.A., Hollywood, for appellee, Betty J. Herman, Personal Representative of Estate of Leo J. Herman.

GLICKSTEIN, Judge.

This is an appeal from an order determining that appellant was without standing to contest a charitable devise. We affirm.

On November 17, 1978, Leo J. Herman executed a will and a revocable living trust. His will provided that certain personal property would go to his wife if she survived him, and the rest, residue and remainder would go to his wife as trustee under the trust, to be held and administered as if it were part of the initial corpus of the trust. The will recited that no provision was made in either instrument for the decedent's daughter, appellant herein.

The trust provided that upon the settlor's death the trustee was to distribute from the corpus of the trust the sum of $25,000 and a gas station in New York to the settlor's granddaughter. It further provided that if the settlor's wife survived him, the trustee was to divide the balance of the corpus into two separate trusts, designated as Trust A and Trust B. Trust A was a marital deduction trust, and Trust B was the balance of the original trust corpus after deducting the $25,000, the gas station and the sum allocated to Trust A. During her lifetime, the decedent's wife was to receive under Trust B an annuity equal to six percent of the trust's assets. Upon her death the remaining corpus and income was to be distributed to the charitable organization Hadassah, The Women's Zionist Organization of America, Inc.

The decedent died on February 2, 1979. Subsequently appellant timely filed a petition to void the charitable bequest made as to Trust B. She relied upon section 732.803(1), Florida Statutes (1977), ¹ which enables a lineal descendant or spouse of the decedent to have a charitable devise avoided when the will was executed less than six months before death. The trial court held that because appellant was not a specified person who would receive any interest in the devise if it was avoided, she had no standing to file the petition. It reasoned that whether SECTION 732.604(1) FLORIDA STATUTES (1977)² OR (2), ³ applied, appellant would receive nothing.

On appeal, the disinherited daughter argued in her briefs that she has standing because only Trust B is the residuary estate and, if it fails pursuant to section 732.803, its assets pass by way of intestacy, allowing her to share. On the other hand, appellees argued in their briefs that appellant has no standing because Trusts A and B constitute the residuary estate and, if Trust B fails, its assets pass to Trust A pursuant to section 732.604(2); in that event appellant would not share.

After oral argument we requested supplemental briefs because of our concern with (a) the apparent conflict between the definition of "devisee" in SECTION 731.201(9), FLORIDA STATUTES (1977)⁴ and the term "residuary devisee" in section 732.604(2), Florida Statutes (1977), and (b) the determination of what the residue was in this case and the effect of that determination. Having reviewed those responses and re-examined the definition of "beneficiary" in section 731.201(2), Florida Statutes (1977), ⁵ we have reached the following conclusions:

1. The residue is not Trusts A and B nor Trust B alone, but consists of all assets devised to the trustee pursuant to Article IV of the testator's will. We reach that conclusion simply by reading the two dispositive clauses of the will. ⁶ The effect of that determination is to make the applicability of section 732.604(2) the primary consideration in the case.

2. Appellant has no standing to attack the charitable devise because, were it avoided, she would receive no interest in it. To reach this conclusion we have engaged in what we believe to be logical statutory construction; namely, reading section 732.604(2) in pari materia with section 731.201(2), as it was intended by the legislature, and not literally with section 731.201(9), as such clearly was not the legislative intent. The net result is that section 732.604(2) applies and controls.

The term "devisees," as used in section 732.604, plainly was not intended to refer to trustees as used in section 731.201(9), but to beneficiaries as used in section 731.201(2). We suggest at least four reasons for such conclusion. First, if there is only one trustee and several beneficiaries of the residuary devise, the conclusion that the "residuary devisee" was the trustee would always result in intestacy as to that part of the residue which failed for any reason. (This is because only section 732.604(2) deals with residuary devises that fail; and it expressly requires more than one residuary devisee before it applies.) Such result is contrary to the rule of construction in section 732.6005, Florida Statutes (1977). ⁷ Second, assuming there were two trustees as "devisees" of the residue pursuant to section 731.201(9), they still would not be the "residuary devisees" under a will designating several beneficiaries of the residue. The trustees obviously do not have proportionate interests in the residue, whereas beneficiaries do, and section 732.604(2) expressly refers to the proportionate interests of the residuary devisees. Third, to conclude otherwise would wipe out a line of well-reasoned decisions interpreting the statutory predecessor to section 732.604(2) ⁸ as intending that failed residuary gifts inured to the benefit of the remaining residuary beneficiaries. In re Estate of Clark, 212 So.2d 72 (Fla. 4th DCA 1968); Magruder v. Magruder, 157 So.2d 86 (Fla. 2d DCA 1963). Fourth, and perhaps most important, section 732.6005(1), Florida Statutes (1977), stated:

The intention of the testator as expressed in his will controls the legal effect of his dispositions.

For whatever reason, it is plain the testator intended his daughter receive no part of his estate. Accordingly, we affirm the trial court's decision for the reasons recited herein.

DOWNEY and ANSTEAD, JJ., concur.

1 Section 732.803(1), Florida Statutes (1977), reads:

(1) If a testator dies leaving lineal descendants or a spouse and his will devises part or all of the testator's estate:

(a) To a benevolent, charitable, educational, literary, scientific, religious, or missionary institution, corporation, association, or purpose,

(b) To this state, any other state or country, or a county, city, or town in this or any other state or country, or

(c) To a person in trust...