Hulsh v. Hulsh

• Decision Date: 03 May 1983
• Docket Number: No. 81-1299,81-1299
• Citation: 431 So.2d 658
• Parties: Marcella Brosilow HULSH and Fred Brosilow, Appellants, v. Rea R. HULSH, Appellee.
• Court: Florida District Court of Appeals

Page 658

431 So.2d 658

Marcella Brosilow HULSH and Fred Brosilow, Appellants, v. Rea R. HULSH, Appellee.

No. 81-1299.

District Court of Appeal of Florida Third District.

May 3, 1983.

Rehearing Denied June 7, 1983.

Lapidus & Stettin, Herbert Stettin and Robert P. Frankel, Miami, for appellants.

Louis Schwarzkopf, Miami Beach, Horton, Perse & Ginsberg and Mallory H. Horton, Miami, for appellee.

Before HENDRY, DANIEL S. PEARSON and FERGUSON, JJ.

DANIEL S. PEARSON, Judge.

The issues in this case are (1) whether the language of a post-will antenuptial agreement between the decedent and the widow was effective to waive the widow's right to take under the will; and, if so, does the widow's disqualification affect the rights of her son to take under the will; (2) whether the widow was barred by the Deadman's Statute from showing that the antenuptial agreement was destroyed by the decedent and her; and (3) whether a provision in the will giving the widow and decedent's mother life estates in a residuary trust was so incompatible with a later provision giving the decedent's stepson (the widow's son) the corpus of the residuary trust when he attains a certain age as to justify the nullification of the latter provision.

The essential facts are these. In 1971, when Sheldon Hulsh executed the will in question, his close friend was Marcella Brosilow, a woman he later married. Sheldon's will made certain specific bequests, following which it established a testamentary trust in the residuary. The trust was to be distributed in accordance with the following numbered paragraphs of Article V D):

"1. If my mother, REA R. HULSH, survives me, then during her lifetime fifty (50%) percent of the net income from the residuary trust shall be paid to or applied for her benefit in convenient installments, but not less frequently than quarterly and the remaining fifty (50%) percent of the net income from the residuary trust shall be paid to MARCELLA BROSILOW or applied for her benefit in convenient installments but not less frequently than quarterly.

"2. If my mother, REA R. HULSH, shall not survive me, but my father, BENJAMIN M. HULSH, shall survive me, then, in lieu of the provisions set forth in sub-paragraph D)1. above, I desire and direct that during the lifetime of my father, twenty (20%) percent of all of the net income from the residuary trust be paid to or applied for his benefit in convenient installments but not less frequently than quarterly and the remaining eighty (80%) percent of the net income from the Residuary Trust shall be paid to MARCELLA BROSILOW or applied for her benefit in convenient installments but not less frequently than quarterly, if she survives me.

"3. If MARCELLA BROSILOW shall survive me and, if neither my father nor my mother shall survive me, then I desire and direct that during her lifetime, MARCELLA BROSILOW shall receive all the net income from the Residuary Trust which shall be paid to or applied for her benefit in convenient installments but not less frequently than quarterly and, upon the death of MARCELLA BROSILOW, my Trustee shall pay the net income from the Residuary Trust in convenient installments to or for the benefit of FRED BROSILOW, the son of MARCELLA BROSILOW, until complete distribution of the Residuary Trust as hereinafter provided, or the death of FRED BROSILOW prior to complete distribution; except as hereinafter provided while FRED BROSILOW is under the age of twenty-one (21) years.

"4. When FRED BROSILOW reaches the age of thirty (30) years, my Trustee shall distribute to him outright the corpus of the Residuary Trust and this Trust shall thereafter terminate. In the event that FRED BROSILOW shall not attain the age of thirty (30) years and in the further event that MARCELLA BROSILOW, my mother and my father shall not survive me, then I direct that my trustee shall distribute to my brother, CLAYTON HULSH, the principal of this Trust.

"5. If any portion of the Residuary Trust becomes distributable to FRED BROSILOW before he has attained the age of twenty-one (21) years, then such portion shall immediately vest in him, but my Trustee shall retain possession of such portion while FRED BROSILOW is under the age of twenty-one (21) years. In the meantime, my Trustee shall use or expend and apply so much of the income of such portion as my Trustee deems necessary or desirable for the medical care, education and support in reasonable comfort of FRED BROSILOW, adding any income not so used to principal at the end of each calendar year. My Trustee shall have as to each retained share all the powers of investment and administration had with respect to the Residuary Trust generally."

In 1976, Sheldon married Marcella Brosilow. Three days before the marriage they executed an antenuptial agreement, which provided in pertinent part that it was being made:

"In consideration of the premises and of the marriage, and consideration of each relinquishing any interest each has in the estate of the other, including dower, courtesy [sic], or any statutory shares ...."

and that the parties:

"expressly waive all rights which they might otherwise have or claim under the laws of the State of Florida, or any other jurisdiction, to the property of the other, including any such rights which might be claimed under the laws of dower, courtesy [sic], or the elective share of a spouse, or in any other manner by operation of law, and each hereby releases all marital property rights, including but not limited to homestead rights under the laws of the State of Florida or any other jurisdiction."

Sheldon died in 1980. After his will was admitted to probate, his mother petitioned to determine the beneficiaries of the estate. After a non-jury trial, the lower court found in pertinent part:

"1. That the clear and manifest intent of the Testator, SHELDON D. HULSH, at the time of the execution of his Will under date of December 17th, 1971, was to create life income estates for the benefit of his mother, REA R. HULSH, and his then friend, MARCELLA BROSILOW.

"2. That Article V (D) Page 7 [see paragraph numbered 4, supra, p. 3] of said Will seeking to cancel, annul and defeat the favored life income estates of REA R. HULSH and MARCELLA BROSILOW at the time FRED BROSILOW reaches the age of thirty years by then distributing outright the trust residuary to him ... is entirely diametrically opposed to and irreconcilable with the said life income bequests and, therefore, is void and should be stricken.

....

"4. That the resultant failure of the Trust to vest the residuary in a person or persons within lives in being and twenty-one years is a clear violation of the Rule against Perpetuities and consequently of itself voids the entire Trust.

"5. That the Antenuptial Agreement of May 13th, 1976 between the deceased, SHELDON D. HULSH, and MARCELLA BROSILOW admitted in evidence as Petitioner's Exhibit 1 is valid and binding upon said MARCELLA BROSILOW HULSH, bars her from taking under the Will and, therefore, any and all bequests to her under said Will are void and of no effect and should be stricken accordingly; ..."

The ensuing judgment of the trial court nullified all bequests to Marcella Brosilow Hulsh and Fred Brosilow, declared the residuary trust void, and awarded the residuary estate to the decedent's mother as the sole surviving ascendant beneficiary under the laws of descent and distribution. Marcella and Fred have appealed.

I. The Antenuptial Agreement

We have no difficulty in deciding that the language of the antenuptial agreement was sufficient to waive Marcella's rights to take under the provisions of Sheldon Hulsh's will. ¹ Section 731.005(1), Florida Statutes (1975) (currently § 732.702(1), Fla.Stat. (1981)), provides:

"The right of election of a surviving spouse and the rights of the surviving spouse to homestead, exempt property, and family allowance, or any of them, may be waived, wholly or partly, before or after marriage, by a written contract, agreement, or waiver signed by the waiving party. Unless it provides to the contrary, a waiver of 'all rights,' or equivalent language, in the property or estate of a present or prospective spouse, or a complete property settlement entered into after, or in anticipation of, separation, dissolution of marriage, or divorce, is a waiver of all rights to elective share, homestead property, exempt property, and family allowance by each spouse in the property of the other and a renunciation by each of all benefits that would otherwise pass to either from the other by intestate succession or by the provisions of any will executed before the waiver or property settlement."

The antenuptial agreement explicitly waives "all rights" to the "property of the other," which waiver, by virtue of the statute, constitutes "a renunciation by each of all benefits that would otherwise pass to either from the other ... by the provisions of any will executed before the waiver ...." The agreement contains as well the equivalent language "relinquishing any interest each has in the estate of the other," and has no provision which diminishes the breadth of the waiver. Thus, if still in existence at Sheldon's death, the agreement was fully effective to waive Marcella's rights. ²

II. Deadman's Statute

During the trial, Marcella attempted to prove that the antenuptial agreement had been rescinded. However, the trial court refused to admit the testimony of Marcella that on November 8, 1978, she and the decedent went to Sheldon's lawyer's office, obtained a bond copy original of the antenuptial agreement and tore it up. The heart of the proffered testimony was this:

"Q. [By Marcella's lawyer] Did there come a time when you accompanied your husband to [the lawyer's] office for the purpose of obtaining the original antenuptial agreement?

"A. Yes, sir.

"Q. Had there been discussions between you and your husband before going to [the lawyer's] office on why you wanted to do that?

"A....