Kunce v. Robinson

• Decision Date: 14 May 1985
• Docket Number: No. 84-2185,84-2185
• Citation: 469 So.2d 874,10 Fla. L. Weekly 1209
• Parties: 10 Fla. L. Weekly 1209 Thelma Jean Ulery KUNCE and Ruth F. Ulery Whitaker, Appellants, v. Duane H. ROBINSON, as Trustee, Appellee.
• Court: Florida District Court of Appeals

Page 874

469 So.2d 874

10 Fla. L. Weekly 1209

Thelma Jean Ulery KUNCE and Ruth F. Ulery Whitaker, Appellants, v. Duane H. ROBINSON, as Trustee, Appellee.

No. 84-2185.

District Court of Appeal of Florida Third District.

May 14, 1985.

Rehearing Denied June 17, 1985.

Don R. Livingstone, South Miami, for appellants.

Alfred J. Anton, Miami, for appellee.

Before SCHWARTZ, C.J., and BARKDULL and JORGENSON, JJ.

SCHWARTZ, Chief Judge.

On June 24, 1980, Ruth Freda Ulery executed an instrument creating an entirely revocable inter vivos, so-called "living," trust, into which she placed essentially all her real and personal property. Her nephew Duane H. Robinson was named trustee. The purposes of the trust were stated to be for the benefit of the grantor during her lifetime and then for her children and grandchildren. ¹ Accordingly, the key provision, which set forth the beneficiaries, provided:

Management and Distribution of Income and Principal of the Trust

A. During the lifetime of the Grantor, the Trustee shall manage the trust property and shall make distributions of income and principal in accord with the provisions of this Trust for the benefit of the Grantor. After Grantor's death, the Trustee shall manage the trust property and shall make distributions of income and principal in accord with the provisions of this Trust for the benefit of Grantor's children and the natural born children of Grantor's children.

B. After the death of the Grantor, the Trustee may make distributions of income or principal, or both, to or for the benefit of Grantor's children or the natural born children of Grantor's children or both, from time to time and in such amounts as the Trustee, in his sole and exclusive discretion deems necessary or desirable for their health, education, comfort, and general welfare, taking into consideration the standard of living to which they are accustomed at the time of Grantor's death.

On July 31, 1981, when Mrs. Ulery was hospitalized with cancer, she executed the trust instrument which is in issue here. The trust (Trust II) was funded with the identical property which had been contained in, but which was thereby constructively removed from the 1980 trust, ² as its terms permitted. Robinson, who was entirely responsible for the preparation and execution of the new instrument, was again the trustee. Of more significance, since the witnesses to the trust and Mrs. Ulery's relatives uniformly stated, although it was technically unnecessary because of the terms of the first trust, ³ that the settlor's sole reason for establishing Trust II was to acknowledge a recently-born grandchild, her intentions to benefit her children and grandchildren were restated in almost identical language. ⁴ , ⁵ The dispositive beneficiary provision, however, contained a drastically different addition. It stated:

Management and Distribution of Income And Principal of the Trust

A. During the lifetime of the Grantor, the Trustee shall manage the trust property and shall make distributions of income and principal in accord with the provisions of this Trust for the benefit of the Grantor. After Grantor's death, the Trustee shall manage the trust property and shall make distributions of income and principal in accord with the provisions of this Trust for the benefit of Grantor's children and the natural born children of Grantor's children, and others as the Trustee in his discretion may deem appropriate.

B. After the death of the Grantor, the Trustee may make distributions of income or principal, or both, to or for the benefit of Grantor's children or the natural born children of Grantor's children, or both, from time to time and in such amounts as the Trustee, in his sole and exclusive discretion deems necessary or desirable for their health, education, comfort, and general welfare, taking into consideration the standard of living to which they are accustomed at the time of Grantor's death. [emphasis supplied]

Mrs. Ulery died on June 17, 1982. In the wake of subsequent disputes concerning the administration of the trust assets, notably a home where one of them lived, between her two daughters and Robinson, they brought the instant action to cancel Trust II on the grounds (a) that it had been the product of his undue influence and (b) that it was unenforceably indefinite. After a non-jury trial, the court entered judgment for Robinson and the daughters have taken this appeal. We strike the clause of the trust which we find rendered it impermissibly vague, but otherwise affirm.

I

We first find no error in the trial judge's rejection of the claim of undue influence. We agree that Robinson's conduct in procuring the 1981 trust document fulfilled virtually every one of the elements of procurement outlined in In re Estate of Carpenter, 253 So.2d 697 (Fla.1971), thus giving rise, in the light of the confidential relationship he bore to her as her nephew and trustee, to a presumption of undue influence. We likewise do not recommend that an attorney, as did the one involved in this case, draft a dispositive instrument on instructions solely from an interested intermediary without ever seeing or speaking to the settlor or testator whose property is involved. Nonetheless, since there is substantial evidence to support it, we cannot interfere with the finding that, even considering these factors, the 1981 trust was the product of Mrs. Ulery's own unimpeded will. In re Estate of Carpenter, supra; Briscoe v. Florida National Bank of Miami, 394 So.2d 492 (Fla. 3d DCA 1981); Laufer v. Norma Fashions, Inc., 418 So.2d 437 (Fla. 3d DCA 1982).

II

We cannot, however, similarly agree with the conclusion that, as drafted, the 1981 trust may be permitted to stand. To the contrary, it is clear that that portion of the designation of beneficiaries which permits the trustee to make distributions to such "others as the Trustee in his discretion may deem appropriate" does not identify any particular entity, person or class, the members of which can enforce the trust. It must therefore be deemed void for indefiniteness. In re Estate of Kradwell, 44 Wis.2d 40, 170 N.W.2d 773 (1969) ("legacy in trust for heirs, legatees, and such other persons [executrix] may deem deserving and for benevolent objects" void); Moskowitz v. Federman, 72 Ohio App. 149, 51 N.E.2d 48 (1943); In re Dormer's Estate, 348 Pa. 356, 35 A.2d 299 (1944); Fitzsimmons v. Harmon, 108 Me. 456, 81 A. 667 (1911); G. Bogert, Trusts and Trustees, §§ 161 n. 16, 162 n. 57 (rev. 2d ed. 1979); 2 A. Scott, The Law of Trusts § 122 (1967); 1 Restatement (Second) of Trusts § 122 (1959); see Estate of Stewart v. Caldwell, 271 So.2d 754 (Fla.1973); Railey v. Skaggs, 220 So.2d 689 (Fla. 3d DCA 1969).

While this determination is virtually self-evident, what should legally follow from it is not nearly so clear. In several cases, indefiniteness in the dispositive provision of an instrument has been held to invalidate the entire trust it purports to create. ⁶ In re Estate of Kradwell, supra. On the other hand, there is well-reasoned authority to the effect that, when the result is compatible with the settlor's general intent, an invalidly uncertain provision should be severed from an accompanying enforceable one ⁷ so that the remaining provision, and the trust as a whole, may be preserved. We adopt that course here.

The general principles which favor the severability of void from valid trust provisions, see e.g. 2 A. Scott, supra at §§ 123, 398.1, and thus the vindication of the settlor's intent, which is the touchstone of our concern in these cases, were applied to a situation very much like this one in Armington v. Meyer, 103 R.I. 211, 236 A.2d 450 (1967). There, the court dealt with a trust provision which provided for distribution to (a) the trustees and designated relatives and (b) "for any and all men and women among my employees and acquaintances known to my said trustees to have been loyal to me in my inventions during the hard, up-hill struggle to establish my Wardwell Braiding Machine business." 236 A.2d at 453. The court held that the attempted disposition to "employees and acquaintances" was invalid for uncertainty, but that it was separable from the gift, which it deemed valid, to the specified trustees and relations. The court held:

The grantor's intent at the time of the execution of the trust instrument is controlling on the question of whether one grant is severable from another. Bateson v. Bateson, 294 Mich. 426, 293 N.W. 705. The general rule favors severability. As the court said in Bristol v. Bristol, 53 Conn. 242, 257, 5 A. 687, 692:

"But the principle to be applied is well settled, that where a trust is for several purposes, some valid and some invalid, it will be supported so far as it is good, provided such part is separable from the rest, and no violence will thereby be done to the testator's general intent."

See also 1 Restatement, Trusts 2d, § 65 at 176, where it is stated:

"If a provision in the terms of the trust is illegal, the trust fails altogether if, but only if, the illegal provision cannot be separated from the other provisions without defeating the purpose of the settlor in creating the trust."

If the discretionary gift of income to "aforesaid persons" is not severable and the entire clause is invalidated, the income must either be accumulated for ultimate disposition to the charitable remainder or revert to the testator's estate and pass by intestacy. We are of the opinion that the testator did not intend either of these alternatives to be applicable should his grant to "aforesaid persons" or his employees and acquaintances fail.

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