Lewis v. Green

• Decision Date: 24 September 1980
• Docket Number: No. OO-185,OO-185
• Citation: 389 So.2d 235
• Parties: William G. LEWIS, as Executor of the Estate of Beulah Robinson Lewis, Appellant, v. Raleigh Travers GREEN, III; Jan Singleton Carter, William Lytle Schultz, and Doris Robinson Schultz, Appellees. /T1-109.
• Court: Florida District Court of Appeals

Page 235

389 So.2d 235

11 A.L.R.4th 927

William G. LEWIS, as Executor of the Estate of Beulah Robinson Lewis, Appellant, v. Raleigh Travers GREEN, III; Jan Singleton Carter, William Lytle Schultz, and Doris Robinson Schultz, Appellees.

No. OO-185/T1-109.

District Court of Appeal of Florida, Fifth District.

Sept. 24, 1980.

Rehearings Denied Oct. 22, 1980.

A. Graham Allen of Freeman, Richardson, Watson, Slade, McCarthy & Kelly, P. A., Jacksonville, for appellant.

J. Grover Henderson of Stein & Henderson, St. Marys, Ga., for appellees.

SHARP, Judge.

The plaintiffs, Raleigh Travers Green, III, Jan Singleton Carter, William Lytle Schultz, and Doris Robinson Schultz, sought a declaratory judgment interpreting their rights under the will of John S. Robinson. This is the second time this will has been construed, ¹ and it will not be the last. The defendants are the Barnett Bank of St. Augustine, the trustee of the testamentary trust established by John S. Robinson's will, Margaret L. Dyer, William G. Lewis, and Rose Mae Francis Lewis Neville. ² The co-executors of the estates of Rose Robinson Lewis and Beulah Robinson Lewis intervened in the suit. They claim that immediate declaratory relief is needed to determine the rights of the estates to inherit under the will, in order to properly administer the estates. ³ Additional defendants are Rose Gordon Neville and Richard Henry Neville, the adopted children of Rose Mae Francis Lewis Neville; and Georgia Mason Furnival, James R. Dyer, Richard L. Furnival, and Margaret Dyer Furnival, the adopted children of Margaret L. Dyer. A "Robinson Family Tree" follows to assist the reader and this court in understanding the relationships of these parties.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

There is no dispute about the facts in this case. John S. Robinson, a resident of Jacksonville, Florida, executed his will on April 27, 1910. He and his wife, Lizette, had two daughters, Beulah and Rose. Their son, John, had died in 1909. John left a widow, Florence L. Robinson, and a daughter, Doris. At the time of the testator's death in 1915, Doris was seven years old. Article III of the will provided Doris would receive a $3,000 bequest when she attained 21 years, and conditioned her inheritance under the will as follows:

I further direct that in the event Florence L. Robinson, the mother of my grand-daughter, Doris L. Robinson, shall die before my said grand-daughter, then it is my will and I desire that said grand-daughter shall be given in sole charge of one of my three first named trustees ⁴ and my said trustees shall provide for the maintenance, care and education of my said grand-daughter out of the income from my estate until she shall reach the age of twenty-one years, and she shall share in my estate as my other grand-children as hereinafter provided, but in the event the said Doris L. Robinson shall not be given in charge of my said trustees by her mothers relatives, or she, herself, shall refuse to go into my said trustee's charge, then the said amount of three thousand ($3,000.00) dollars shall be the only amount she shall receive from my estate.

Florence died in 1917, leaving Doris in the care of maternal aunts. After the death of her grandfather, Doris visited her paternal grandmother every week until her grandmother died in 1924. As a teenager during the summers, Doris visited her Aunt Beulah and Aunt Rose in Virginia, spending two weeks with each. Neither Lizette nor the paternal aunts mentioned the condition in the will about Doris having to live with one of them to share in the estate. Nor did they ever ask or invite her to make her home with one of them. When Doris was nineteen she married and moved to Tampa with her first husband, Mr. Green.

The death of Lizette in 1924 triggered the first litigation concerning the construction of John Robinson's will. Doris filed a suit in 1929 to have her rights to income determined under the trust, her rights to the $3,000 bequest, and her rights to share in the estate as an heir. In Green v. Lewis, 113 Fla. 609, 151 So. 280 (1933), the Florida Supreme Court determined that Doris was entitled to receive one-third of her grandmother's share of the income from the trust during the existence of the trust by her "right of substitution." ⁵ Article V of the will provided that the trust would continue until twenty one years after the death of John's last surviving grandchild who was then living. All of the grandchildren (Rose Mae, John, William, Margaret, and Doris) were then living. Article IV of the will provided that the income of the trust would be paid 1/4th to Lizette, 1/8th to Beulah and 1/8th to Rose, or used proportionately for their benefits in the trustees' discretion. The Green court held that Article IV contained no conditions unmet by Doris which might prevent her from sharing the trust income by right of substitution.

Upon termination of the trust, Article VI of John Robinson's will provided:

(t)hen my estate shall be divided equally in the proportions to which their ancestors are entitled, among the surviving heirs of the issue of the beneficiaries herein named, provided however that no portion of my estate, except the special bequest of $3,000.00, shall go to my granddaughter, Doris L. Robinson, or her issue, unless the provisions of article three of this will shall have been strictly complied with.

The Green court refused to say who was entitled to distribution of the trust corpus when the trust terminates. "That will be a problem for those charged with the distribution when that time arrives." 151 So. at 272. It also expressly refused to decide whether or not the conditions imposed by Article III and Article VI were void because of being contrary to public policy.

It is contended here that conditions imposed by item III of the will are void because the same are contrary to public policy. We do not think it necessary to so hold ...

151 So. at 271 (Emphasis supplied).

Following the conclusion of the litigation in 1935, Doris signed a document acknowledging receipt of her $3,000.00 legacy under her grandfather's will. ⁶ She also executed an assignment to her two paternal aunts, Beulah and Rose, of all of her "right, title and interest in the estate of John S. Robinson, deceased, whether as an heir at law of said decedent or a legatee or distributee under the will of said decedent, and whether said right, title and interest be it real or personal property, or otherwise ..." For this assignment Doris received $12,315.48.

This very complex case was currently prosecuted by the parties over a 3 year period. The lower court entered a declaratory judgment which answered four questions:

(1) Who are the present income beneficiaries of the trust?

(2) Who will receive the income when a now-living income beneficiary dies?

(3) When all of the income beneficiaries die, who will receive the income?

(4) Who will receive the corpus of the trust when the trust terminates?

The plaintiffs appeal from the judgment and some of the defendants cross-appeal. For reasons stated herein, we affirm the lower court in part, and reverse it in part. We amend the judgment to conform to this opinion.

Issue I: Who are the current income beneficiaries of the trust?

The Green case determined that Article IV of the will created cross-remainders ⁷ to the lineal descendants of Lizette, Beulah, and Rose, in proportion to their shares of the trust income of 1/4th, 1/8th, and 1/8th respectively. Doris was thus entitled to 1/3rd of Lizette's 1/4th share because she was the sole issue of one of Lizette's three children. Doris assigned this right to receive income from the trust to Rose and Beulah. We agree with the lower court's finding that this assignment was valid and binding. ⁸ The estates of Beulah and Rose or whatever heirs are entitled thereunder shall continue to receive Doris' fractional share of the trust income during Doris' lifetime.

We also agree with the lower court that upon the death of Doris, her lineal descendants will have the right to receive this fractional share of the income. Doris never had the power to convey or assign away the rights of her issue to share in the income after her death. ⁹ The identity of Doris' issue or descendants who will receive her share of the trust income cannot now be determined. ¹⁰ Any such person must survive Doris, and must be her issue or lineal descendant. In re Rentz' Estate, 152 So.2d 480 (Fla. 3d DCA 1963), cert. denied, 156 So.2d 859 (Fla.1963); Dean v. Crews, 77 Fla. 319, 81 So. 479 (1919); 80 Am.Jur.2d Wills §§ 1409, 1415 (1975). The distribution should be per stirpes. Green v. Lewis, 113 Fla. 609, 151 So. 270 (1933); Rogers v. Atlantic Nat. Bank of Jacksonville, 371 So.2d 174 (Fla. 1st DCA 1979); § 732.611, Fla.Stat. (1979); § 732.104, Fla.Stat. (1979).

Beulah's fractional share of the trust income (1/8th plus 1/3rd of Lizette's 1/4th) should have been shared equally by her two surviving children, Rose Mae Francis Lewis Neville and William G. Lewis. Upon Rose Mae's death, the question arises as to whether her adopted children, Rose Gordon Neville and Richard Neville, are her "issue" or "lineal descendants" for purposes of sharing in the trust income. Relying on In re Hewetts Estate, 153 Fla. 137, 13 So.2d 904 (1943), and In re Levy's Estate, 141 So.2d 803 (Fla. 2d DCA 1962), the lower court held that the testator only intended persons in his blood line to inherit, and therefore adopted children would not receive the income as issue or descendants of their adopting parents. We disagree.

There is no indication in the instrument that the testator considered the possibility that grandchildren might adopt great-grandchildren in the remote future, as happened in this case. The language of the will refers only to "issue" of deceased persons and their "direct descendants." The reference in the will to "deceased persons" encompassed the testator's children and their...