Rentz' Estate, In re

• Decision Date: 30 April 1963
• Docket Number: No. 62-517,62-517
• Citation: 152 So.2d 480
• Parties: In re ESTATE of W. Carlton RENTZ, Deceased. Bobbye F. RENTZ, Executrix of the Last Will and Testament of W. Carlton Rentz, Deceased, Appellant, v. The UNBORN GRANDCHILDREN of W. Carlton RENTZ, Deceased, Appellees.
• Court: Florida District Court of Appeals

Page 480

152 So.2d 480

In re ESTATE of W. Carlton RENTZ, Deceased.

Bobbye F. RENTZ, Executrix of the Last Will and Testament of W. Carlton Rentz, Deceased, Appellant, v. The UNBORN GRANDCHILDREN of W. Carlton RENTZ, Deceased, Appellees.

No. 62-517.

District Court of Appeal of Florida, Third District.

April 30, 1963.

Hendricks & Hendricks, Miami, for appellant.

Edwin O. Simon, Miami, for appellees.

Before PEARSON, TILLMAN, C. J., and CARROLL and BABKDULL, JJ.

PER CURIAM.

This is an appeal from a final order of the County Judge's Court in and for Dade County pertaining to a probate matter. After considering the briefs and hearing oral argument, the following order and opinion of the trial judge is adopted as the opinion of this Court.

'This cause came on for hearing before the Court upon the petition of Bobbye F. Rentz as executrix of the estate of W. Carlton Rentz, deceased, wherein the executrix seeks the construction of the last will and testament of the decedent to determine the proper distribution of the assets of the estate of the decedent under the provisions of Item V of the last will and testament. At the suggestion of the petitioner, the Court appointed Honorable Edwin O. Simon, a practicing attorney of this Bar, as guardian ad litem to represent the interests of the unborn grandchildren of the decedent, whose interests, if any, might be affected by such construction. The guardian ad litem for the unborn grandchildren of the decedent has filed his response to the said petition and the matter came on for hearing and argument before the Court upon the petition and the response aforesaid.

'W. Carlton Rentz was a resident of Dade County, Florida. He died testate at Miami, Florida on February 9, 1959. He left surviving him the following heirs at law:

"Bobbye F. Rentz, his widow; Carla Adrienne Rentz, daughter, age 20; William Carl Rentz, II, son, age 18; Ralph Larry Rentz, son, age 9.'

'At the time of the execution of the last will and testament of the testator, W. Carlton Rentz, he had no grandchildren. At the time of his death there were no grandchildren. Only his widow and the foregoing named children of the decedent survived him.

'In and by his last will and testament, the testator provided for the payment of his debts and bequeathed his personal effects and personal jewelry to his two sons above named. The entire remainder or residuum of the testator's estate was disposed of in Paragraph V of his last will and testament in the following language, to wit:

"I give, devise and bequeath all the rents and profits from the rest of my estate to my wife and children, share and share alike, to take and enjoy them for life with remainder to my grandchildren, per stirpes.'

'The wife and executrix, being dissatisfied with her portion of the estate of the decedent as provided in his will, has elected to take dower. Therefore, in construing the legal effect of Paragraph V above quoted, we are concerned only with the distribution of the assets of the decedent's estate as it pertains to the interests of the children of the decedent and the unborn grandchildren. The estate of the decedent for distribution has been liquidated and is in the sum of $52,385.38.

'The executrix, being the natural mother of the children of the decedent and representing them as such, takes the position that Paragraph V of the last will and testament of the decedent should be construed to the legal effect that a life estate is created by inheritance in the three minor children aforesaid and that the reversionary estate in fee which remains in the testator until the vesting of the contingency passes to the children of the decedent by descent and distribution, they being his heirs at law who now take because of the failure of the contingency of grandchildren, there being none in existence at the time of Testator's death, and that there is, therefore, a merger of the life estate and the fee estate, and the children thus would now take absolutely in distribution.

'The guardian ad litem for the unborn grandchildren submits that the question presented is governed by §§ 689.17 and 689.14, Fla.Stat., F.S.A. providing that upon the creation of a life estate with the remainder over to the lineal descendants, the remainder shall be subject to open and to take in per stirpes lineal descendants of the life tenant who come into being during the life estate; and § 689.14 providing that the estate for life having been created in the first taker with remainder per stripes to the lineal descendants of the first taker. If the remainder fails for want of such remaindermen, it shall then vest in other remaindermen designated in the will, or, in lack of such other designation, then it shall revert to the donor or his heirs. The guardian ad litem thus contends that in light of the above statutes the remainder to the grandchildren is not defeated by the fact that no grandchildren were in being at the death of the testator. He contends that the time to ascertain whether or not there is a failure of such remaindermen is at the time of the death of the last surviving life tenant and not at the time of death of the testator.

'The contention of the Executrix that the children of the decedent take absolutely and in fee to the destruction of the interests of the grandchildren is based wholly upon the doctrine of destructibility of contingent remainders. This doctrine is in full force and effect in the State of Florida, the last decision the Supreme Court of Florida sustaining the doctrine being the case of Popp v. Bond, 158 Fla. 185, 25 So.2d 259 in which the Supreme Court of Florida said in referring to the case of Blocker v. Blocker, 103 Fla. 285, 137 So. 249:

"This holding was predicated on the rule of the common law which is in effect in this state and provides in substance that contingent remainders may be defeated by destroying or determining the particular estate upon which they depend, before the contingency happens whereby they become vested. The contingency involved here was the adverse claim of prospective children of the life tenant. Under the rule as above stated, such contingent remainder was extinguished when the title of the infant remaindermen in being was merged with that of the life tenant * * * In addition to being supported by the rule of the common law, they (the cases cited in support of said rule) are supported by good logic. It is, of course, competent for the Legislature to prescribe a different rule.'

'The doctrine of destructibility of contingent remainders which has come down to us from the feudal law of England serves almost the sole function of defeating the intent of a testator attempting to dispose of his property by will. It has been said that in the past 300 years no Court or text-writer has ever said one word in its favor. The doctrine has nothing to do with intention. It always destroys the intention,...