Stewart's Estate v. Caldwell

• Decision Date: 18 October 1972
• Docket Number: No. 40839,40839
• Citation: 271 So.2d 754
• Parties: In re ESTATE of Ruth Y. STEWART, Deceased, Petitioner, v. Manley P. CALDWELL, as Administrator C.T.A. of the Estate of Ruth Y. Stewart, Respondent.
• Court: Florida Supreme Court

Page 754

271 So.2d 754

In re ESTATE of Ruth Y. STEWART, Deceased, Petitioner, v. Manley P. CALDWELL, as Administrator C.T.A. of the Estate of Ruth Y. Stewart, Respondent.

No. 40839.

Supreme Court of Florida.

Oct. 18, 1972.

Rehearing Denied Feb. 7, 1973.

Joseph D. Farish, Jr., of Farish & Farish, West Palm Beach, and Ryan, Taylor, Booker & Law, North Palm Beach, for petitioner.

Fletcher G. Rush, and W. Scott Gabrielson of Rush, Marshall, Bergstrom & Robison, Orlando, Manley P. Caldwell, Jr., of Caldwell, Pacetti, Barrow & Salisbury, Palm Beach, Irwin L. Langbein, and John A. Gentry, III, of Moyle, Gentry, Jones & Flanigan, West Palm Beach, for respondent.

PER CURIAM.

This cause is before us on petition for writ of certiorari to review the decision of the District Court of Appeal, Fourth District, reported at 242 So.2d 781. The decision sought to be reviewed conflicts with King v. Palm Beach Bank & Trust Co., ¹ giving this Court jurisdiction under § 4, Article V, of the Florida Constitution F.S.A.

Petitioner, Thomas Young, brought suit in the County Judge's Court, Palm Beach County, for construction and revocation of probate of a portion of the Last Will and Testament of his sister, Ruth Y. Stewart. The fifth paragraph of the Will, the portion in question, provides as follows:

'FIFTH: All the rest, residue and remainder of my estate, both real, personal and mixed, of every nature and wheresoever situate of which I may die seized or possessed, including without limitation all property acquired by me or to which I may become entitled after the execution of this my will and all property herein attempted to be disposed of, the disposition whereof by reason of lapse or other acts, shall fail to take effect, and including the property of which I have the power of appointment under the Will of my husband, FREDERICK M. STEWART, deceased, I give, devise and bequeath to my Trustees hereinafter named, IN TRUST NEVERTHELESS, for the following uses and purposes:

'(a) My Trustees shall receive, hold, manage, invest, reinvest and administer the same and collect the income thereof and pay the same to my brother THOMAS YOUNG, in monthly or quarterly installments as he may elect during the term of his life;

'(b) In the event that the amount of income payable to my brother, THOMAS YOUNG, from this trust shall be less than TWENTY THOUSAND DOLLARS ($20,000.00) in any one year, calculated from the date of my death, then I authorize and direct my Trustees, upon the written request of my said brother, to invade and use so much of the principal of said trust fund as may be necessary to make up the difference between the sum of TWENTY THOUSAND DOLLARS ($20,000.00) and the amount of the income payable to him from said trust fund.

'(c) I further authorize and empower my Trustees to invade and use the principal of said trust and to pay over to my brother, THOMAS YOUNG, such additional amounts and at such times, as they, in their sole and exclusive discretion and judgment, may deem necessary or advisable to meet any emergency which may arise, such as unusual medical or other expenses incurred by my brother.

'(d) Any payments of principal which may be made pursuant to subparagraphs (b) and (c) hereof, shall be absolute and free from all trusts, and upon making such payments my Trustees shall be fully released and discharged from all further liability or accountability therefor.

'(e) Upon the death of my brother, the said trust shall terminate, and I direct and empower my Trustees thereupon to devise, pay over and distribute the principal of said trust as then constituted, together with any accumulated or accrued income, among such of my relatives as may then be surviving and among such charitable, educational or religious corporations, and in such proportions, as my friend and attorney, WILLIAM A. SHEA, shall, in his sole and exclusive discretion and judgment, fix, designate and determine.' (Emphasis supplied.)

The testatrix died March 1, 1968, and her will was admitted to probate on March 20, 1968. Thereafter, Young petitioned for construction and revocation of a portion of the Will, renouncing any disposition and bequest made to him under the Will and seeking to have the Fifth paragraph revoked and declared invalid. On December 19, 1968, William A. Shea, holder of the power of appointment designated in the Fifth paragraph of the Will, filed a revocable designation of those relatives and corporations which were to take the principal of the Trust at its termination.

The Probate Judge entered an order holding paragraph Fifth (e) null and void as violating the rule against perpetuities and further holding that the power of appointment given to Shea could not be exercised until the death of the brother of the testatrix. The trial court found it unnecessary to decide the question of whether the power of appointment was impossible of performance because of ill-defined, vague and ambiguous classes of recipients described therein.

On appeal the District Court correctly held that the power of appointment did not violate the rule against perpetuities. ² However, the District Court erred in holding that the purported exercise of the power of appointment by Shea prior to the death of the testatrix' brother was valid. This holding creates conflict with the rule of King v. Palm Beach Bank & Trust Co., supra, wherein it was held: ³

'In the case of a naked power not coupled with an interest, every prerequisite to the exercise of that power should precede it.'

The power of appointment given Shea under the...