Will of Martell, In re, 83-1989

• Citation: 457 So.2d 1064
• Decision Date: 29 June 1984
• Docket Number: No. 83-1989,83-1989
• Parties: In re Trust Under WILL OF Louis J. MARTELL, Deceased.
• Court: Florida District Court of Appeals

Page 1064

457 So.2d 1064

In re Trust Under WILL OF Louis J. MARTELL, Deceased.

No. 83-1989.

District Court of Appeal of Florida,

Second District.

June 29, 1984.

Rehearing Denied Aug. 3, 1984.

David A. Vukelja of Coble, McKinnon, Rothert, Barkin, Vukelja & Godbee, P.A., Daytona Beach, for appellants.

Wm. Fletcher Belcher, St. Petersburg, and William Griffin of Law Offices of Stone & Griffin, St. Petersburg, for appellee.

GRIMES, Judge.

This case examines the law applicable in construing the terms and provisions controlling the ultimate determination of trust beneficiaries under a testamentary trust.

Louis J. Martell executed his will on July 31, 1970. Article 4 of the will created a testamentary trust which named eight beneficiaries, including Arthur J. Landry. The trust generally provided for the payment of income to each beneficiary until the youngest attained age forty, at which time the remaining assets of the trust were to be distributed in equal shares to the eight beneficiaries and the trust was to terminate. The trust also contained the following provision:

In the event any of the before named remaindermen shall not be living at the time of the distribution of the trust assets, his or her share shall pass to his or her issue per stirpes. Should any of the before named remaindermen not be living at the time of distribution and not have issue surviving him or her, his or her share shall be divided proportionately among the remaindermen then surviving and those remaindermen deceased with issue living at that time.

Louis J. Martell died on November 20, 1971. At the time of his death Arthur J. Landry was alive as were his three children, Jeanne Thompson McEwen, Louis Landry, and Patricia Bruback. Jeanne Thompson McEwen had a minor child, born on October 19, 1970, named Robert Phillip McEwen, II. This child was "adopted away" on December 28, 1971, and his name was changed to Brice Robert Bishop. Jeanne Thompson McEwen died on February 5, 1974.

Arthur J. Landry died on April 25, 1979. On May 7, 1981, the youngest of the named trust beneficiaries attained age forty, resulting in the termination of the trust. As of that date, Arthur J. Landry was survived by his two remaining children, Louis Landry and Patricia Bruback, and his adopted away grandson, Brice Robert Bishop.

The Royal Trust Bank of Florida, N.A., as trustee, filed a petition in the circuit court for determination of remainder beneficiary. The issue presented was whether Brice Robert Bishop was entitled to a one-third interest of the one-eighth share of the trust estate to be distributed to the issue of Arthur J. Landry, per stirpes. The trial court, after hearing, determined there was no factual dispute and held that Brice Robert Bishop, Louis Landry, and Patricia Bruback were each entitled to a one-third interest of the one-eighth share of the trust estate. Louis Landry and Patricia Bruback prosecute this appeal.

At the time of the execution of the will, at the time of the creation of the testamentary trust, and at the time of the adoption of Brice Robert Bishop, an adopted away child inherited from his natural kindred. § 63.151 and § 731.30, Fla.Stat. (1971). In 1973, however, the legislature changed the law relating to the effect of adoption. See Ch. 73-159, § 17, Laws of Fla. Under the laws in effect at the time of the termination of the trust, an adopted away child did not inherit from his natural kindred. Section 63.172, Florida Statutes (1979), provides in pertinent part:

(1) A judgment of adoption, whether entered by a court of this state, another state, or of any other place, has the following effect:

....

(b) It terminates all legal relationships between the adopted person and his relatives, including his natural parents, except a natural parent who is a petitioner or who is married to a petitioner, so that the adopted person thereafter is a stranger to his former relatives for all purposes, including inheritance and the interpretation or construction of documents, statutes, and instruments, whether executed before or after entry of the adoption judgment, that do not expressly include the adopted person by name or by some designation not based on a parent and child or blood relationship. (Emphasis supplied.)

Therefore, in determining whether Brice Robert Bishop was entitled to share in the proceeds of the trust estate, we must first decide the date which controls the application of the law.

Generally, courts look to the law in effect when a testamentary trust terminates rather than the law at the time the will was written or when the testator died to determine whether an individual comes within a class of remaindermen designated by will to take at the expiration of an intermediate or life estate. Haskell v. Wilmington Trust Co., 304 A.2d 53 (Del.1973); Breckinridge v. Skillman's Trustee, 330 S.W.2d 726 (Ky.1959); Commerce Trust Co. v. Weed, 318 S.W.2d 289 (Mo.1958); In Re Sollid, 32 Wash.App. 349, 647 P.2d 1033 (1982); Wheeling Dollar Savings & Trust Co. v. Hanes, 160 W.Va. 711, 237 S.E.2d 499 (1977); Annot., 139 A.L.R. 1111-1117 (1947); Annot., 79 A.L.R.2d 1453 (1961); 80 Am.Jur.2d Wills § 1422 (1975); 96 C.J.S. Wills § 695(5)e (1957). See also Lewis v. Green, 389 So.2d 235 (Fla. 5th DCA 1980), petition for review denied, 397 So.2d 778 (Fla.1981), where the court in dicta stated that the law in effect when the trust terminates will control the ultimate determination of the trust beneficiaries. Contra Warner v. First National Bank of Atlanta, 242 Ga. 661, 251 S.E.2d 511 (1978); Wallace v. Noland, 246 Ill. 535, 92 N.E. 956 (1910).

Notwithstanding, our first inclination was to select the date of Louis Martell's death as controlling because this was when the testamentary trust became effective. Sternberg v. Florida National Bank of Jacksonville, 114 Fla. 580, 154 So. 844 (1934). Though he may not have had any reason to consider it, the testator could be presumed to know that as of that date an adopted away child was still an heir of his natural parents and therefore a potential beneficiary under the trust. Yet, the testator must also be presumed to know that the law concerning inheritance by adopted children was subject to change, and he selected the date when the youngest named beneficiary reached forty years of age as the date upon which the beneficiaries were to be determined. By that time the legislature had decided as a matter of public policy that the inheritance of those who were natural heirs should not be diminished at the expense of one who is also entitled to inherit from his adoptive parents. Therefore, we hold that the controlling date for purposes of selecting the applicable law was May 7, 1981, the date upon which the trust terminated and the beneficiaries were determined.

Pursuant to section 63.172(1)(b), Florida Statutes (1979), the testator could have insured the inclusion of an adopted away child by making an appropriate reference in the provisions of the trust. Having failed to do so, the statute must be applied as written and Brice Robert Bishop is a stranger to his former relatives for all purposes including inheritance. Thus, he cannot inherit from the trust as a lineal descendant or issue of his natural grandfather, Arthur J. Landry.

The rationale set forth in Lewis v. Green, 389 So.2d 235 (Fla. 5th DCA 1980), petition for review denied, 397 So.2d 778 (Fla.1981), in support of an adopted child's participation in the probate estate of his adopted parents is equally applicable in denying Brice Robert Bishop's participation in the subject testamentary trust:

The better view is that adopted children are the issue and the lineal descendants of their adopting parents for the purposes of inheriting under a will or trust instrument. In re Clancy's Estate, 159 Cal.App.2d 143, 323 P.2d 763 (2d DCA 1958); Merson v. Wood, 202 Va. 485, 117 S.E.2d 661 (1961); In re Will of Henderson, 64 Misc.2d 280, 314 N.Y.S.2d 766 (N.Y. Surrogate 1970); In re Thompson, 53 N.J. 276, 250 A.2d 393 (1969); In re Trusts Created Under Will of Adler, 30 Wis.2d 250, 140 N.W.2d 219 (1966). Courts look to the law of the applicable state at the time of termination of the prior life estate rather than the law at the time the will was written, or when the testator died, to determine the testator's intent to include or exclude adopted children. In re Estate of Moulton, 62 Cal.App.2d 1, 133 Cal.Rptr. 500 (4th DCA 1976). The explanation offered is that the testator must have known the laws of descent and inheritance would change over the duration of a long term trust.

In Florida, the legislature substantially revised the laws concerning adoption in current years. An adopted child is no longer the "heir" or "descendant" of the natural parent. The adopted child is transformed by legislative fiat to become the heir, issue and descendant of the adopting parent as well as the other members of the adopting family.

Id. at 241.

Moreover, we find section 63.172, Florida Statutes (1979), is not unconstitutional as applied to the instant case. A statute is not unconstitutionally retrospective in its operation unless it impairs a substantive, vested right. A substantive, vested right is an immediate right of present enjoyment, or a present fixed right...