IN RE ESTATE OF CHARLES N. MCCUNE, DECEASED
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This appeal concerns the validity of a testator's bequest of income interests to the widows of named male beneficiaries under a trust created by will and codicil. The Florida District Court of Appeal reversed the trial court's order invalidating these bequests, holding that they constituted valid contingent interests rather than an improper class gift and did not violate the rule against perpetuities.
The court held that the bequests to widows are valid contingent interests, not class gifts, because each widow takes individually the income previously belonging to her husband, with no aggregate sum to be divided. Additionally, these interests do not violate the rule against perpetuities because they must vest, if at all, upon the death of the named male beneficiaries (who were lives in being at the testator's death), well within the required perpetuities period.
“A class gift is a gift of an aggregate sum to a group of persons whose .exact identity and number are to be determined sometime after the execution of the will [...] Here there is no aggregate sum to be divided among the widows [...] Each widow is to take individually for life the income interest previously her husband's.”
Establishes that the widows' interests are not class gifts but rather individual contingent interests, making them valid.
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Join FLexlaw to unlock all legal intelligenceCharles N. McCune's will and codicil established Trust B, providing income to his sister and eleven named beneficiaries in designated percentages. A c…
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This appeal questions the correctness of a final order construing a will and codicil insofar as it declared invalid certain bequests of income from a trust.
The will and codicil of Charles N. Mc-Cune, deceased, provided for a trust to be known at “Trust B.” The income from the trust was to be paid to decedent’s sister and to eleven other named beneficiaries in designated percentages.
The codicil stated that should any of the male beneficiaries predecease either the testator or his sister, his widow would receive his share of the income.
During the life of the sister if any of the eleven beneficiary lines should run out, either upon the death of a named female or of a named male not leaving a widow, or the death of a widow of a named male, then the income previously paid to that beneficiary would be divided *57equally among the surviving beneficiaries. This equal division upon a beneficiary’s death applies only during the sister’s life and should not be confused with the disposition of income if a beneficiary line runs out after the death of the sister. This latter provision is discussed below.
Upon the death of the sister the 20% of the corpus from which her income portion had been drawn passed into “Trust C,” a charitable trust. The remaining corpus continued in Trust B with the eleven named beneficiaries receiving slightly altered percentages so that the total would again amount to 100% of the income. Again the codicil provided that widows of the male beneficiaries would receive the same percentage of the income that their husbands would have. Trust B was to continue until the death of the last surviving beneficiary, whether it be one of the named individuals or a widow of one of the males. Upon the death of the last survivor the corpus of Trust B, which of course amounted to 80% of its original principal, was then to pass into Trust C. Upon the death of each individual beneficiary (or his widow) his share of the incom'e would go directly to Trust C.
It should be noted that at one place the codicil did indicate that as each beneficiary died a proportionate amount of corpus would pass into Trust C.1 Other provisions of the will2 and codicil,3 as well as the trial court’s order, make it clear, however, that only the income was intended to pass and that the entire corpus would not go into Trust C until the death of the last surviving beneficiary.4
The order of the trial court found the bequests of income rights to the widows of the named male beneficiaries (of whom there were eight) to be invalid as too indefinite a class gift and as violative of the rule against perpetuities. We cannot agree.
A class gift is a gift of an aggregate sum to a group of persons whose .exact identity and number are to be determined sometime after the execution of the will. The relative amounts of the shares of the class members are in some *58definite proportion and the absolute size of the various shares depends upon the number of persons ultimately in the class. '96 C.J.S. Wills § 692. Here there is no aggregate sum to be divided among the widows. Each widow is to take individually for life the income interest previously her husband’s. The interest of any given widow is independent of that of the others. There is no class gift, but rather, following the life income interest of each of the eight male beneficiaries is a contingent income interest in his widow. Such a bequest is perfectly valid even though the identity of the remaindermen cannot yet be determined. The term widow is sufficiently precise so that upon the death of any of the named males the identity of his widow, if any, can be readily determined.
Nor do the interests given the future widows violate the rule against per-petuities. Simply stated, to be valid under the rule a contingent future interest must vest on or before the expiration of a life or lives in being plus twenty-one years plus the period of gestation. Adams v. Vidal, Fla.1952, 60 So.2d 545; Story v. First National Bank and Trust Company, 1934, 115 Fla. 436, 156 So. 101. At the time of the testator’s death all of the named male beneficiaries were lives in being. The contingent interests of their wives would vest, if at all, at the death of the husbands, well within the period allowed by the rule.
The disputed provisions of the will and codicil are therefore valid, and accordingly, the order appealed from is reversed and the cause remanded for further proceedings not inconsistent with the views expressed herein.
We have considered the other points on appeal and find them to be without merit.
Reversed and remanded.
NELSON, JAMES T., Associate Judge, concurs.
CROSS, J., concurs in conclusion.
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Citator
Cited By
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In re Est. of Charles N. McCUNE, 223 So. 2d 787 (Fla. 4th DCA 1969)…at the bequest of income rights to the widows was invalid. The appellee, acting by himself, then appealed the lower court’s order to this court, which reversed the judgment and held that the bequests were valid. In re Estate of McCune, Fla.App.1968, 214 So. 2d 56. This court, however, denied Robert McCune’s motion for attorney’s fees without giving the grounds therefor. The appellee then petitioned for attorney’s fees in the probate court on the grounds that he had benefited the estate. Section 734.01(2), F…
Authorities Cited
- Story v. First Nat'l Bank & Tr. Co., 115 Fla. 436 (Fla. 1934)
- Adams v. Vidal, 60 So.2d 545 (Fla. 1952)