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COURT OF APPEAL OF FLORIDA, FOURTH
DISTRICT PETER WARBURTON,
Appellant, v. THOMAS McKEAN and JOHN W. McKEAN, as Co-Personal Representatives
of the ESTATE OF HENRY PRATT McKEAN, II, Appellees. 877 So. 2d 50; 2004 Fla. App. LEXIS
8097; 29 Fla. L. Weekly D 1411 CASE NO. 4D03-1954 June 9, 2004, Opinion Filed REVERSED BY: McKean
v. Warburton, 30 Fla.
L. Weekly S61 (Fla. September 8, 2005), NOTICE: [*1] NOT FINAL UNTIL TIME EXPIRES TO FILE
REHEARING MOTION AND, IF FILED, DISPOSED OF. SUBSEQUENT HISTORY: Rehearing denied by Warburton v. McKean, 2004 Fla. App. LEXIS
8665 (Fla. Dist. Ct. App. 4th Dist., June 9, 2004) Review granted
by McKean v. Warburton, 2004 Fla. LEXIS 2294 (Fla., Dec. 2, 2004) PRIOR HISTORY: Appeal from the Circuit Court for the Nineteenth Judicial
Circuit, Indian River County; Robert A. Hawley, Judge; L.T. Case No. P 02-0456.
Warburton v. McKean, 2004 Fla. App.
LEXIS 31 (Fla. Dist. Ct. App. 4th Dist., Jan. 7, 2004) COUNSEL: Troy B. Hafner and Brian J. Connelly of Gould, Cooksey,
Fennell, O'Neill, Marine, Carter & Hafner, P.A., Vero Beach, for appellant. Bruce D.
Barkett of Collins, Brown, Caldwell, Barkett & Garavaglia, Chartered, Vero
Beach, for appellees. JUDGES: GUNTHER, J. FARMER, C.J., and KRATHEN, DAVID H., Associate Judge,
concur. OPINIONBY: GUNTHER OPINION: ON MOTIONS FOR CLARIFICATION, REHEARING, REHEARING EN BANC,
AND CERTIFICATION GUNTHER, J. We grant the
Appellees’ Motion for Certification and the Appellant’s Motion
for Clarification and deny the Motions for Rehearing and Rehearing En Banc. We
withdraw the opinion issued on January 7, 2004 and substitute the following
opinion. Henry Pratt
McKean, II, died testate. His personal representatives filed a Petition to
Determine Homestead Status of Real Property. The trial court found that the
real property in question was homestead property and that the four
beneficiaries of the residuary [*2] clause were entitled to the property.
Warburton, another beneficiary, timely appeals the trial court’s decision
to award the homestead to the beneficiaries of the residuary clause, arguing
that the real property should have first gone to satisfy the pre-residuary
devises. We agree and reverse and remand. The decedent
was not survived by a spouse or any minor children. At his death, the only
assets owned by the decedent were his condominium which was sold for $ 141,000,
and other nominal assets valued at $ 10,000. The estate has also incurred
liabilities. The decedent’s
will provides for two cash bequests. The first cash bequest was to the decedent’s
friend, Russell Cappelen, Jr. in the amount of $ 20,000. The second cash
bequest was to the decedent’s nephew, Peter Warburton, in the amount
of $ 150,000. Other specific bequests of particular assets, which are not at
issue in this case, also were made in the will. The decedent then left
“all the rest, residue and remainder” of his property to his
four half-brothers, Thomas McKean, John W. McKean, Robert McKean, and David
McKean, in equal shares. It is undisputed that there are not enough assets in
the estate to satisfy either the estate’s [*3] liabilities or the cash bequests. In the
Personal Representative’s Petition to Determine Homestead Status of
Real Property, the personal representatives, Thomas McKean and John McKean, who
are also beneficiaries, under the residuary clause, asked the trial court to
declare the condominium to be homestead property. The petition also stated that
this condominium was validly devised to the decedent’s four
half-brothers through the residuary clause of the decedent’s will. The
trial court held a hearing in this matter and entered an uncontested order
finding that the decedent’s condominium was homestead property and
that it was validly devised in the will. The trial court also ordered the homestead
property to be sold and placed in a separate escrow account. The only issue
left for the court to determine was who was entitled to receive the homestead
property. The trial
court considered this issue in another hearing. After this hearing, the trial
court issued an order in which it determined that the four half-brothers, as
beneficiaries of the residuary clause, were now the owners of this homestead.
The trial court found that because the will did “not direct the
homestead to be sold to [*4] satisfy specific gifts in the event the
assets of the probate estate are insufficient to pay those gifts,” the
homestead was not a part of the probate estate and was not subject to division.
Therefore, the trial court stated that “the homestead vests, by operation
of law, at the time of the decedent’s death, in the names of the
beneficiaries who are devised the homestead.” In this case, the court
found these beneficiaries were the four half-brothers as the beneficiaries of
the residuary clause. The Florida
Constitution protects homesteads in this state in “three distinct
ways.” Snyder v. Davis, 699 So. 2d 999, 1001
(Fla. 1997). One protection, not at issue in this case, is that homesteads are
partially exempt from taxes. Id. (citing Art. VII, § 6, Fla. Const.).
Homesteads are also protected from forced sale by creditors and restrictions
are placed on the homestead owner when he or she attempts to “alienate
or devise the homestead property.” Id. at 1001-02. (citing Art. X, §
4(a)-(c), Fla. Const.). However, when there is not a surviving spouse or a
minor child, as in this case, the decedent’s homestead may be devised
without limitation. Art. X, § 4(c), Fla. Const (2002); §
732.401(1), Fla. Stat. (2002); City Nat’l Bank of Fla. v. Tescher, 578
So. 2d 701, 703 (Fla. 1991). We reject the
Appellees’ position that because the property was homestead property,
it must pass outside the probate estate and through the residuary clause. The
Appellees rely on Snyder v. Davis, 699 So. 2d 999 (Fla. 1997), for this
proposition. However, it is not controlling on this issue. While Snyder might
have involved some similar facts, “the sole issue [in Snyder was] . .
. whether Kelli Snyder, as the granddaughter [of the decedent], may be properly
considered an heir under the homestead provision, qualifying her for protection
from the forced sale of the homestead property when her father, the next in
line heir under statutory intestate succession is still living.” Id.
at 1000-01. Thus, Snyder did not consider the issue on appeal in this case and
cannot be considered controlling. Because the
homestead could be freely devised, it was property of the estate subject to
division in accordance with the established classifications giving some gifts
priority [*6] over others. n1 See Tescher, 578 So. 2d at 703; In re Estate of
Hill, 552 So. 2d 1133, 1133-35 (Fla. 3d DCA 1989), receded from in part on
other grounds, Bartelt v. Bartelt, 579 So. 2d 282 (Fla. 3d DCA 1991). In
determining in what order gifts made in a will are satisfied by the estate’s
assets, the particular gifts in the will must be classified as either specific,
general, or residuary. The only bequests at issue in this case are general and
residual bequests. n1 By stating that the homestead property in this case was
property of the estate, we are addressing only the particular situation
presented in this case. We are not stating that freely devisable homesteads are
subject to the claims of the decedent’s creditors or the expenses of
administering his or her estate where the homestead passes to a recipient who
is within the class of persons regarded as “heirs” under
Snyder, 699 So. 2d at 1004-05. A general
legacy is: one which may
be [*7] satisfied out of the general assets of the testator’s
estate instead of from any specific fund, thing, or things. It does not consist
of [a] gift of a particular thing or fund or part of the estate distinguished
and set apart from others of its kind and subject to precise identification. A
general legacy has a prerequisite of designation by quantity or amount. The
gift may be either of money or other personal property. Park Lake
Presbyterian Church v. Estate of Henry, 106 So. 2d 215, 217 (Fla. 1958). Here,
the $ 150,000 cash bequest to Warburton is clearly a general bequest as it is
to be paid in cash and is not a directed gift of a particular asset. Residuary
legacies are those “wherein fall all the assets of the estate after
all other legacies have been satisfied and all charges, debts and costs have
been paid.” Id. In this case, the devise of “all the rest,
residue, and remainder” of the decedent’s property to the
Appellees was a residual bequest. General bequests
are satisfied before residual bequests. § 733.805, Fla. Stat. (2002); In re Estate of Potter, 469 So. 2d 957,
959 (Fla. 4th DCA 1985). Because general [*8] bequests are satisfied before gifts in
the residuary clause, the cash bequest to Warburton should have been satisfied
before the Appellees received anything through the residuary clause. Thus, the
trial court improperly awarded the homestead property to the Appellees.
Accordingly, we reverse and remand for proceedings consistent with this opinion. In addition,
we grant the Appellees’ motion to certify the issue involved in this
case as one of great public importance. See Fla. R. App. P. 9.030(a)(2)(B)(i).
Accordingly, we certify to the Florida Supreme Court the following question as
one of great public importance: WHERE A
DECEDENT IS NOT SURVIVED BY A SPOUSE OR ANY MINOR CHILDREN, DOES DECEDENT’s
HOMESTEAD PROPERTY, WHEN NOT SPECIFICALLY DEVISED, PASS TO GENERAL DEVISEES
BEFORE RESIDUARY DEVISEES IN ACCORDANCE WITH SECTION 733.805, FLORIDA STATUTES? REVERSED and
REMANDED. FARMER, C.J.,
and KRATHEN, DAVID H., Associate Judge, concur. |