concurring in part, dissenting in part: I concur with the majority of the Court as to the inclusion in the gross estate of Eva M. Miller of an unpaid bequest in the amount of $5,317.50 under the provisions of section 2033.1 dissent from the opinion of the majority insofar as it is concluded that there should be included in the gross estate of Eva M. Miller some amount by reason of the payment of expenses of administration out of the income of the estate of Charles O. Miller. With all due respect to my colleagues who ascribe to the majority opinion, I cannot help but characterize the opinion as wrong.
The majority includes in Eva’s estate the sum of $79,869.85 under section 2036(a) (1). As best I can understand the opinion of the majority, such sum is includable because Eva had a vested right to the income generated by the assets forming the trust for her benefit under Charles O. Miller’s will. Because she permitted that income to be used to pay expenses of administration rather than have such expenses paid from the assets comprising such trust, she somehow made a transfer to the trust in which she had a life estate. The majority also includes in Eva’s estate some portion of the principal of the trust estate attributable to income receivable by the balance of the estate of Charles 0. Miller (Share A) which was used to pay administration expenses on the proposition that such income became income of the trust.
I conclude that the majority is wrong for the following reasons: (1) Eva made no transfer during her lifetime; if a transfer were made it was after her death when no life estate existed; (2) even if a transfer did occur within the meaning of section 2036 (a) (1) the property transferred, whatever it might be, was not owned 'by Eva; 'and (3) the income of the balance of the estate does not become trust income and its use cannot be the basis for taxing a part of the trust corpus in Eva’s estate. My views are expressed in the order enumerated.
Section 2036 (a) (1) requires that a transfer be made in some manner so that a life estate is retained. The majority apparently concludes that the required transfer occurred on May 10, 1965, when the Court of County Judge, Fla., approved the final accounting in Charles’ estate. Eva died on February 9, 1966, prior to the final distribution to the Share B Trust from Charles’ estate pursuant to the final accounting. An administrator was appointed for Charles’ estate who distributed the estate in January 1967. I find it difficult to see how a transfer occurred when the final accounting was approved. The purpose of section 2036(a) (1) is to tax in the estate of a life beneficiary an interest which the life beneficiary is enjoying by reason of being a life beneficiary. Here, Eva enjoyed nothing. She died before the transfer was made. A different result might be reached under a dissimilar set of facts such as a case where there is a showing of an intent to avoid the effects of section 2036(a) (1) by intentionally delaying a transfer. No such, facts exist here. The transfer failed to take place by reason of the fortuitous death of Eva, the executrix of Charles’ estate. When the transfer was effected, no life estate existed. Eva could not enjoy dividends on the corporate stocks until the stocks were transferred to the trust of which she was the life beneficiary.
I further condude that Eva made no transfer because she owned nothing to transfer. I recognize that Eva was the lifetime beneficiary of the trust created by Charles’ will, but do not agree with the majority that she had a right to the income from the assets finally comprising the assets of the trust during the course of administration of the estate.
The majority indulges in an interpretation of Charles O. Miller’s will which I find erroneous. Without setting forth all of the reasons advanced by the majority for its conclusion I shall enumerate my reasons wherein I believe the majority went astray.
I concur with the majority that the primary guidance in construing a will is to determine the testator’s intent and that should be done by making an examination of the entire instrument. I further concur that Charles’ primary objective was to provide for his widow, Eva, and that he intended to take advantage of the estate tax marital deduction. I feel that the result of the majority opinion is contrary to the int-ent of Charles because it is contrary to the operation of a will which employs the use of the marital deduction coupled with a life estate in the surviving spouse.
The will of Charles O. Miller is an articulate, well-prepared instrument containing standard provisions designed to gain the maximum benefit of the estate tax marital deduction. A bequest to satisfy the requirements of the estate tax marital deduction together with a life estate in the remainder is a useful and widespread estate planning device. As any estate planner would explain under the facts of this case, the primary objective insofar as minimizing taxes is concerned, is to give to the surviving spouse the exact amount which will be deductible on the Federal estate tax return as the marital deduction and to give to the surviving spouse an interest in the remainder of the estate in such a manner that nothing will be taxable in her estate when she dies. This is often accomplished by means of a trust having the surviving spouse as life tenant and remainder unalterably to others, thus avoiding a second tax in the estate of the surviving spouse.
The holding of the majority thwarts the obvious intent of Charles O. Miller in the manner he wished his estate to be distributed.
The will expressly provided that the expenses of administration be paid out of Share B as defined in the will (the share going to form the trust). I don’t feel that this prohibits the executors from paying such expenses out of income generated by the assets of the estate during administration. The majority of the Court reaches the contrary result by finding that Eva had a vested right to the income of the trust. I cannot conclude this. The trust did not come into existence until the estate was distributed because it was created out of the residue of the estate as provided in paragraph Third of the will. The powers and duties of the trustees are immaterial during the administration of the estate. The majority comments that Charles O. Miller could have provided in his will that his executrix pay the expenses of administration out of the income of the estate. Such a provision would be folly. When a will is executed, a testator has no way of knowing what assets he may possess at death, what their value will be, or what income they will produce. Only his executor can best judge whether it is wiser to use cash income to pay expenses or to sell assets. In the usual situation if an estate produces adequate income to pay the expenses of administration the executor is delighted so he won’t have to assume the responsibility for selling assets of the estate. I, therefore, strongly object to the conclusion of the majority that “We can safely assume that the testator, at the time he executed his will, anticipated that there would be an ample amount to fund the Share B Trust without using income earned during administration for the payment of expenses.” Such a statement is no more than mere speculation and, I believe, an invalid assumption.
The majority finds that Eva’s interest in the trust vested when Charles died but it was not funded until a later date. The assets comprising the trust could not even be identified until the estate was distributed.
Paragraphs (1) and (2) of Florida Statutes Annotated section 733.01 (1967) are as follows:
(1) The personal representative shall take possession of the personal property wheresoever situate of a person who hereafter dies a resident of the state, and shall take possession of the real estate (except homestead) within the state of such a deceased person, and the rents, income, issues and profits therefrom whether accruing before or after the death of the decedent, and of the proceeds arising from the sale, lease or mortgage of the same or any part thereof. * * *. All such property and the rents, income, issues and profits therefrom shall be assets in the hands of the personal representative for the payment of legacies, debts, family allowance, estate and inheritance tastes, claims, charges and expenses of administration, and to enforce contribution and to equalize advancement and for distribution.
(2) The net income earned by the assets of the estate after the death of the testator, and prior to the distribution of the estate, and not used for the purposes set forth in subsection (1) above shall in the absence of specific provision in the will to the contrary be paid and applied as follows:
[Emphasis added.]
From a cursory examination of the foregoing it is obvious that the Florida Statutes contemplate that during administration the income of the estate will be used to pay expenses of administration and any income not so used will go to the appropriate beneficiary, which is precisely what occurred here.
As a general rule, a residuary bequest of personal property subject to payment of the debts of the estate, does not vest in the beneficiary until administration of the estate has been completed. See Estate of Francis S. Tilyou, 56 T.C. 1362 (1971). However, under the laws of the State of Florida, the income of such a bequest during the period of administration vests in the beneficiary unless the testator provides otherwise. Fla. Stat. Ann. sec. 731.21 (1967).1 In the case before us, the decedent’s will specifically directed that “there shall first be payable any and all expenses of my estate” out of the testamentary trust which was designated “Share ‘B’.” A direction first to pay the expenses defers vesting until that condition, i.e., the payment of expenses, is met. In re Estate of Horner, 207 So. 2d 730 (Fla. App. 1968).
In In re Estate of Horner, supra, the will in question provided for a testamentary trust with instructions that quarterly payments of income to the beneficiary were to commence after payment of the expenses of administration. The beneficiary of the trust died during the period of administration. His widow brought suit on his behalf for the income which had accumulated during the period of administration. In denying her claim, the court said:
At the time of Fred’s death, Jed’s executor had not yet made payment of the debts, expenses of administration, and estate taxes. Thus, the trust estate had not been funded or come into being at the time of Fred’s death, and consequently, no payment of costs and expenses for the trust estate had been made either. Fred, therefore, was never entitled to a distribution of income. Parenthetically, no argument is made of any undue delay on the part of the executor in making payment of the debts, expenses of administration, or estate taxes.
Had the decedent desired to provide otherwise in his estate, he could have provided that any income earned by the estate, or by the residuary trust estate, should be paid to his brother, Fred G. Horner, absolutely, or without any conditions attached thereto. This was the case of Johnson v. Burleson, Fla. 1952, 61 So. 2d 170, wherein the decedent provided that the executors should hold in trust the entire estate and pay the income to the decedent’s wife exclusively, without let, hindrance or demand on the part of any persons whatsoever.
* * * * * * *
Inasmuch as there was never any payment oí debts, taxes, or administration of the estate, and there was never any payment of the costs or expenses of the administration of tiie trust estate, there was never any “net income” from the residuary trust estate.
Nor are the findings by the majority of the testator’s intent to favor his spouse in any way inconsistent with the applicability of this rule. On the contrary, to charge the spouse with income which was to pay the expenses of administration would be contrary to such intent.
Because Charles’ will provided that the expenses of administration would be paid out of Share B and because I conclude that Charles did not intend to cause a vesting of the income from the Share B Trust in Eva during administration, I believe the following cases are distinguishable factually: Risolia v. First National Bank of Miami, 224 So. 2d 714 (Fla. App. 1969), certiorari denied 234 So. 2d 119 (Fla. 1969); In re Will of Bowen, 240 So. 2d 318 (Fla. App. 1970); In re Merrill's Will, 11 Fla. Supp. 48 (County Judge’s Ct. 1957); In re Kent's Estate, 23 Fla. Supp. 133 (County Judge’s Ct. 1964).
The majority also includes in Eva’s estate some portion of the trust estate attributable to the income generated by Share A and used to pay the expenses of administration of Charles’ estate.
The majority first seems to say that if the bequest of Share A to Eva is a general bequest then Eva had a right to it as a residuary legatee. This is contrary to Fla. Stat. Ann. sec. 733.01(2) (b), quoted above, which gives to general legatees legal interest on their respective legacies as fixed by the county judge.
The majority then hypothetically observes that if she had no such right to the income then the income would be payable to the trustees of the Share B Trust to be distributed by the trustees as income and to the extent used to pay administration expenses it would be taxable in Eva’s estate. I fail to see how such income from Share A becomes Share B. Such income instead becomes part of the residue of the estate and can be used to pay expenses of administration. Charles’ will did not prohibit income generated by Share A to be used for payment of administration expenses. His will only prohibited Share A itself from being used. This is for the obvious reason that payment of such expenses from Share A would reduce the marital deduction but payment of such expenses from the income of Share A has no effect on the amount of the marital deductions.
The majority, because it found the “transfer” includable in Eva’s estate under the provisions of section 2036 (a) (1) found it unnecessary to consider respondent’s alternative arguments under sections 2036(a) (2) and 2038. The reasons set forth above for not including the “transfer” under section 2036(a)(1) apply with equal force to sections 2036(a) (2) and 2038. My conclusion is that the payment of the expenses of administration out of any portion of the income of the estate of Charles O. Miller cannot result in inclusion in the Estate of Eva Miller, deceased, of any portion of the corpus of Trust B established under the will of Charles O. Miller.
DRENNEN, Hoyt, and Quealy, //., agree with this opinion.Fla. Stat. Ann. sec. 731.21 (1967) provides :
The death of the testator Is the event which vests the right to legacies or devises unless the testator in his will has provided that some other event must happen before a legacy or devise shall vest.