SHRINERS HOSPITALS FOR CRIPPLED CHILDREN, Petitioner, v. Lorraine E. ZRILLIC, Respondent. ESTATE OF Lorraine E. ROMANS, Petitioner, v. Lorraine E. ZRILLIC, Respondent.
Nos. 73639, 73640
Supreme Court of Florida
May 31, 1990
563 So. 2d 64
BARKETT, Justice.
William S. Belcher of Belcher & Fleece, P.A., and Joseph W. Fleece, III, St. Petersburg, for Shriners Hospitals for Crippled Children.
Peggy Tribbett Gehl and Linda Chambliss, Ft. Lauderdale, and Joseph C. Jacobs of Ervin, Varn, Jacobs, Odom & Ervin, Tallahassee, for Lorraine E. Zrillic.
BARKETT, Justice.
We have consolidated for review two cases that arose out of Zrillic v. Estate of Romans, 535 So. 2d 294 (Fla. 5th DCA 1988). One presents an issue concerning the district court‘s express declaration of validity of
I.
Lorraine E. Romans, a resident of Seminole County, Florida, executed her Last Will and Testament on May 5, 1986. After suffering from a lingering illness, she died on July 19, 1986, survived by her daughter, Lorraine E. Zrillic. The testator‘s will, admitted to probate on December 19, 1986, included the following provisions:
EIGHTH: I give and bequeath several sealed boxes of family antique dishes and figurines specifically designated, to my daughter, LORRAINE E. ZRILLIC, 16531 Blatt Blvd., No. 204, Ft. Lauderdale, Florida. I have intentionally limited her inheritance since I have contributed substantially during my life for her education and subsequent monies I have been required to expend primarily due to her promiscuous type of life. My daughter, LORRAINE E. ZRILLIC has not shown or indicated the slightest affection or gratitude to me for at least five years preceeding [sic] the date of this Will. My executor will know the appraised value of these antiques for estate tax purposes....
... .
ELEVENTH: All the rest residue and remainder of my estate, of whatever nature and wherever situated of which I may be siezed [sic] or possessed or to which I may be entitled at the time of my death, including lapsed legacies and any property over which I have a power of appointment I give, devise and bequeath as a charitable donation to the SHRINERS HOSPITAL[S] for CRIPPLED CHILDREN... .
Pursuant to
The circuit court ruled that Zrillic did have standing, but that
The Fifth District Court of Appeal affirmed in part and reversed in part, finding that Zrillic had standing, but that
We are presented with two issues. The threshold question is whether a lineal descendant, whose legacy was expressly limited by the decedent‘s will, had standing to set aside a charitable devise in that will. The second question concerns the constitutionality of
II.
Zrillic had to satisfy two elements to meet the standing requirement of
The general rule of construction is that the intent of the testator prevails.
Now we move on to discuss the constitutionality of
III.
Property rights are protected by
SECTION 2. Basic rights. — All natural persons are equal before the law and have inalienable rights, among which are the right to enjoy and defend life and liberty, to pursue happiness, to be rewarded for industry, and to acquire, possess and protect property; except that the ownership, inheritance, disposition and possession of real property by aliens ineligible for citizenship may be
regulated or prohibited by law. No person shall be deprived of any right because of race, religion or physical handicap.
(Emphasis added.) These property rights are woven into the fabric of Florida history. See Declaration of Rights, §§ 1, 18, Fla. Const. (1885) (as amended prior to the 1968 revision); Declaration of Rights, §§ 1, 17, Fla. Const. (1868); art. I, § 1, Fla. Const. (1865); art. I, § 1, Fla. Const. (1861); art. I, § 1, Fla. Const. (1838).
To interpret the extent of property rights under the constitution, we must make a common sense reading of the plain and ordinary meaning of the language to carry out the intent of the framers as applied to the context of our times. See In re Advisory Opinion to the Governor Request of June 29, 1979, 374 So. 2d 959, 964 (Fla. 1979). It is commonly understood that acquire means to gain, obtain, receive, or to come into possession or ownership of property, see, e.g., I The Oxford English Dictionary 115 (2d ed. 1989), and it [i]ncludes taking by devise. Black‘s Law Dictionary 23 (5th ed. 1979) (emphasis supplied). Possess commonly means to have, hold, own, or control anything which may be the subject of property, for one‘s own use and enjoyment, either as owner or as the proprietor of a qualified right in it. Id. at 1046-47; see also, e.g., XII The Oxford English Dictionary 171-72 (2d ed. 1989). Protect generally means to guard, preserve and keep safe from harm, encroachment, injury, alteration, damage, or loss. See, e.g., XII The Oxford English Dictionary 677-78 (2d ed. 1989); American Heritage Dictionary 995 (2d College ed. 1985). Thus, the phrase acquire, possess and protect property in article I, section 2, includes the incidents of property ownership: the [c]ollection of rights to use and enjoy property, including [the] right to transmit it to others. Black‘s Law Dictionary 997 (5th ed. 1979) (emphasis supplied).4
This common sense reading of the language in
We are aware that some decisions in Florida and elsewhere vary from this conclusion, relying upon an old legal distinction between property rights and testamentary rights. See generally 1 W. Bowe & D. Parker, Page on the Law of Wills chs. 1-3 (rev. ed. 1960). The distinction those courts have drawn is that property rights are inalienable rights grounded in natural law, whereas freedom of testation is purely a creation of statute that did not exist at common law. The genesis of that distinction lies in long-abandoned feudal notions of property. In feudal England, only the king owned real property, which represented the bulk of wealth, and only the king could decide who could exercise real property rights when a person died. During the decline of feudalism, Parliament enacted the Statute of Wills to grant citizens the lawful right to devise real property, qualified by regulations necessary to preserve order. Hence, devising property came to be regarded as a right created by statute, not a property right inherent in the common law of England. See generally 1 W. Bowe & D. Parker, Page on the Law of Wills chs. 1-3 (rev. ed.
That analysis is inapplicable in our society where feudalism never existed and where property rights rest on an express constitutional foundation that is distinguishable from the common law roots of feudal England. Yet all too often courts have failed to thoroughly analyze the distinction, instead giving unquestioning allegiance to an antiquated way of thinking. See Taylor v. Payne, 154 Fla. 359, 362-63, 17 So. 2d 615, 617, appeal dismissed, 323 U.S. 666, 65 S. Ct. 49, 89 L. Ed. 541 (1944); see also In re Estate of Greenberg, 390 So. 2d 40, 43 (Fla. 1980) (following Taylor), appeal dismissed, 450 U.S. 961, 101 S. Ct. 1475, 67 L. Ed. 2d 610 (1981); In re Estate of Blankenship, 122 So. 2d 466, 469 (Fla. 1960) (following Taylor); Arthritis Foundation v. Beisse, 456 So. 2d 954 (Fla. 4th DCA 1984) (following Taylor), review denied, 467 So. 2d 999 (Fla. 1985). The plain meaning of the language of the Florida Constitution compels us to conclude that the people chose not to blindly adhere to the old English distinction, and instead came to regard testamentary disposition of property as a specifically expressed constitutional property right. Accord In re Estate of Beale, 15 Wis. 2d 546, 552, 113 N.W.2d 380, 383 (1962) (the right to make a will is a constitutional right); Nunnemacher v. State, 129 Wis. 190, 196, 108 N.W. 627, 628 (1906) (the right to pass property by will or inheritance is a natural right under the state constitution and cannot be wholly taken away or substantially impaired by the legislature).
Of course, even constitutionally protected property rights are not absolute, and are held subject to the fair exercise of the power inherent in the State to promote the general welfare of the people through regulations that are reasonably necessary to secure the health, safety, good order, [and] general welfare. Golden v. McCarty, 337 So. 2d 388, 390 (Fla. 1976); see also Palm Beach Mobile Homes, Inc. v. Strong, 300 So. 2d 881, 884 (1974) (the degree of a constitutionally protected property right must be determined in the light of social and economic conditions which prevail at a given time); cf. Department of Agric. & Consumer Servs. v. Mid-Florida Growers, Inc., 521 So. 2d 101, 103 (Fla.) (a property regulation may be reasonable but still may require the state to compensate a landowner), cert. denied, 488 U.S. 870, 109 S. Ct. 180, 102 L. Ed. 2d 149 (1988).
The question we must resolve is whether
Over time, society‘s attitude has changed to the point where charitable gifts, devises and trusts now are favored and will be held valid whenever possible. 79 Am.Jur.2d Wills § 176 (1975). See also 4A Powell on Real Property para. 577 (1986). As society‘s attitude changed, so did the rationale employed to support the few
Although it may be reasonable for the legislature to protect family members who are dependent or in financial need, it is unreasonable to presume, as the statute seems to do, that all lineal descendants are dependents, in need, or are not otherwise provided for. Florida law is replete with protections for surviving family members who may have been dependent on the testator. For example, the Florida Constitution expressly provides protection in the form of homestead exemptions for real and personal property,
No similar protections are assured by
Neither the ancient purpose nor the modern justification underlying the restriction on charitable devises is well served by
IV.
We also find that
It is well settled under federal and Florida law that all similarly situated persons are equal before the law. McLaughlin v. Florida, 379 U.S. 184, 85 S. Ct. 283, 13 L. Ed. 2d 222 (1964); Haber v. State, 396 So. 2d 707 (Fla. 1981); Soverino v. State, 356 So. 2d 269 (Fla. 1978). Moreover, without exception, all statutory classifications that treat one person or group differently than others must appear to be based at a minimum on a rational distinction having a just and reasonable relation to a legitimate state objective. In re Greenberg‘s Estate, 390 So. 2d 40 (Fla. 1980), appeal dismissed sub nom. Pincus v. Estate of Greenberg, 450 U.S. 961, 101 S. Ct. 1475, 67 L. Ed. 2d 610 (1981); Graham v. Ramani, 383 So. 2d 634 (Fla. 1980); Department of Health & Rehabilitative Services v. Heffler, 382 So. 2d 301 (Fla. 1980).
Palm Harbor Special Fire Control Dist. v. Kelly, 516 So. 2d 249, 251 (Fla. 1987). Equal protection analysis requires that classifications be neither too narrow nor
The classification also is overinclusive because it voids many intentional bequests by testators who were not impermissibly influenced or who do not have immediate family members in need of protection. Estate of French, 365 A.2d at 624. Accord In re Estate of Cavill, 459 Pa. 411, 416, 329 A.2d 503, 506 (1974). As our sister court in Ohio said of its analogous statute:
Unfortunately, a large number of cases falling within the scope of R.C. 2107.06 involve the estates of testators who did not execute their last will under the belief that their death was near. Furthermore, out of the remaining cases impacted by the statute in which the testator did believe that he was near death, it is reasonable to assume that few involved bequests that were based upon unsound judgment or the result of undue influence by a governmental, benevolent, religious, educational or charitable beneficiary.
Shriners’ Hosp. for Crippled Children v. Hester, 23 Ohio St. 3d 198, 201, 492 N.E.2d 153, 156 (1986) (emphasis in original).
There is no rational distinction to automatically void a devise upon request when the testator survives the execution of the will by five months and twenty-eight days, but not when the testator survives a few days longer. Accord In re Estate of Cavill, 459 Pa. at 414-18, 329 A.2d at 505-06. Nor is it rational to apply the statute in cases where the testator dies suddenly due to an accident during the six-month period after making the charitable bequest.
The effect of
For the aforementioned reasons, we overrule Taylor, approve the decision of the court below as to standing, but quash the decision as to its discussion of the
It is so ordered.
EHRLICH, C.J., and SHAW and KOGAN, JJ., concur.
GRIMES, J., concurs in result with an opinion.
McDONALD, J., concurs in result and dissents in part with an opinion, in which OVERTON, J., concurs.
SHRINERS HOSPITALS FOR CRIPPLED CHILDREN, Petitioner, v. Lorraine E. ZRILLIC, Respondent. ESTATE OF Lorraine E. ROMANS, Petitioner, v. Lorraine E. ZRILLIC, Respondent.
Nos. 73639, 73640
Supreme Court of Florida
May 31, 1990
563 So. 2d 64
GRIMES, Justice, concurring in result.
I agree that
I cannot agree with section III of the majority opinion which holds that
SHRINERS HOSPITALS FOR CRIPPLED CHILDREN, Petitioner, v. Lorraine E. ZRILLIC, Respondent. ESTATE OF Lorraine E. ROMANS, Petitioner, v. Lorraine E. ZRILLIC, Respondent.
Nos. 73639, 73640
Supreme Court of Florida
May 31, 1990
563 So. 2d 64
McDONALD, Justice, concurring in result, dissenting in part.
I concur with the result reached in the majority opinion, but for entirely different reasons. For the reasons hereinafter stated, I would sustain the constitutionality of
To the extent possible we should give meaning to
I would adhere to the holding of Taylor v. Payne, 154 Fla. 359, 17 So. 2d 615, appeal dismissed, 323 U.S. 666, 65 S. Ct. 49, 89 L. Ed. 541 (1944), and sustain the constitutionality of
Nowhere in the Federal Constitution is there any attempt to treat of the matter of disposition of property by will, no reference being made to the subject of testamentary alienation of property, either directly or by implication. And except as the power to will property has been limited indirectly by Article X of the Constitution of Florida, which inhibits the alienation of homestead property by will where the owner thereof has children in esse, no effort at constitutional regulation of the subject has been made by the people of the State of Florida. Therefore, the right of testamentary disposition of property does not emanate from the organic law, as contended by counsel, but is a creature of the law derived solely from statute without constitutional limitation. Accordingly, the right is at all times subject to regulation and control by the legislative authority which creates it. The authority which confers the right may impose conditions thereon, such as limiting disposition to a particular class or fixing the time which must ensue subsequent to the execution of the will before gifts to a particular class shall be deemed valid; or the right to dispose of property by will may be taken away altogether, if deemed necessary, without private or constitutional rights of the citizen being thereby violated.
Id. at 362-63, 17 So. 2d at 617. It further noted:
Our statute is not a mortmain act. The Legislature never intended by the enactment of the statute to place any restriction upon the right of benevolent, charitable, educational, or religious institutions to take and hold property; but only to place a limitation upon the right of testators to dispose of their property to such institutions when the conditions that are detailed in the statute exist. The purpose of the statute is clear: it is to protect the widow and children from improvident gifts made to their neglect by the testator; the design of the statute being obviously to prevent testators who may be laboring under the apprehension of impending death from disposing of their estates to the exclusion of those who are, or should be, the natural objects of the testator‘s bounty.
Whether the legislative philosophy behind such enactment is sound may be debatable. But the power of the legislature to enact such a statute may not be doubted.
Id. at 364, 17 So. 2d at 618 (citations omitted, emphasis added).
I confess that the facts of this case are not attractive for application of the statute, but could well be present in another series of events. Surely one would have to say that, had the testator, in her last few days, succumbed to a television evangelist‘s call to be with the Lord by delivering her property to his church and thus leave unprotected a physically handicapped child, a rational basis for the statute would exist. The legislature has the right to put conditions on devises of property. It may be that in today‘s society the legislature should not effect legislation like
The majority concludes that disposition of property by will is protected by
The right of the legislature to control and put limitations on the devise of property has long been recognized. Justice Taylor‘s concurring opinion in Thomas v. Williamson, 51 Fla. 332, 342-43, 40 So. 831, 834 (1906), correctly stated:
The power to alienate any species of property by last will and testament has never been an inherent right in the citizen,
but one that is derived from legislation, and is at all times subject to legislative control, and may at any time be altogether taken away by legislative act. In the history of this State, as early as November 20th, 1828, every person of the age of twenty-one years was empowered, by an act of the legislature then passed to dispose of property real and personal by last will and testament, and thus has the law stood from that day down to the present time. Section 1792, Revised Statutes of 1892. I do not think that it was the design of Section 4 of Article X of our Constitution of 1885 to curtail or impose any limitations or restrictions upon the power of the legislature over the general subject of the alienation of property by last will and testament, except that it in express terms makes the homestead inalienable by will when the holder thereof has children in esse. Of course the legislature cannot interfere with this status given by the organic law to the homestead of a holder having children. The constitution inhibits its alienation by will when the holder has children, and the legislature is without power contra to the constitution, to empower him to do so; but the language of said section 4 of the constitution is carefully and somewhat peculiarly chosen. It expressly and carefully confines any one construing it to its own terms and provisions. Its language is: Nothing in this article shall be construed to prevent the holder of a homestead, if he be without children, from disposing of his or her homestead by will in a manner prescribed by law. This is equivalent to saying: None of the provisions in this article of this constitution shall be held to prevent the holder of a homestead who is without children from alienating the same by will, but although this constitution does not so prevent, yet the legislature is left free to prevent it, or to impose such limitations and conditions upon such an alienation of it, in the absence of children, as it may see proper. In other words, the constitution neither permits nor prevents the disposal of the homestead by will, when the holder is without children, but the legislature is left free to deal with the subject as it sees proper.
(Emphasis in original.)
Taylor was decided in 1944. I do not know of any constitutional or societal changes since then adequate to mandate overruling it. As recently as 1984 the statute‘s constitutionality was upheld by the Fourth District Court of Appeal in Arthritis Foundation v. Beisse, 456 So. 2d 954 (Fla. 4th DCA 1984), review denied, 467 So. 2d 999 (Fla. 1985). Prior thereto the legitimacy of the statute had been recognized numerous times. E.g., Ruppert v. Estate of Hastings, 311 So. 2d 810 (Fla. 1st DCA 1975); In re Estate of Rauf, 213 So. 2d 31 (Fla. 1st DCA 1968), cert. denied, 225 So. 2d 524 (Fla. 1969); In re Estate of Lane, 186 So. 2d 257 (Fla. 2d DCA 1966); In re Estate of Blankenship. The legislature has not repealed the statute since we found it constitutional, but has, in effect, reenacted it. We should not nullify it now. I therefore dissent on finding
OVERTON, J., concurs.
Notes
Section 732.803 of the Florida Statutes (1985), provides:
(1) If a testator dies leaving lineal descendants or a spouse and his will devises part or all of the testator‘s estate:
(a) To a benevolent, charitable, educational, literary, scientific, religious, or missionary institution, corporation, association, or purpose,
(b) To this state, any other state or country, or a county, city, or town in this or any other state or country, or
(c) To a person in trust for any such purpose or beneficiary, whether or not the trust appears on the face of the instrument making the devise, the devise shall be avoided in its entirety if one or more of the lineal descendants or a spouse who would receive any interest in the devise, if avoided, files written notice to this effect in the administration proceeding within 4 months after the date letters are issued, unless:
(d) The will was duly executed at least 6 months before the testator‘s death, or
(e) The testator made a valid charitable devise in substantially the same amount for the same purpose or to the same beneficiary, or to a person in trust for the same purpose or beneficiary, as was made in the last will or by a will or a series of wills duly executed immediately next to the last will, one of which was executed more than 6 months before the testator‘s death.
(2) The testator‘s making of a codicil that does not substantially change a charitable devise as herein defined within the 6-month period before the testator‘s death shall not render the charitable gift voidable under this section.