text:
    ATLANTIC FIRST NATIONAL BANK OF DAYTONA BEACH, Appellant, v. Joe H. CRIPE, et ux., Appellee.
    No. 79-514.
    District Court of Appeal of Florida, Fifth District.
    Sept. 17, 1980.
    Rehearing Denied Oct. 24, 1980.

      B. Paul Katz, Daytona Beach, for appellant.
    Garrett L. Briggs, Daytona Beach, for appellee.
   FRANK D. UPCHURCH, Jr., Judge.

Appellant Atlantic First National Bank of Daytona Beach, the plaintiff below, as personal representative of the estate of Carrie B. Hare, which was the plaintiff below, appeals a final judgment entered by the Circuit Court for Volusia County.

Carrie B. Hare, who died in April, 1976, had been befriended by appellees, Joe and Sereata Cripe. The bank sought to recover certain assets in the approximate amount of $55,000.00 which appellees had obtained from Mrs. Hare.

The first question raised by this appeal is whether the facts established a presumption of undue influence, and if so, whether it was rebutted by appellees. We conclude that the presumption was established and appellees failed to rebut it.

Mrs. Hare, at the time of her death, was approximately 90 years of age. In 1966, at a deposition she gave she was unable to recall her age, birthdate, or how long she had lived in Daytona Beach, as well as other significant facts. Shortly thereafter, appel-lees claimed they entered into an agreement with Mrs. Hare to handle her business affairs and to provide her with housekeeping services. In exchange, they were to receive a rent-free apartment in Mrs. Hare’s apartment complex and entitlement to any funds remaining in the joint bank accounts at her death. Upon her death there existed a joint checking account in the names of Joe Cripe and Carrie B. Hare at the Florida Bank and Trust Company in the amount of $12,700.00; a certificate of deposit in the amount of $32,000.00 and an account at the Atlantic First National Bank in the amount of $10,900.00. At Mrs. Hare’s death, Mr. Cripe placed these sums •in a certificate of deposit in his and his wife’s names. The bank brought this action to void these transactions on the ground of undue influence.

Appellees contend that they are entitled to the funds in the joint accounts and certificate by authority of section 659.291(1), Florida Statutes (1979) which provides:

[Wjith the opening or maintenance of an account, including a certificate of deposit, in the names of two or more persons . payable to or on the order of one or more of them or the surviving account holder ., all such persons and each person depositing funds in any such account shall be presumed to have intended that upon the death of any such person all rights, title, interest and claim in, to, and in respect of, said deposits and account shall vest in the surviving account holder or holders.

Subsection (2) of this section, however, provides that the presumption in favor of the survivor is not absolute:

The presumption herein created may be overcome only by proof of fraud or undue influence or clear and convincing proof of a contrary intent.

Therefore, the issue here is whether the accounts and certificate were created or maintained as a result of undue influence by the appellees.

Undue influence is that which amounts to over-persuasion, duress, force, coercion or artful or fraudulent contrivances to such a degree that there is a destruction of the free agency and will power of the one making the will or gift. See Heasley v. Evans, 104 So.2d 854 (Fla.2d DCA 1958). Mere affection, kindness or attachment of one person for another may not of itself constitute undue influence. Id. at 857.

While as a general proposition, the burden of proof rests with the party claiming undue influence, Freedman v. Freedman, 345 So.2d 834 (Fla.3d DCA 1977), the law is a jealous guardian of confidence and trust and will not permit the use of confidential or fiduciary relations to achieve acquisition of personal gain. Wilkins v. Wilkins, 141 Fla. 188, 192 So. 791 (1939). Therefore, where a confidential or fiduciary relationship exists and there is active procurement of gain by the one in whom confidence is reposed, the law presumes that the gift was obtained by undue influence. In Re Estate of Carpenter, 253 So.2d 697 (Fla. 1971); Williamson v. Kirby, 379 So.2d 693 (Fla.2d DCA 1980). See also Howland v. Strahan, 219 So.2d 472 (Fla.3d DCA 1969). The presumption is, however, rebuttable.

Courts have some flexibility in determining the existence of a confidential or fiduciary relationship and in ascertaining whether the facts show active procurement. Carpenter at 701. A confidential relationship may embrace both technical fiduciary relationships and those informal relationships which exist whenever one person trusts in and relies upon another. It exists in every case where confidence is reposed on one side and there is resulting superiority and influence on the other; the relationship and duties need not be legal, but may be moral, social, domestic, or merely personal. Earls v. Johnson, 172 So.2d 602 (Fla.2d DCA 1965). See also Quinn v. Phipps, 93 Fla. 805, 113 So. 419 (1927).

In the case before us, Mr. Cripe’s testimony evinces a close, personal relationship between himself, his wife, and Mrs. Hare. They visited her apartments annually between 1949 and her death in 1976. They handled her business affairs and after 1966, wrote all checks, made all deposits and handled the execution of documents in a condemnation suit. One can hardly construct a position of greater trust and these facts indicate the presence of active procurement. Therefore, it is clear that a presumption of undue influence arose.

The next question is whether appellees met their burden of coming forward with a reasonable explanation for their active role in Mrs. Hare’s affairs. Carpenter, at 704; Williamson at 695; Bryant v. Bryant, 379 So.2d 382 (Fla.lst DCA 1980); Majorana v. Constantine, 318 So.2d 185 (Fla.2d DCA 1975); Pate v. Mellen, 275 So.2d 562 (Fla.lst DCA 1973).

Appellees explain their involvement was based on their friendship with Mrs. Hare between 1949 and 1966. They also point out that they did indeed care for her business and personal needs between 1966 and her death. A finding of inadequacy of consideration coupled with mental weakness on the part of the donor may result in a finding of a failure to meet the burden of a reasonable explanation. See Bryant at 383.

Appellees testified that they not only were to receive a rent-free apartment, but also all profits generated from the apartment rentals as well as joint ownership of the checking accounts and the certificate. For this, they looked after her business and personal affairs although they were only in Daytona Beach eight months of the year. The testimony of a neighbor who had taken care of Mrs. Hare and brought her meals prior to 1966 reemphasized the confused and unstable person reflected in the deposition of Mrs. Hare in 1966.

Therefore, we conclude that the explanation offered by appellees did not reasonably explain their involvement in view of the confused mental state of Mrs. Hare and the disparity between the amount ap-pellees received and the services they rendered. There is no evidence except the signature cards and the self-serving testimony of appellees to prove the existence of any such agreement.

REVERSED.

SHARP, J„ and JAMIESON, FRANCES A., Associate Judge, concur.

      . While Carpenter involved a will situation and the instant case involves an attempt to set aside inter vivos gifts, the same principles apply. Williamson at 695; Majorana v. Constantine, 318 So.2d 185 (Fla.2d DCA 1975).

      . Other evidence as well indicates active procurement, such as Mr. Cripe’s testimony that he asked Mrs. Hare if he could keep the profit from a condemnation award and she said yes. This money (approximately $31,000.00) was used to buy the certificate of deposit.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Leon TOWNSEND, Appellant, v. STATE of Florida, Appellee.
    No. 79-2210.
    District Court of Appeal of Florida, Second District.
    Sept. 17, 1980.
    Rehearing Denied Oct. 28, 1980.
    Jack O. Johnson, Public Defender, and Valerie E. Janard, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Eula Tuttle Mason, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Affirmed. See State v. Brider, 386 So.2d 818 (Fla.2d DCA 1980).

SCHEB, C. J., and HOBSON and CAMPBELL, JJ., concur.


author: McCORD, Judge. PER CURIAM.

text:
    Joseph DESFOSSES, Appellant, v. CARILLON HOTEL and Professional Administrators, Inc., Appellees.
    No. QQ-364.
    District Court of Appeal of Florida, First District.
    Sept. 23, 1980.
    On Rehearing Oct. 27, 1980.
    L. Barry Keyfetz of Keyfetz & Poses, Miami, for appellant.
    Robert H. Gregory, Miami, for appellees.
   McCORD, Judge.

Appellant raises three points for review in his appeal from a workers’ compensation order. We affirm in part and reverse in part.

In November 1977, appellant suffered a compensable accident when he injured his knee while employed by appellee Carillon Hotel as a banquet waiter. He worked for Carillon Hotel only “during the season” which ran from October through June. Therefore, at the time of his accident, appellant had worked for the hotel for only approximately six weeks. Prior to October 1, appellant was unemployed. As a result of the injury, appellant was unable to work from November 17 until December 31. He returned to work from January 1, 1978, until February 11, when he had to seek further medical treatment because his knee problem had flared up again. He reached maximum medical improvement on April 5, 1978, sustaining a 10% permanent partial disability of his leg.

In his first point on appeal, appellant asserts that the Judge of Industrial Claims erred in computing appellant’s average weekly wage. We agree. In computing the average weekly wage, the Judge averaged appellant’s actual salary for the 13-week period preceding the accident, thus, incorporating into his computations the seven weeks prior to October during which appellant was unemployed. The Judge of Industrial Claims’ method of computation was error. Under § 440.14(1), Florida Statutes (1977), if the injured employee has engaged in the employment in which he was working at the time of injury for 13 weeks immediately preceding the injury, his average weekly wage shall be Vis of the total amount of wages earned in that employment during the 13 weeks. That subsection indicates that unless the employee has worked for at least 90% of the 13-week period, that method of computation of average weekly wage should not be used in his case. Section 440.14(2), Florida Statutes (1977), provides for computation of the average weekly wage using the wages of a similar employee in the same employment as a base if the injured employee has not worked in the employment for 13 weeks. There was no 'showing in this case that a similar employee was available. Appellant makes no contention that his average weekly wage should be calculated under § 440.-14(3) as a seasonal worker. Section 440.-14(4) provides:

If any of the foregoing methods cannot reasonably and fairly be applied the full-time weekly wages of the injured employee shall be used, except as otherwise provided in subsections (5) or (6).

The Judge of Industrial Claims should have computed appellant’s average weekly wage from appellant’s actual wages. Therefore, we reverse on this point and remand for a new determination of average weekly wage pursuant to § 440.14(4), Florida Statutes (1977). Robert Brown Building Maintenance v. Slack, IRC Order 2-3463 (June 27, 1978), cert. den. 374 So.2d 458 (Fla.1979); Imperial Frame Corp. v. Santos, IRC Order 2-3043 (Oct. 13, 1976), cert. den. 345 So.2d 423 (Fla.1977).

Moving to appellant’s second point, the temporary benefits awarded by the Judge of Industrial Claims were less than those already paid by the employer. The Judge ordered the employer to pay appellant certain permanent partial disability benefits. In the order, the Judge directed that the employer could take credit for benefits previously paid. Since no permanent partial disability benefits had been previously paid, the above statement by the Judge appears to indicate that the employer may take credit for the overpayment of temporary total benefits. Appellant argues as his second point that the employer is not entitled to any credit for excess payment of temporary benefits against payment of permanent benefits. This issue has been rendered moot by our ruling that benefits must be recalculated on remand due to the Judge of Industrial Claims’ improper computation of average weekly wage. We note, however, that credit for overpayment of benefits cannot be given except as against the same class of benefits and within the same time of disability. Diplomat Hotel v. Badini, IRC Order 2-3494 (1978); Tampa Wholesale Company v. Gores, IRC Order 2-3720 (1979); and Schel v. City of Miami, 193 So.2d 170 (Fla.1966).

We have considered appellant’s third point regarding the Judge of Industrial Claims’ assessment of attorneys fees and find no error.

Affirmed in part and reversed in part and remanded for reconsideration consistent with this opinion.

LARRY G. SMITH and WENTWORTH, JJ., concur.

ON PETITION FOR REHEARING

PER CURIAM.

Upon consideration of appellant’s petition for rehearing, it is granted and the portion of the opinion relating to attorney’s fees below is vacated. The deputy commissioner is directed to allow appellant’s attorney a reasonable fee after considering appellant’s recomputed benefits in conjunction with the other factors pertaining to the allowance of a reasonable fee.

McCORD, LARRY G. SMITH and WENTWORTH, JJ., concur.


author: PER CURIAM. FRANK D. UPCHURCH, Jr., Judge,

text:
    W. W. GOODNER et al., Appellants, v. DAYTONA BEACH OCEAN TOWERS, INC., et al., Appellees.
    No. 80-377.
    District Court of Appeal of Florida, Fifth District.
    Sept. 24, 1980.
    Rehearing Denied Oct. 23, 1980.
    Louis Ossinsky, Jr. of Ossinsky, Krol & Hess, Daytona Beach, for appellants.
    Sean Daly, Daytona Beach, Raymond, Wilson, Conway, Barr, Burrows & Jester, Ormond Beach, for appellees.
   PER CURIAM.

AFFIRMED.

ORFINGER, J., and GREEN, OLIVER L., Associate Judge, concur.

FRANK D. UPCHURCH, Jr., J., dissents with opinion.

FRANK D. UPCHURCH, Jr., Judge,

dissenting.

This is an appeal from a final order of the Circuit Court for Volusia County dismissing appellants’ complaint with prejudice and dissolving a temporary injunction.

Appellee, Daytona Beach Ocean Towers, Inc., [Association] is a corporation formed to manage Daytona Beach Ocean Towers Condominium. There are 199 units in the condominium and they constitute the voting members of the condominium association (the corporation).

One of the features advertised by the developers of the condominium was a twenty-four hour telephone service afforded to each unit. The association charged for the service only those unit owners who utilized it. At the time of the hearing, only twenty-four unit owners were making use of the service though it was the motivating factor for the purchase of several units by their owners, one of whom is blind. The question as to whether charging only those unit owners who desired the service was authorized by the condominium document was not raised. The practice, however, probably resulted in a much lower utilization and resulted in the service being a financial drain on the association.

The trial court held that the service could be terminated by the board of directors and that approval of the action by the membership was not necessary because “termination of said switchboard service was not a substantial or material alteration to the common elements of the condominium as defined by Florida Statutes.”

“Common elements” is defined by section 718.108, Florida Statutes (1979), to include:

1(d). The property and installations required for the furnishing of utilities and other services to more than one unit or to the common elements.
2. The declaration may designate other parts of the condominium property as common elements.

Section 718.113(2), provides:

There shall be no material alteration or substantial additions to the common elements except in a manner provided in the declaration.

If the telephone service and equipment is a common element, the board of directors could not terminate the service, but the members of the corporation would be required to amend the Declaration of Condominium as provided. In this declaration, the amending process requires recording in the Volusia County public records a modification signed by the owners of 150 or more units and by all owners and holders of first mortgage liens on any units. The difficulty in accomplishing the modification of the declaration is obvious.

The declaration provides:

It shall be the duty of the corporation to provide, through its agents and employees, for the administration, operation, maintenance, repair and replacement of the common elements.

The declaration does not specifically describe the telephone service or the telephone equipment as a common element. The declaration does define common elements as:

[A]ll of the real property, improvements, and facilities . . . which is not within any living unit . . (not including limited common elements) and shall include easement through units for conduits, pipes, ducts, plumbing, wiring and other facilities for the furnishing of utility service to units and common elements.

The floor plan included in the declaration has a space designated “telephone equipment.”

The controlling question, as touched upon above, is whether the twenty-four hour telephone system and service is to be considered a common element. If it is, its termination would require modification of the declaration. Appellee contends that because the telephone switchboard is leased from the telephone company it cannot be a common element as defined in the law or the declaration. It is well established that recreation leases or other analogous service contracts may be deemed a common element. Ackerman v. Spring Lake of Broward, 260 So.2d 264 (Fla. 4th DCA 1972). In the case before us, the telephone switchboard only provides service within the condominium, however, the same principles would apply if all telephone service was dependent on the switchboard.

Under the powers allocated to the board of directors of the corporation, the board was authorized:

[T]o provide from the proceeds of the assessments for the operation, administration, maintenance, repair, improvements, replacement, insurance and utilities for said property.

Using appellee’s reasoning, if the switchboard was owned it would be a common element and the board would be required to maintain it. The board would not be able to terminate the service without approval of the unit owners as provided in the declaration. At some point, the switchboard would become obsolete or no longer economical to repair. At that point, the board of directors may decide to replace the switchboard with leased equipment. Now, having converted to leased equipment, could the board of directors terminate the service?

In my opinion, the question, whether the board of directors is authorized to eliminate a vital service, should not turn on the basis that a part of the equipment utilized in furnishing that service is leased. This is the position the majority has taken. Therefore, I must dissent.

      . All incoming telephone calls do not go through the switchboard and outside telephone service is also available to all units. Access to dle operator can also be had by dialing the condominium office number on the outside telephone system.


author: SHARP, Judge.

text:
    Katherine MacNEIL, Appellant, v. Alan Neal SINGER, Appellee.
    No. 78-2034/T4-209.
    District Court of Appeal of Florida, Fifth District.
    Sept. 24, 1980.
    Rehearings Denied Oct. 20, 1980.

      Philip Glatzer of Highsmith & Strauss, P. A., Miami, for appellant.
    Stephen D. Feinberg of Akerman, Senter-fitt & Eidson, Orlando, for appellee.
   SHARP, Judge.

Katherine MacNeil appeals from a judgment denying her any recovery in a personal injury suit against Alan Neal Singer. She argues the trial court erred in admitting in evidence a certified copy of a traffic citation and a guilty plea thereto, arising out of the accident. We agree the admission of the citation and guilty plea in this case constitutes a material and prejudicial error.

MacNeil on her bicycle and Singer in his car collided at an intersection in Gainesville, just after sundown on September 21, 1976. MacNeil had no lamp on the front of her bicycle. Singer stopped at a stop sign, and MacNeil started across the intersection. There were lights at the intersection, on a building nearby, and Singer’s car lights were on. MacNeil thought Singer saw her, but he pulled into the intersection and hit her. Singer was hurrying to claim a parking space he had just found, after trying to find one for some time. MacNeil was hospitalized with severe injuries, but no one else was injured.

The investigating officer cited MacNeil for a violation of section 316.111(9), Florida Statutes (1975). Section 318.14, Florida Statutes (1975) provides that persons cited for violations of “noncriminal traffic infractions” may pay the civil penalty by mail or in person within ten days of receiving the citation. Failure to have a lamp on one’s bicycle after sundown as required by section 316.2065(9), Florida Statutes (1979), is such a “noncriminal traffic infraction.” The statute also provides that if the person cited either pays his penalty or forfeits his bond, “he shall be deemed to have admitted the infraction.” Without consulting Mac-Neil, while her daughter was in the hospital, MacNeil’s mother paid the fine by mail. She was unaware that her actions triggered the entry of an “automatic” guilty plea to the citation for Katherine. But the statute protects the unwary by providing that “such admission shall not be used as evidence in any other proceedings.” (Emphasis supplied.) Section 318.14(4)(b), Florida Statutes (1975).

MacNeil objected at trial to the introduction in evidence of the traffic citation and guilty plea. Counsel argued the plea was not admissible against MacNeil since the testimony showed her mother paid the fine without her consent or direction. The objection was overruled. After the jury returned its verdict for Singer, MacNeil argued a new trial should be granted because the admission of the plea violated the express provisions of section 318.14(4)(b). The motion was denied.

The guilty plea in this case was not admissible because of the express language of section 318.14(4)(b), Florida Statutes (1975). The legislature recognized that persons charged with minor traffic offenses often pay their fines, as a matter of expediency, rather than contesting the charge, and such action should not be deemed an admission of guilt or fault in any other context. Section 318.19(1) states that the privilege of mailing in a fine in lieu of an actual appearance as set forth in section 318.14(4) does not extend to accidents where “another” person is killed or injured, or where damage to property exceeds $250.00. In this case, MacNeil was the only person injured and there was no testimony about property damage. In any event, MacNeil would not be faced with an “automatic” guilty plea, were section 318.-14(4) not applicable.

Singer argues MacNeil failed to object at trial to the admission of the plea based on a violation of section 318.14(4)(b), and thus she failed to preserve the error for our consideration on appeal. Tabasky v. Dreyfuss, 350 So.2d 520 (Fla. 3d DCA 1977). However, the ground was specified in Mac-Neil’s motion for new trial, and the objection actually made at trial was a valid one. We are not therefore precluded from considering this error on appeal.

A guilty plea is a kind of “admission against interest.” Absent an express exclusionary rule such as is contained in section 318.14(4)(b), it may be introduced in a civil action against a party, if relevant and material to the issues. Chimerakis v. Evans, 221 So.2d 735 (Fla.1969); Boshnack v. World Wide Rent-A-Car, Inc., 195 So.2d 216 (Fla.1967). However, it is axiomatic that any such admission must be made by-, the party against whom it is offered, or with his consent, direction, or concurrence. Mizell v. Travelers’ Insurance Co., 44 Fla. 799, 33 So. 454 (1902). Mrs. MacNeil’s maternal concerns triggered payment of the fine in this case. Katherine was not consulted, nor was she aware of her mother’s actions on .her behalf. It therefore was not her plea, and should not have been admissible against her. Johnson v. Woods, 315 S.W.2d 75 (Tex.Civ.App.1958); Cf. Carter v. Carter, 88 So.2d 153 (Fla.1956).

The erroneous admission of the guilty plea was material because it likely influenced the jury verdict in this case. There was considerable conflicting evidence on the question of fault for MacNeil’s injuries. She had no light on her bicycle, but she had the “right of way,” and there was other light at the intersection which might have been sufficient to enable Singer to see her. Singer and MacNeil were the only “eye-witnesses” to the accident. Where there is such conflicting evidence concerning fault in a traffic accident case, the admission of a traffic citation and guilty plea has an overwhelming and forceful effect on the jury.

Common sense (and experience as well) tells us that to the average juror the decision of the investigating police officer, i. e., whether to charge one driver or the other with a traffic violation based upon the result of his investigation, is very material to, if not wholly dispositive of, that juror’s determination of fault on the part of the respective drivers.

Albertson v. Stark, 294 So.2d 698, 699 (Fla. 4th DCA 1974).

We cannot agree that the error in this case was harmless.

REVERSED and REMANDED.

ORFINGER, J., concurs.

COBB, J., concurs without participation in oral argument.

      .MacNeil was charged with a violation of § 316.111(9), Fla.Stat. (1975), now renumbered § 316.2065(9), Fla.Stat. (1979), which provides:
      After sundown, every bicycle shall be equipped with a lamp on the front exhibiting a white light visible from a distance of at least 500 feet to the front and a lamp on the rear exhibiting a red light visible from a distance of 500 feet to the rear, except that a red reflector meeting the requirements of this section may be used in lieu of a red light. All such lamps and reflectors shall be in place and operation whenever a bicycle is operated after sundown.

      . Mrs. MacNeil testified'“I thought that by paying the fine she [her daughter] would be saved having to do that. I didn’t know what condition she’d be in when she was allowed out of the hospital . .

      . Earlier MacNeil filed a motion in limine to exclude the guilty plea from trial, but neither the motion nor the court’s ruling are part of the record on appeal.

      . See Mackey v. Reserve Insurance Company, 349 So.2d 830 (Fla. 1st DCA 1977).

      . Statements of third persons may also be admissible as “admissions” under circumstances indicating agency, vicarious liability, or privity, which are not involved in this case.

        .McArthur v. Cook, 99 So.2d 565 (Fla. 1957); Eggers v. Phillips Hardware Company, 88 So.2d 507 (Fla.1956).


text:
    William G. LEWIS, as Executor of the Estate of Beulah Robinson Lewis, Appellant, v. Raleigh Travers GREEN, III; Jan Singleton Carter, William Lytle Schultz, and Doris Robinson Schultz, Appellees.
    No. OO-185/T1-109.
    District Court of Appeal of Florida, Fifth District.
    Sept. 24, 1980.
    Rehearings Denied Oct. 22, 1980.

      A. Graham Allen of Freeman, Richardson, Watson, Slade, McCarthy & Kelly, P. A., Jacksonville, for appellant.
    J. Grover Henderson of Stein & Henderson, St. Marys, Ga., for appellees.
   SHARP, Judge.

The plaintiffs, Raleigh Travers Green, III, Jan Singleton Carter, William Lytle Schultz, and Doris Robinson Schultz, sought a declaratory judgment interpreting their rights under the will of John S. Robinson. This is the second time this will has been construed, and it will not be the last. The defendants are the Barnett Bank of St. Augustine, the trustee of the testamentary trust established by John S. Robinson’s will, Margaret L. Dyer, William G. Lewis, and Rose Mae Francis Lewis Neville. The co-executors of the estates of Rose Robinson Lewis and Beulah Robinson Lewis intervened in the suit. They claim that immediate declaratory relief is needed to determine the rights of the estates to inherit under the will, in order to properly administer the estates. Additional defendants are Rose Gordon Neville and Richard Henry Neville, the adopted children of Rose Mae Francis Lewis Neville; and Georgia Mason Furnival, James R. Dyer, Richard L. Furni-val, and Margaret Dyer Furnival, the adopted children of Margaret L. Dyer. A “Robinson Family Tree” follows to assist the reader and this court in understanding the relationships of these parties.

There is no dispute about the facts in this case. John S. Robinson, a resident of Jacksonville, Florida, executed his will on April 27,1910. He and his wife, Lizette, had two daughters, Beulah and Rose. Their son, John, had died in 1909. John left a widow, Florence L. Robinson, and a daughter, Doris. At the time of the testator’s death in 1915, Doris was seven years old. Article III of the will provided Doris would receive a $3,000 bequest when she attained 21 years, and conditioned her inheritance under the will as follows:

I further direct that in the event Florence L. Robinson, the mother of my grand-daughter, Doris L. Robinson, shall die before my said grand-daughter, then it is my will and I desire that said granddaughter shall be given in sole charge of one of my three first named trustees and my said trustees shall provide for the maintenance, care and education of my said grand-daughter out of the income from my estate until she shall reach the age of twenty-one years, and she shall share in my estate as my other grandchildren as hereinafter provided, but in the event the said Doris L. Robinson shall not be given in charge of my said trustees by her mothers relatives, or she, herself, shall refuse to go into my said trustee’s charge, then the said amount of three thousand ($3,000.00) dollars shall be the only amount she shall receive from my estate.

Florence died in 1917, leaving Doris in the care of maternal aunts. After the death of her grandfather, Doris visited her paternal grandmother every week until her grandmother died in 1924. As a teenager during the summers, Doris visited her Aunt Beulah and Aunt Rose in Virginia, spending two weeks with each. Neither Lizette nor the paternal aunts mentioned the condition in the will about Doris having to live with one of them to share in the estate. Nor did they ever ask or invite her to make her home with one of them. When Doris was nineteen she married and moved to Tampa with her first husband, Mr. Green.

The death of Lizette in 1924 triggered the first litigation concerning the construction of John Robinson’s will. Doris filed a suit in 1929 to have her rights to income determined under the trust, her rights to the $3,000 bequest, and her rights to share in the estate as an heir. In Green v. Lewis, 113 Fla. 609, 151 So. 280 (1933), the Florida Supreme Court determined that Doris was entitled to receive one-third of her grandmother’s share of the income from the trust during the existence of the trust by her “right of substitution.” Article V of the will provided that the trust would continue until twenty one years after the death of John’s last surviving grandchild who was then living. All of the grandchildren (Rose Mae, John, William, Margaret, and Doris) were then living. Article IV of the will provided that the income of the trust would be paid Vtth to Lizette, Vsth to Beulah and Vsth to Rose, or used proportionately for their benefits in the trustees’ discretion. The Green court held that Article IV contained no conditions unmet by Doris which might prevent her from sharing the trust income by right of substitution.

Upon termination of the trust, Article VI of John Robinson’s will provided:

[t]hen my estate shall be divided equally in the proportions to which their ancestors are entitled, among the surviving heirs of the issue of the beneficiaries herein named, provided however that no portion of my estate, except the special bequest of $3,000.00, shall go to my granddaughter, Doris L. Robinson, or her issue, unless the provisions of article three of this will shall have been strictly complied with.

The Green court refused to say who was entitled to distribution of the trust corpus when the trust terminates. “That will be a problem for those charged with the distribution when that time arrives.” 151 So. at 272. It also expressly refused to decide whether or not the conditions imposed by Article III and Article VI were void because of being contrary to public policy.

It is contended here that conditions imposed by item III of the will are void because the same are contrary to public policy. We do not think it necessary to so hold . ..

151 So. at 271 (Emphasis supplied).

Following the conclusion of the litigation in 1935, Doris signed a document acknowledging receipt of her $3,000.00 legacy under her grandfather’s will. She also executed an assignment to her two paternal aunts, Beulah and Rose, of all of her “right, title and interest in the estate of John S. Robinson, deceased, whether as an heir at law of said decedent or a legatee or distributee under the will of said decedent, and whether said right, title and interest be it real or personal property, or otherwise ...” For this assignment Doris received $12,315.48.

This very complex case was currently prosecuted by the parties over a 3 year period. The lower court entered a declaratory judgment which answered four questions:

(1) Who are the present income beneficiaries of the trust?
(2) Who will receive the income when a now-living income beneficiary dies?
(3) When all of the income beneficiaries die, who will receive the income?
(4) Who will receive the corpus of the trust when the trust terminates?

The plaintiffs appeal from the judgment and some of the defendants cross-appeal. For reasons stated herein, we affirm the lower court in part, and reverse it in part. We amend the judgment to conform to this opinion.

Issue I: Who are the current income beneficiaries of the trust?

The Green case determined that Article IV of the will created cross-remainders to the lineal descendants of Lizette, Beulah, and Rose, in proportion to their shares of the trust income of Vith, Vith, and Vsth respectively. Doris was thus entitled to Vird of Lizette’s Vith share because she was the sole issue of one of Lizette’s three children. Doris assigned this right to receive income from the trust to Rose and Beulah. We agree with the lower court’s finding that this assignment was valid and binding. The estates of Beulah and Rose or whatever heirs are entitled thereunder shall continue to receive Doris’ fractional share of the trust income during Doris’ lifetime.

We also agree with the lower court that upon the death of Doris, her lineal descendants will have the right to receive this fractional share of the income. Doris never had the power to convey or assign away the rights of her issue to share in the income after her death. The identity of Doris’ issue or descendants who will receive her share of the trust income cannot now be determined. Any such person must survive Doris, and must be her issue or lineal descendant. In re Rentz’ Estate, 152 So.2d 480 (Fla. 3d DCA 1963), cert. denied, 156 So.2d 859 (Fla.1963); Dean v. Crews, 77 Fla. 319, 81 So. 479 (1919); 80 Am.Jur.2d Wills §§ 1409, 1415 (1975). The distribution should be per stirpes. Green v. Lewis, 113 Fla. 609, 151 So. 270 (1933); Rogers v. Atlantic Nat. Bank of Jacksonville, 371 So.2d 174 (Fla.1st DCA 1979); § 732.611, Fla.Stat. (1979); § 732.104, Fla.Stat. (1979).

Beulah’s fractional share of the trust income (Vsth plus V&rd of Lizette’s V-ith) should have been shared equally by her two surviving children, Rose Mae Francis Lewis Ne-ville and William G. Lewis. Upon Rose Mae’s death, the question arises as to whether her adopted children, Rose Gordon Neville and Richard Neville, are her “issue” or “lineal descendants” for purposes of sharing in the trust income. Relying on In re Hewetts Estate, 153 Fla. 137, 13 So.2d 904 (1943), and In re Levy’s Estate, 141 So.2d 803 (Fla. 2d DCA 1962), the lower court held that the testator only intended persons in his blood line to inherit, and therefore adopted children would not receive the income as issue or descendants of their adopting parents. We disagree.

There is no indication in the instrument that the testator considered the possibility that grandchildren might adopt great-grandchildren in the remote future, as happened in this case. The language of the will refers only to “issue” of deceased persons and their “direct descendants.” The reference in the will to “deceased persons” encompassed the testator’s children and their children:

In the event of death of either or any of the beneficiaries herein named [his daughters and wife] or of their children, [the grandchildren] taking by substitution after their death, I then direct that the proportion of the income of such deceased person or persons, be divided among the issue of such deceased person, and in the event such deceased person should have no living issue or direct descendants thereof ...

The question is thus: did the testator intend to include adopted children as the issue or descendants of his grandchildren, where the will and the evidence cast no light on his actual intention?

The better view is that adopted children are the issue and the lineal descendants of their adopting parents for 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. Section 732.108(1), Florida Statutes (1979), provides:

For the purpose of intestate succession by or from an adopted person, the adopted person is a lineal descendant of the adopting parent and is one of the natural kindred of all of the members of the adopting parent’s family . . .

Section 732.608, Florida Statutes (1979), provides:

Adopted persons . .. are included in class gift[s] terminology and terms of relationship, in accordance with rules for determining relationships for purposes of intestate succession.

Section 63.172, Florida Statutes (1979), provides:

(1) A judgment of adoption . . . has the following effect:
(c) It creates the relationship between the adopted person and the petitioner and all relatives of the petitioner that would have existed if the adopted person were a legitimate blood descendant of the petitioner. This relationship shall be created for all purposes, including inheritance and applicability of statutes, documents, and instruments, whether executed before or after entry of the adoption judgment, that do not expressly exclude an adopted person from their operation or effect. (Emphasis supplied).

In view of the clear public policy expressed in the statutes of this state, there is no longer any reason to treat an adopted child differently than a natural child, for purposes of intestate or testate inheritance. Simon, Redfearn Wills and Administration in Florida, § 23.04 (5th Ed. 1977).

The lower court relied upon In re Hewett’s Estate, 153 Fla. 137, 13 So.2d 904 (1943). The issue in that case was whether or not an adopted child of a first cousin was a “descendant” of the decedent for purposes of intestate inheritance. The Court held that although section 731.30, Florida Statutes (1941) made an adopted child the “lineal descendant” of its adopting parent, it did not make the adopted child the “lineal descendant” of the other members of the adopting family. Even if In re Hewett still has any validity, in view of the legislative changes, it is not dispositive of this case, because the issue here is not whether the adopted children are issue or lineal descendants of John Robinson, but ^whether they, are the issue or lineal descendants of Rose Mae, the testator’s granddaughter, and their adopting parent. Under the 1885 adoption statute, as interpreted by the dictum in In re Hewett, the adopted children are Rose Mae’s lineal descendants. First National Bank of Miami v. Bobcik, 132 So.2d 299 (Fla. 3d DCA 1961), cert. dismissed, 136 So.2d 343 (Fla.1961). See also In re Estate of Carlton, 348 So.2d 896 (Fla. 4th DCA 1977), cert. dismissed, 378 So.2d 1212 (Fla.1979).

Thus, we conclude that Rose Gordon Ne-ville and Richard Neville will take the fractional share of the trust income formerly received by Rose Mae Francis Lewis Ne-ville, by right of substitution.

Issue II-Who will receive the income when a now-living income beneficiary dies?

Issue III-When all of the income beneficiaries die, who will receive the income?

As stated under Issue I, until the trust terminates 21 years after the death of the survivor of William G. Lewis, Margaret Dyer, and Doris (the testator’s grandchildren) the income of the trust will go to the issue or lineal descendants of Beulah, Rose and Lizette, per stirpes, according to the fractional shares stated in the will. The adopted children of Margaret Dyer or their issue will take her share. If William G. Lewis dies without issue or descendants, his share will pass to Rose Mae’s issue. Only if there are no issue or descendants of any of John Robinson’s three children, will the income revert over to the other children’s issue or descendants; and only if there are no living issue or descendants of John Robinson’s grandchildren, will there be a failure of the contingent remainder and therefore an intestate situation. However, with nine great-grandchildren in being, and at least 21 more years for this trust to run, the rights of inheritance on intestacy are much too speculative and remote a matter for this court to now determine.

Issue IV-Who will receive the corpus of the trust when the trust terminates?

This issue necessarily involves answering the question posed but not answered in the Green case: are Doris’ issue banned from inheriting because of the failure of the condition in the will that she be raised by Lizette, Beulah or Rose Robinson after the death of her mother? The lower court held that the condition was vague and therefore void for uncertainty. The trial court said:

If the Court were to speculate that he [John Robinson] intended a legal guardianship of the person of Doris Robinson Schultz it was not within the power of the ‘mother’s relatives’ to appoint any-trustee guardian. That authority was vested in the county judge’s court and the appointment also depended upon the qualifications of the proposed guardian and the best interests of the child. There is no evidence whatsoever that any trustee made any effort to ‘take charge of Doris’ or even recognize their responsibility in that regard. The fact that no one took any action is understandable. They didn’t anymore know at that time what the testator intended by the condition [than] we do today.

We affirm the lower court’s ruling on this point. Doris’ surviving parent had the right to name a personal guardian for her child, or if she did not do so, a court, acting in the child’s “best interest” had this responsibility. The condition in the will appears invalid because it violates public policy. It also could have been held void and unenforceable because the persons for whose benefit the condition was imposed, the grandmother and the paternal aunts, chose not to insist upon Doris living with any one of them, and by not doing so, they benefited their own children and issue, to the detriment of Doris and her issue. Finally, the condition was one that Doris could not have performed under the circumstances. She was a minor, and unaware of the condition. Her aunts and her grandmother never asked her to live with one of them. It was impossible for Doris to fulfill the condition. Since this contingency was obviously not foreseen by the testator, the condition was excused.

John Robinson’s will provides that the trust will continue for the life-times of his grandchildren plus 21 years. Three of his grandchildren are still living. When the trust finally terminates, his will provides that the trust property will be “divided equally in the proportions to which their ancestors are entitled, among the surviving heirs of the issue of the beneficiaries herein named ...” (Emphasis supplied). The lower court held that it is not now possible to determine who the beneficiaries of the trust corpus will be until the trust actually terminates. We agree.

A person’s right to share in the distribution of the corpus of the trust depends on his surviving until the trust terminates, and being within the class of persons described by the testator as persons eligible to take the corpus. No assignment or conveyance by Doris could have defeated the contingent remainder interest in her issue, because she could not possibly have a vested remainder interest in the trust corpus. By its terms, it would not vest in anyone until after her death plus at least 21 years. Dean v. Crews, 77 Fla. 319, 81 So. 479 (1919); 18 Fla.Jur.2d Descendant’s Property §§ 404, 77. When the trust terminates, at least 21 years hence, that will be the time to determine the actual recipients of the trust corpus. We should do no more than suggest in a general way the identity of the potential class members.

The trust has suspended the vesting of the trust corpus for lives in being plus 21 years. We must, if possible, construe its provisions so as not to violate the “rule against perpetuities.” The term “heirs” as used in this trust cannot be given its “normal” meaning-those persons who would take the property of the “issue” of the beneficiaries by intestate succession because there can be no “heir” of a living person and the trust must terminate and vest 21 years after the death of the last living grandchild. Thus we construe the word “heirs” as used in the will as meaning words of “limitation” as opposed to “words of purchase,” and in this case synonymous with the word “issue.” 95 C.J.S. Wills § 673 (1957).

The then surviving issue of John Robinson’s three children are the potential members of the class. They will take their shares per stirpes based on Várd to each line of issue. Should the issue of Beulah or Rose or John expire before the trust terminates, the other line or lines of issue would share equally the distribution of the expired line. As stated previously, the adopted children are includable in the potential class of descendants or issue of their adoptive parents. In re Estate of Moulton, 62 Cal.App.2d 1, 133 Cal.Rptr. 500 (4th DCA 1976); In re Carlton Estate, 348 So.2d 896 (Fla. 4th DCA 1977); cert. dism., 378 So.2d 1212 (Fla.1979).

Since there are at least nine now living potential members of the class, the contingent remainder is not destructible, and it would be premature for this court to speculate about the possibility of intestacy. In any event we recognize, as did the lower court, that the law in effect when the trust terminates will control the ultimate determination of the trust beneficiaries. See 96 C.J.S. Wills § 395 (1957); Carnegie v. First National Bank of Brunswick, 218 Ga. 585, 129 S.E.2d 780 (1963); Commerce Trust Company v. Weed, 318 S.W.2d 289 (Mo. 1958); In re Estate of Evans, 31 Ill.App.3d 753, 334 N.E.2d 850 (1975). Annot., 79 A.L.R.2d § 1453 (1961); Annot., 139 A.L.R. § 1111 (1942); 80 Am.Jur.2d Wills § 1422 (1975).

AFFIRMED in part, MODIFIED in part.

COBB and FRANK D. UPCHURCH, Jr., JJ., concur.

      . Green v. Lewis, 113 Fla. 609, 151 So. 270 (1933).

      . Rose died after the suit was filed in 1976, and her personal representative was substituted in the proceedings.

      .The death of Rose Mae Francis Lewis Neville after this suit was filed and the assertions of the executors of the estate of Beulah and Rose that questions involving the trust must be answered now, in order to properly administer and close the estates, give jurisdiction to provide declaratory relief. Anderson v. Dimick, 77 So.2d 867 (Fla.1955).

      . The “first three named trustees” were Liz-ette, Rose, and Beulah.

      . Upon the death of an income beneficiary, the will provided:
      In the event of the death of either or any of the beneficiaries herein named, or of their children, taking by substitution after their death, then I direct that the proportion of the income of such deceased person or persons, be divided among the issue of such deceased person, and in the event such deceased person should have no living issue or direct descendants thereof, then I direct that the proportion of such beneficiary or beneficiaries shall be divided equally among the surviving beneficiaries in equal proportion.
      For those legal scholars who recall their studies of “future interests” this is technically a cross-remainder to the issue or lineal descendants of Lizette, Beulah and Rose. 80 Am. Jur.2d Wills § 1191 (1975).

      . Clearly she had been entitled to receive this legacy, if nothing more, four previously when she became 21 years old.

      . 80 Am.Jur.2d Wills § 1191 (1975).

      . In re Francis’ Estate, 153 Fla. 360, 14 So.2d 803 (Fla.1943); Ferrera v. United States, 424 F.Supp. 888 (S.D.Fla.1976); 10 Fla.Jur. Descent & Distribution § 90 (1973).

      . Dean v. Crews, 77 Fla. 319, 81 So. 479 (1919); 19 Fla.Jur.2d Descendants Property §§ 404, 77 (1980); Simon, Redfearn Wilis and Administration in Florida, § 12.18 (5th Ed. 1977).

        . In re Estate of Evans, 31 Ill.App.3d 753, 334 N.E.2d 850 (1975). 95 C.J.S. Wills §§ 692, 695 (1957). Arnold v. Wells, 100 Fla. 1470, 131 So. 400 (1930). 28 Am.Jur.2d Estates § 276 (1966). 80 Am.Jur.2d Wills § 1434 (1975).

      . § 732.108(1), Fla.Stat. (1979).

      . The court said this statute was based on the first adoption statute in Florida of 1885.

      . § 732.108(1), Fla.stat. (1979); § 732.608, Fla. Stat. (1979). In re Levy’s Estate, 141 So.2d 803 (Fla. 2d DCA 1962) was clearly “overruled” by § 732.108(1), Fla.stat. (1979).

      . The decision of the trial court is cloaked with a presumption of validity and should not be overturned absent an abuse of discretion. Herzog v. Herzog, 346 So.2d 56 (Fla.1977); Shaw v. Shaw, 334 So.2d 13 (Fla.1976); Greenwood v. Greenwood, 251 So.2d 665 (Fla.1971); Cohen v. Mohawk, Inc., 137 So.2d 222 (Fla.1962).

      . 80 Am.Jur.2d Wills §§ 1563, 1564 (1975). See Billings v. Marshall Furnace Co., 210 Mich. 1, 177 N.W. 222 (1920).

      . Annot., 39 A.L.R.2d 531, § 13 (1955); Lange v. Houston Bank & Trust Co., 194 S.W.2d 797 (Tex.Civ.App.1946); In re Trybom’s Will, 277 N.Y. 106, 13 N.E.2d 596 (1938); Guilliams v. First National Bank of Leesburg, 229 So.2d 633 (Fla. 2d DCA 1969) (dictum).

      . Annot., 39 A.L.R.2d 522, §§ 4, 5 (1955); Annot., 35 A.L.R.2d 388 (1954); Annot., 160 A.L.R. 633 (1946).

      . § 732.514, Fla.Stat. (1979); 18 Fla.Jur.2d Descendant’s Property §§ 406, 397; Simon, Red-fearn Wills and Administration in Florida, §§ 12-18, 11.06 (5th Ed. 1977); 80 Am.Jur.2d Wills, §§ 1408, 1409, 1415, 1434 (1975); 96 C.J.S. Wills, §§ 692, 695 (1952). Arnold v. Wells, 100 Fla. 1470, 131 So. 400 (1930); Dean v. Crews, 77 Fla. 319, 81 So. 479 (1919); Paul v. Frierson, 21 Fla. 529 (1885).

      . Reimer v. Smith, 105 Fla. 621, 142 So. 603 (1932), Simon, Redfearn Wills and Administration in Florida, § 13.09 (5th Ed. 1977); § 689.22 Fla.Stat. (1979).

      . 80 Am.Jur.2d Wills § 1207 (1975); Simon, Redfearn Wills and Administration in Florida, § 12.17 (5th Ed. 1977); 26A C.J.S. Descent & Distribution § 19 (1956). Arnold v. Wells, 100 Fla. 1470, 131 So. 400 (1930); Reimer v. Smith, 105 Fla. 671, 142 So. 603 (1932).

      . 26A C.J.S. Descent and Distribution § 61 (1956); 95 C.J.S. Wills § 678 (1957).

      . Reimer v. Smith, 105 Fla. 671, 142 So. 603 (1932); Storey v. First National Bank & Trust Co., in Orlando, 115 Fla. 436, 156 So. 185 (1934).

      . § 732.611, Fla.Stat. (1979) and § 732.104, Fla.Stat. (1979). In re Davol’s Estate, 100 So.2d 188 (Fla. 3d DCA 1958). See Rogers v. Atlantic Nat’l. Bank of Jacksonville, 371 So.2d 174 (Fla. 1st DCA 1979).

      . In re Rentz' Estate, 152 So.2d 480 (Fla. 3d DCA 1963), cert. denied, 156 So.2d 859 (Fla.1963).

      . Annot., 132 A.L.R. 1069 (1941).


author: SHARP, Judge. DAUKSCH, Chief Judge,

text:
    ESTATE of Louis SOMOGYI, and Joanne Perko, Richard Perko, and Flagship First National Bank of Ormond Beach, Appellants, v. Jeannett MAROSITES, et al., Appellees.
    No. NN-212/T1-66.
    District Court of Appeal of Florida, Fifth District.
    Sept. 24, 1980.
    Rehearing Denied Oct. 22, 1980.

      David A. Monaco of Cobb, Cole, McCoy, Abraham, Bell, Bond, Monaco & Kaney, Daytona Beach, for appellants.
    Berrien Becks, Jr., of Becks & Becks, Daytona Beach, and Cynthia S. Tunnicliff, of Spector & Tunnicliff, P. A., Tallahassee, for appellees.
   SHARP, Judge.

This appeal is from a final judgment in a probate proceeding upholding Louis and Edna Somogyi’s oral agreement to make a joint and mutual will and invalidating Louis’ will made after Edna’s death. We affirm.

The evidence showed the decedent, Louis Somogyi, married his wife Edna in 1938. Edna had three children by a previous marriage. Louis treated them as his own, but he did not adopt them. In 1956, Louis and Edna agreed that upon the death of either of them, their properties would go to the survivor and then to Edna’s three children. This plan was incorporated into a handwritten joint will which was subscribed by three witnesses. Although a copy of this will was not found, its contents and execution were established through witnesses. Edna died in 1967. In 1971, Louis executed a new will leaving his assets to his niece and nephew, Richard and Joanne Perko. He died in 1978.

The lower court found that Louis and Edna Somogyi entered into a binding oral agreement to make a joint and mutual will in 1956. They consummated the agreement by signing a handwritten, one-page joint will, which contained the same terms as the oral agreement. Edna and Louis repeatedly told other parties about the joint will through the date of Edna’s death.

Edna’s sister, Clara, testified she saw the will after it was executed. It was written out in script (probably by Louis), signed by both Louis and Edna, and witnessed by three people. It had two paragraphs. It passed all their property to the survivor and on death of the survivor, the property then owned was to pass to Edna’s three daughters. Both Edna and Louis told Clara they had agreed that when both passed away the girls would receive all of their property. She recalled Edna and Louis repeated these remarks from 1956 through 1967. Clara said “I understood they had an agreement on those lines.” When Edna died in 1967, and Louis again told Clara that Edna’s girls would get everything when he died.

Irene Lewis witnessed the joint will in 1956. She testified that Louis and Edna read the will to her and she saw it briefly. It provided that “the survivor would take all the property and leave it to the girls.” Irene and two other persons witnessed the will at Louis’ and Edna’s request.

Daniel Roussos, the divorced husband of Bernice, one of Edna’s daughters, testified that Edna and Louis both told him about the joint will. In 1956 after having an operation for cancer, Edna told Bernice and Daniel that she and Louis made a joint will and the survivor would leave everything to the three girls. She said the will was “irrevocable” and Louis agreed. They said they would not change the will. Over the years, Louis and Edna repeated this conversation, when they were together with Daniel and also when they were alone with him.

The Reverend Schulz, Edna’s minister, testified that Louis told him that he and Edna planned to devise all their property to the three girls. He said he understood Edna and Louis had a written or oral agreement to that effect. Edna mentioned the agreement to him three days before she died.

Since the alleged agreement to make the 1956 joint will occurred prior to the adoption of Florida statutes 731.051 (1957), Louis and Edna were able to orally contract as to the disposition of their property by will. However, their agreement must be established by clear and convincing evidence and the proof should include evidence the parties knew or understood that one of them could not unilaterally revoke the joint will. In this case the evidence showed quite clearly the terms of the agreement and the parties’ understanding that it was irrevocable.

In Weiss v. Storm, 126 So.2d 295 (Fla. 1st DCA 1961) the appellate court upheld a lower court’s finding that there was a binding contract to make a will between the two testators. The record was much sparser than in the present case. The Storm court relied primarily upon the facts and circumstances surrounding the execution of the joint and mutual will. Like Louis and Edna, the Storms entered into a “second” marriage. One testator was concerned to see that his children by a prior marriage inherited. The will provided the survivor would take all the property and then leave it to the four children of the husband. The husband died first and the step-parent changed her will. Going on little more than those facts and the joint will itself, the Storm court held the evidence of the contract was sufficient:

The will itself, however, compels the inference that the underlying purpose of the testators was to carry out their agreement to make the will, and is supported by other testimony in the record.
While the act of making a joint will, standing alone, is not in itself evidence of a contract, the terms of such will may disclose so clearly that it is the product of a contract between the parties that the will itself is sufficient evidence to establish a contract. (Citations omitted.)

126 So.2d at 297 and 298. Like Mr. Storm, Edna died relying upon the agreement and joint will. But unlike the Storm case, there were four disinterested witnesses who testified about Edna’s and Louis’ agreement to make the joint will and there was uncontro-verted testimony as to their mutual understanding and intent that it was irrevocable. Because the record sustains the lower court’s findings, we affirm.

AFFIRMED.

COBB, J., concurs.

DAUKSCH, C. J., dissents with opinion.

DAUKSCH, Chief Judge,

dissenting:

I respectfully dissent. In my opinion the evidence before the trial court was legally insufficient to prove the decedents had entered into a binding agreement to never revoke their wills. The trial judge tried this case entirely upon documentary evidence and depositions, all of which we have reviewed. There is no question the will was executed. There is no question all wills are revocable and if revoked, cannot be enforced. This is not a will case, it is a contract case because it is the agreement not to revoke the will which is to be enforced. I read the same evidence the trial judge and the majority of this court read; I read the same cases cited as authority, and based upon that evidence and those cases, I would reverse. The evidence must be clear and convincing, not merely a preponderance, and it seems to me it takes a lot of proving to establish in 1980 that an oral agreement made in 1956, some 24 years earlier, lasted until 1967 when Edna died.

The estate of Louis Somogyi should be distributed in accordance with his valid Last Will and Testament.

      . Keith v. Culp, 111 So.2d 278 (Fla. 1st DCA 1959); Martel v. Carlson, 118 So.2d 592 (Fla. 3d DCA 1960).

      . Hagen v. Laragione, 205 So.2d 289 (Fla.1967).


author: GRIMES, Judge.

text:
    Thomas N. LINTON, Appellant, v. PENSION SERVICES CORPORATION, a Florida Corporation, Appellee.
    No. 79-1406.
    District Court of Appeal of Florida, Second District.
    Sept. 24, 1980.
    Rehearing Denied Oct. 23, 1980.

      Ira M. Seidler, St. Petersburg, for appellant.
    Peter H. Dubbeld and Neil G. Kiefer, of Brown, Watson, Goldstein & Douglass, St. Petersburg, for appellee.
   GRIMES, Judge.

When Pension Services Corporation terminated the employment of Thomas Linton, a dispute arose between Linton and the corporation over the amount of compensation owed him. This appeal is a result of that dispute.

Mr. Linton began working for the corporation late in 1976 under an employment agreement, the pertinent provisions of which were as follows:

5. COMPENSATION OF EMPLOYEE : One hundred fifty dollars ($150.00) per week plus commissions as follows:
a. A commission of twenty five percent (25%) of the total first year billing on new business brought in by the employee.
b. A bonus of fifteen percent (15%) of the dollar amount of the employee time billed on new business brought in by someone else.
c. A bonus of fifteen percent (15%) of the dollar amount of the employee time billed on business in the second and subsequent years.
The commission and bonus monies shall be accrued when billed and payable to the employee when received. Such monies shall be net of any automobile or other expenses allowed.
New business brought in by the employee shall mean all new business except for that business which is specifically brought in by a different representative of [the corporation] or FINANCIAL PLANNING CONSULTANTS, INC.
6. TERMINATION OF EMPLOYMENT BY EMPLOYER OR EMPLOYEE: The Employer and the Employee may terminate this agreement by giving notice, each to the other, in writing, at least . . . (30) days prior to the termination of employment. Any and all monies not paid at severance will be accrued and payable as per paragraph 5. And a monthly accounting will be.supplied the terminated employee at least every 30 days until all monies are paid out.

On September 28,1977, the corporation terminated Mr. Linton’s employment without any previous notice to him. Thereafter, he filed suit against the corporation, alleging that based on his employment contract it owed him a portion of his salary for October and various commissions. He also alleged that the corporation had breached an agreement to transfer to him ten percent of its outstanding stock. In response to Mr. Linton’s complaint, the corporation alleged that it had paid him advances on his potential commissions and that these advances exceeded the amount of salary and commissions due to him. During the non-jury trial which followed, both Mr. Linton and John P. Larrison, chairman of the board of the corporation, testified concerning the amounts they believed that Linton had earned and had been paid, and they presented worksheets and records to back their opposing contentions. After hearing the evidence, the court entered a final judgment in which it denied Mr. Linton’s claim. In so doing, the court said:

On the issue of damages, the Court would find that there is considerable confusion so far as the records of defendant corporation are concerned. Such records appear to be somewhat [in] disarray and somewhat incomplete. For whatever reason, the Court makes no finding as to who was at fault. The Court recognizes the plaintiff apparently keeps very methodical records for himself, but that the records produced do not form a coherent whole of the financial records of this corporation.

We have carefully studied the testimony of the parties and the exhibits introduced at trial. While we can sympathize with the court’s concern over the confusing state of the financial records presented to it, we think that there was sufficient evidence from which it could have made a determination as to the amount of compensation to which Mr. Linton was entitled. Uncertainty as to the amount of damages for breach of a contract or difficulty in proving the exact amount does not prevent recovery where there is a reasonable basis in the evidence for the amount claimed. The degree of certainty required is only that the mind of a prudent impartial person can be satisfied with the damages. Adams v. Dreyfus Interstate Development Corp., 352 So.2d 76 (Fla. 4th DCA 1977).

Mr. Linton’s compensation depends, of course, on his employment contract. A review of that contract demonstrates that it supports three categories of compensation. The first is salary for the month of October. Since the contract requires thirty days notice prior to the termination of employment, Linton is entitled to receive his October salary since he was terminated without notice at the end of September. The next form of compensation to which he is entitled is the commission on payments received by the corporation which simply had not been computed at the time he left. The third type of compensation is the commission on those accounts billed but not paid as of the time of his termination. This type of commission arises from that part of the agreement which states, “[T]he commission and bonus monies shall be accrued when billed and payable to the employee when received. . . . Any and all monies not paid at severance will be accrued and payable as per paragraph 5.”

Returning to the first category of compensation, the undisputed evidence shows that for each month he worked, the corporation paid Mr. Linton a $650 salary. This was apparently computed at $150 per week for a four and one-third week month. Therefore, Mr. Linton was entitled to $650 as salary for the month of October.

As to the commissions on payments received by the corporation which had not been computed at the time of Mr. Linton’s termination, there is no dispute that he received commissions through June, 1977. However, the parties do dispute the amount of the commissions for July, August and September, 1977. Both Mr. Linton and Mr. Larrison presented figures supported by extensive worksheets. Linton’s computation showed that he was entitled to a commission of $1,764 while Larrison contended that the corporation only owed him $1,187.10. Because the court found against Mr. Linton on his claim, we must resolve this conflict in the evidence by accepting those figures which most support the court’s judgment. Thus, we hold that the corporation owed Mr. Linton only $1,187.10 for his July, August and September, 1977, commissions.

Lastly, we must determine the commissions due on accounts receivable by the corporation at the time of Mr. Linton’s termination. Based on a list of accounts receivable which he presented to the court and which were at least in part supported by documents of the corporation, Mr. Linton contended that he was entitled to a commission of $1,870.20. Nowhere in his testimony did Mr. Larrison dispute the list of accounts receivable. Although there was some contention that the method Linton used in arriving at his commission was not accurate, it does not appear to us to have been unfair, and the corporation presented no evidence which actually demonstrated its inaccuracy. Hence, we find that for the third category of compensation, Mr. Linton was entitled to a payment of $1,870.20.

When the amounts due in each of the three categories are added together, the total amount due becomes $3,707.30. From this sum must be subtracted $1,244.04 which the evidence showed Mr. Linton had received as advances on commissions and $325 which he received as severance pay. That being accomplished, the amount to which Mr. Linton is entitled as compensation is $2,138.26. We reverse the judgment of the trial court and remand the case with directions that it enter a judgment in Mr. Linton’s favor in that amount.

SCHEB, C. J., and HOBSON, J., concur.

      . The trial court ruled against Mr. Linton on the stock issue, and he does not challenge the court’s ruling in this appeal.

      . There was no dispute as to the amount of compensation Linton had actually received.

      . One reason that the corporation may not have made a more concerted effort to dispute Mr. Linton’s figures was that it apparently believed that the employment contract did not support an award of commissions on accounts receivable by the corporation at the date of Mr. Linton’s termination. This contention is without merit because, as we earlier noted, the contract states that all commission and bonus monies are accrued at the time when they are billed.


author: HOBSON, Acting Chief Judge. GRIMES, Judge,

text:
    Eugene KELLY, Appellant, v. STATE of Florida, Appellee.
    No. 79-2117.
    District Court of Appeal of Florida, Second District.
    Sept. 24, 1980.
    Rehearing Denied Oct. 27, 1980.
    Jack O. Johnson, Public Defender, Bar-tow, and Allyn Giambalvo, Asst. Public Defender, St. Petersburg, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Eula Tuttle Mason, Asst. Atty. Gen., Tampa, for appellee.
   HOBSON, Acting Chief Judge.

Appellant was charged by information with aggravated battery. After the defense had rested, defense counsel requested the trial judge to instruct the jury on the maximum sentence which could be imposed for the offense charged. The trial judge denied the request; however, the defense counsel did not object to the denial. Subsequently, counsel for the defendant repeated his request and it was again denied without objection. Appellant urges that the refusal to give the requested instruction constituted error. Appellee counters that, without an objection, appellant failed to preserve the error, if any, for review. We agree with the appellee and affirm.

Initially, we must agree with appellant that a trial judge’s failure to give a requested instruction on the maximum and minimum sentence for the offense charged constitutes error. Tascano v. State, No. 55,394, — So.2d -(Fla. June 5, 1980). However, an appellate court must restrict itself to a review of those questions properly preserved for appeal.

Florida Rule of Criminal Procedure 3.390(d), provides that a party must object to the giving or the failure to give a requested instruction. Furthermore, that rule requires the objecting party to distinctly state the grounds for his objection. In this same vein, our supreme court noted in Castor v. State, 365 So.2d 701 (Fla.1978), that a timely objection is required where the error relates to the giving or failing to give a particular jury instruction.

In the instant case, although defense counsel twice requested the instruction concerning maximum penalties, he neither objected to the court’s refusal to give the instruction nor stated the grounds upon which his request was made. Therefore, appellant did not preserve this issue for appeal. Accordingly, the judgment and sentence of the circuit court is affirmed.

CAMPBELL, J., concurs.

GRIMES, J., concurs specially with opinion.

GRIMES, Judge,

concurring specially.

In a case such as this where the court has specifically denied a requested instruction and it is apparent why appellant wished to have the instruction given, I see little purpose in requiring appellant then to make a specific objection in order to protect the record. However, Rule 3.390(d) is quite specific, and the supreme court held in Tas-cano that only those who preserved the point on appeal were entitled to the benefit of a retroactive interpretation of the principle established in that case.

      . Appellant also argues that the trial court erred in denying his motion to dismiss on the grounds of double jeopardy and failing to instruct the jury on the lesser included offenses of simple assault and simple battery. We find that both of these arguments are without merit. The latter point is controlled by State v. Abreau, 363 So.2d 1063 (Fla.1978).


author: SHIVERS, Judge.

text:
    Rodney Eugene SCHEIDER, Appellant, v. STATE of Florida, Appellee (two cases). David Rand PAGAN, Appellant, v. STATE of Florida, Appellee. Robert Gregory SCHEIDER, Appellant, v. STATE of Florida, Appellee.
    Nos. NN-153, NN-154, NN-226 and NN-227.
    District Court of Appeal of Florida, First District.
    Sept. 25, 1980.
    Rehearing Denied Oct. 20, 1980.

      Hugh A. Carithers, Jr. of Sheppard, Car- . ithers & Weinbaum, Jacksonville, P.A., for appellants.
    Jim Smith, Atty. Gen., David P. Gauldin, Asst. Atty. Gen., Janis R. Forer, Legal Intern, for appellee.
   SHIVERS, Judge.

Defendants below appeal judgments and sentences, after pleas of nolo contendere, for possession of controlled substances.

We affirm the trial court.

Defendants were arrested pursuant to a search warrant which in turn grounded its probably cause on information gained from a wiretap. They contend the trial court erred in denying their motion to suppress the fruits of the wiretap because the police failed to use sufficient “other investigative techniques” before seeking court authorization for the interception.

§ 934.09(l)(c), Fla.Stat. (1977) requires that any application for authorization to intercept wire or oral communications must contain:

. a full and complete statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous.

The application for authority to intercept in this case fulfills the statutory requirements.

First, it discusses the limited investigative procedures which were used, and explains why they were insufficient. It shows that continuance of the surveillance which had been briefly attempted would be unavailing, states that the conspirators are alerted to the law enforcement effort against them, and declares that further attempts to contact known associates of the conspirators would only jeopardize the overall situation.

Second, the application explains why other methods would likely be unsuccessful. It states that the person whose phone was sought to be tapped was in the middle of a large drug conspiracy; that normal investigative procedures would continue to be unproductive because of the clandestine and widespread nature of the criminal conspiracy; and that because of the tightness of the group, infiltration would not work.

The application tells why issuing subpoenas or granting immunity would not only have been useless but would more likely have been detrimental, and concludes that electronic surveillance through wire interception is the only remaining effective alternative.

It is evident this wiretap authorization was not routinely requested as an initial step in a criminal proceeding. The application shows why traditional techniques would not suffice to expose the crime. United States v. Kahn, 415 U.S. 143, 94 S.Ct. 977, 39 L.Ed.2d 225 (1974).

The purpose of the Federal Statute [18 U.S.C. § 2518(l)(c)], which is substantially similar to our Florida Statute, § 934.-09(l)(c), is not to require that electronic surveillance be foreclosed until every other ' imaginable method of investigation has been unsuccessfully attempted, “but simply to inform the issuing judge of the difficulties involved in the use of conventional techniques.” United States v. Pacheco, 489 F.2d 554, 565 (5th Cir. 1974); United States v. Alfonzo, 552 F.2d 605, 611 (5th Cir. 1977); Cuba v. State, 362 So.2d 29, 32 (Fla. 3d DCA 1978), cert. denied 378 So.2d 344 (Fla.1979).

The State’s application was no mere “boilerplate recitation of the difficulties of gathering usable evidence,” as defendants argue. Although it is clear that the facts set out in the previous investigation (upon which an earlier wiretap order was based) form a part of the application here, this does not invalidate the second affidavit. The second affidavit contains additional facts regarding the conspiracy, as well as a description of the subsequent attempts to investigate, and an explanation of why other investigative techniques would not work here. Those statements are sufficient. See Cuba v. State, supra.

Appellee State contends the appellants lack standing to contest the wiretap order since appellants have failed to show a property or possessory interest in the tapped phone. We find that appellants have standing. Under Alderman v. United States, 394 U.S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969) and State v. News-Press Publishing Co., 338 So.2d 1313 (Fla. 2d DCA 1976), an individual may attack the validity of any wiretap ordered, if it intercepts telephone conversations to which he is a party, regardless of proprietary interest.

The trial court did not err in denying the motion to suppress.

AFFIRMED.

MILLS, C. J., and LARRY G. SMITH, J., concur.


author: HENDRY, Judge.

text:
    MIAMI-DADE WATER AND SEWER AUTHORITY and National Construction Corporation of Florida, Appellants, v. PROGRESS SUPPLY, INC., et al., Appellees.
    No. 79-290.
    District Court of Appeal of Florida, Third District.
    Sept. 30, 1980.

      Joe N. Unger, Maurice Jay Kutner, Miami, Anthony R. Silva, Coral Gables, for appellants.
    Hall & Hauser and Gail V. Ferrington, Miami, for appellees.
    Before HENDRY, NESBITT and BAS-KIN, JJ.
   HENDRY, Judge.

Appeal is taken from a final summary judgment rendered adversely to National Construction Corporation of Florida (National), which seeks to recover a bad debt loss by recourse to a payment and performance bond issued by Travelers Indemnity Company (Travelers) to Progress Supply, Incorporated (Progress). National argues that the lower court’s reading of the law upon which its summary judgment issued was erroneous; it argues alternatively that summary disposition of the case was inappropriate, because an unresolved question of material fact was validly raised. Appel-lees Travelers and Progress cross-appeal on the basis that their attorney fee award was legally inadequate. For the following reasons, we affirm on all issues raised.

Appellant was hired to haul fill to the site of a Miami-Dade public works project. Its immediate employer was South Florida Trucking Company (South Florida), a truck broker itself engaged by R.A.E. Contractors (R.A.E.). R.A.E. was a subcontractor of Progress, the general contractor. When South Florida failed to fully pay National for its services, National sought recourse to the bond executed by Progress and Travelers.

Such a bond, statutorily required for all state or local public works projects, § 255.05, Fla.Stat. (1979), serves much the same purpose as the Mechanics’ Lien Law, Sections 713.01-36, Florida Statutes, 1979, which is itself expressly inapplicable to projects on state-or local-governmentally-owned property. § 713.01(14), Fla.Stat. (1979). (Presently, by 1977 amendment, recovery under the bond is available to those persons qualifying as lienors under the Mechanics’ Lien Law. § 255.05, Fla.Stat. (1979). That amendment took effect on January 1, 1978. Ch. 77-81, § 2, Laws of Fla. However, all parties agree that our case is controlled by the law as it stood in 1977.) In 1977, payment under the contractor’s bond was assured to “all persons supplying him labor, material, and supplies, used directly or indirectly by the said contractor or subcontractors . . ..” § 255.05, Fla.Stat. (1977). Thus, by its terms, the statutory provision mandated bond protection only to those servicing contractors or subcontractors. Moreover, Florida caselaw uniformly interpreted the statutory mandate quite narrowly, and denied recovery under the bond to those below the level of sub-subcontractors, or subcontractors’ ma-terialmen. Southwest Florida Water Management District ex rel. Thermal Acoustic Corp. v. Miller Construction Co. of Leesburg, 355 So.2d 1258 (Fla.2d DCA 1978); William H. Gulsby, Inc. v. Miller Construction Co. of Leesburg, 351 So.2d 396 (Fla.2d DCA 1977); North Broward Hospital District ex rel. Southern Insulation Corp. v. Crosewell, 188 So.2d 54 (Fla.2d DCA 1966); City of Fort Lauderdale ex rel. Bond Plumbing Supply, Inc. v. Hardrives Co., 167 So.2d 339 (Fla.2d DCA 1964) and Board of Public Instruction, Broward County ex rel. Monmouth Plumbing Supply Co. v. Rood Construction Co., 166 So.2d 701 (Fla.3d DCA 1964), citing federal cases similarly interpreting the Miller Act, 40 U.S.C. § 270a, after which our § 255.05 was patterned.

National would have us disaffirm those decisions on the ground that, in light of the subsequent statutory amendment, they represent a misinterpretation of the legislature’s original intent.

We recognize that
while the views of subsequent [legislatures] cannot override the unmistakable intent of the enacting one, . . . such views are entitled to significant weight, ... and particularly so when the precise intent of the enacting [legislature] is obscure.

Seatrain Shipbuilding Corp. v. Shell Oil Co., 444 U.S. 572, 596, 100 S.Ct. 800, 814, 63 L.Ed.2d 36, 54 (1980). However, the value of such subsequent legislative attention, insofar as it might cast light upon a prior legislative intent, diminishes over time, so that, while

[i]t is an accepted rule of construction that an amendment following soon after a controversy has arisen as to the interpretation of the original act may be construed as explanatory of the ambiguities from which such controversy arose .. .,

In re Honeoye Central School District, Town of Livonia v. Berle, 72 A.D.2d 25, 423 N.Y.S.2d 336, 342 (App.Div.1979),

the views of one [legislature] as to the construction of a statute adopted many years before by another [legislature] have “very little, if any, significance.”

United States v. Southwestern Cable Co., 392 U.S. 157, 170, 88 S.Ct. 1994, 2001, 20 L.Ed.2d 1001, 1012 (1968) (Harlan, J.).

The language limiting recovery to servi-cers of contractors and subcontractors had been unchanged since its adoption in 1963, Ch. 63-437, § 1, Laws of Fla.; the 1963 enactment was itself a restatement, rather than amendment, of terms adopted by the 1925 Legislature.

We are not disposed to view the Legislature’s 1977 amendment as anything less that a clear divergence from prior law. Whatever its virtues, its retroactive application would be inappropriate.

National argues that, in any event, summary disposition of the case was inappropriate, because a genuine issue of material fact was timely raised. It contends that South Florida and that firm’s employer, R.A.E., were sufficiently interrelated to consider National’s status as that of supplier of services to R.A.E., rather than to South Florida. Such a finding would bring National within the purview of the bond’s coverage.

Unfortunately, the deposition which clearly raises this question of fact was not made a part of the record before the trial court at the time summary judgment was entered. That deposition, taken November 21, 1978, was not transcribed until January 25,1979, and was not submitted to the court until four days thereafter. Final summary judgment issued on December 13, 1978, and rehearing was denied January 11, 1979. Motion to Set Aside Summary Judgment, and Motion to Supplement the Record with the deposition were not made until January 26, 1979. Those motions were denied on February 9, 1979. National admits that denial of the two motions was properly within the discretion of the trial court, but contends that sufficient indicia of the purported relationship between South Florida and R.A.E. existed in the record, exclusive of the deposition, and that the pleadings adequately raised the question.

We must disagree. After careful scrutiny of the voluminous record, we find that the question of fact was not raised until the ill-fated deposition was submitted to the court; the trial court was completely within the ambit of its authority in refusing to set aside its judgment, Schwab & Co. v. Breezy Bay, Inc., 360 So.2d 117 (Fla.3d DCA 1978); we must affirm.

Finally, we find the cross-appeal to be without merit.

Affirmed.

      . Miami-Dade Water and Sewer Authority is a nominal co-appellant for the use and benefit of National, the actual party-at-interest.

      . We note, by reference to the language contained in the bond instrument itself, that it provided coverage only for that group of claimants statutorily defined.

      . The statutory language regarding “labor, material and supplies, used . .. indirectly” was construed to refer to such ingredients of the process of construction as are used up in that process, e. g., gasoline, as opposed to those ingredients physically incorporated into the final product. City of Fort Lauderdale ex rel. Bond Plumbing Supply, Inc., supra, 167 So.2d at 341.

      . “[S]uch contractor, or contractors, shall promptly make payments to all persons supplying him, or them, labor, material and supplies, used directly or indirectly by the said-contractor, contractors, sub-contractor or sub-contractors in the prosecution of the work ... .” Ch. 10035, Laws of Fla. (1925).


author: DANIEL S. PEARSON, Judge. BARKDULL, Judge,

text:
    Elizabeth Anne LEONARD, Appellant, v. William LEONARD, Appellee.
    No. 79-1756.
    District Court of Appeal of Florida, Third District.
    Sept. 30, 1980.
    Rehearing Denied Nov. 7, 1980.
    Joe N. Unger, Miami, Harvey Richman, Miami Beach, for appellant.
    Lapidus & Stettin and Richard L. Lapi-dus, Miami, for appellee.
    Before BARKDULL, HUBBART and DANIEL S. PEARSON, JJ.
   DANIEL S. PEARSON, Judge.

The narrow issue on this appeal is whether, upon dissolution of the marriage between the parties, Mrs. Leonard was entitled to be awarded a one-half interest in a houseboat titled in their joint names, or, as the trial court concluded, the mere sum of $8,600 (plus interest) which she contributed to the construction of the houseboat and which the trial court found to be her “special equity.”

The trial court arrived at its conclusion by finding (a) that the husband contributed all but $8,600 to the acquisition and construction of the houseboat; and (b) that when the houseboat was titled in the joint names of the parties, it was done at the instance of a lender bank, and no gift of a one-half interest to the wife was intended by the husband. Both of these findings are amply supported by the evidence. Neither finding, however, supports the trial court’s decision to award the houseboat to the husband. The reason is that the trial court, disregarding the teachings of Ball v. Ball, 335 So.2d 5 (Fla.1976), and its progeny, began with the wrong inquiry leading it inexorably to the wrong conclusion.

The teaching of Ball v. Ball, supra is that record title is the starting point for the division of property. In the present case the record title to the houseboat showed it to be in the joint names of the husband and wife. In order for the husband to be entitled to more than his record title one-half interest, it is incumbent on him to establish a special equity. This special equity could be established by a showing that “the consideration for property'held as tenants by the entireties was supplied by one spouse from a source clearly unconnected with the marital relationship,” Ball v. Ball, supra, at 7 (emphasis supplied); Mitchell v. Mitchell, 368 So.2d 628 (Fla. 4th DCA 1979); Forehand v. Forehand, 363 So.2d 829 (Fla. 1st DCA 1978); Merrill v. Merrill, 357 So.2d 792 (Fla. 1st DCA 1978). But a showing that property held as tenants by the entire-ties was acquired from a source connected with the marriage, that is, the husband’s earnings during coverture, does not establish this special equity. Ball v. Ball, supra, at 7, fn. 7; Holbrook v. Holbrook, 383 So.2d 981 (Fla. 4th DCA 1980); Smith v. Smith, 378 So.2d 11 (Fla. 3d DCA 1980); Fiedler v. Fiedler, 375 So.2d 1119 (Fla. 2d DCA 1979).

In the present case no showing was made that the consideration paid by the husband for the houseboat in question was from a source clearly unconnected with the marriage. The absence of that required showing means that the husband did not establish a right to any portion of the wife’s record title one-half interest in the houseboat.

This is where the appropriate inquiry would have ended. The inquiry into whether a gift was intended (the trial court’s starting point) is, under Ball, only made after one party first establishes his or her right to a special equity in the entireties property. It is only at that point that the other party can attempt to show that despite the fact that his or her spouse contributed a disproportionate share of non-marital funds to the acquisition, the contributing spouse intended to make a gift when title was placed in both names. In sum, Mrs. Leonard, by virtue of the record title, is entitled to one-half of the property; if Mr. Leonard had established a special equity, which he did not, only then would he have have been entitled to a portion of the wife’s one-half interest to the extent of his special equity. Only had that occurred would Mrs. Leonard, in order to retrieve her one-half share, have had to establish that her husband intended to make a gift to her when the property was placed in their joint names. That burden never became hers to satisfy.

Accordingly, we reverse that portion of the Final Judgment of Dissolution which orders (a) William Leonard to pay to Elizabeth Anne Leonard the sum of $8,600 plus interest, that is, $10,664; (b) William Leonard to cause the Jefferson National Bank to release Mrs. Leonard from liability on the note secured by the houseboat; and (c) Elizabeth Anne Leonard to transfer her interest in the houseboat to William Leonard. We remand the cause to the trial court with directions to revise the final judgment so as to declare Elizabeth Anne Leonard an owner of a one-half interest in the houseboat.

Reversed.

BARKDULL, Judge,

dissenting.

I must dissent from the majority herein. The final judgment of dissolution entered by the trial judge reads, in part, as follows:

Petitioner and Respondent were married in Miami, Dade County, Florida, on October 18, 1973 and separated on September 1st, 1978. There are no children born of the marriage. The marriage is irretrievably broken. During the course of the marriage, Petitioner/Wife has been employed and is presently self-supporting. She makes no claim for alimony or other support. She presently earns $18,500.00 per year. In 1978, she earned $32,300.00 per year. She has $10,000.00 in a savings account and a money market certificate in the amount of $15,000.00. The Financial Affidavit she has filed with this Court reflects assets of $45,000.00 and no debts. Mrs. Leonard testified that she contributed $8,600.00 towards the building of a houseboat titled in the name of both parties jointly. The balance of the funds for the houseboat came from WILLIAM LEONARD. Although both parties signed a mortgage and note with the Jefferson National Bank, the bank has indicated that they will release Mrs. Leonard from her liability on the mortgage and note. There is no question from the testimony that the bulk of the monies for construction of the houseboat came from WILLIAM LEONARD. Although Mr. Leonard contributed the bulk of the monies for the houseboat and originally had the boat titled in his name, Jefferson National Bank, the lender, requested that the title be transferred to the joint names of Husband and Wife to avoid any potential problem with the lien they were acquiring on the boat. This testimony is unrefuted. Mr. Leonard clearly did not intend to make a gift to Mrs. Leonard of a one-half interest in the houseboat. This Court finds, however, that she did contribute $8,600.00 towards the houseboat. On the authority of Ball v. Ball, 335 So.2d 5 (Fla.S.Ct.1976) and Mitchell v. Mitchell, 368 So.2d 628 (Fla. 4th DCA 1979), ELIZABETH ANNE LEONARD has a special equity in the houseboat to the extent of $8,600.00 plus accrued interest on the monies she advanced of $2,064.00 for a total of $10,-664.00.
ORDERED and ADJUDGED as follows:
1. That the bonds of marriage between Petitioner, ELIZABETH ANNE LEONARD, and Respondent, WILLIAM LEONARD, are dissolved because the marriage is irretrievably broken.
2. WILLIAM LEONARD is ordered to pay within thirty (30) days of this Order to ELIZABETH ANNE LEONARD the sum of $10,664.00, and to cause the Jefferson National Bank to release ELIZABETH ANNE LEONARD from her liability on the note secured by the houseboat. ELIZABETH ANNE LEONARD is ordered to transfer to WILLIAM LEONARD her interest, upon said payments in the houseboat titled under Florida Title No. 510502.

On this appeal, the wife contends that the trial court erred in not awarding her one-half interest in the houseboat. I disagree and would affirm. See: Forehand v. Forehand, 363 So.2d 829 (Fla. 1st DCA 1978); Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980). It is clear from the finding of the trial judge that title to the houseboat would have remained solely in the husband but for the requirement of the bank that the title be placed in both names at the time of a loan to the husband. The bank has agreed to release the wife from the obligation on the loan and the trial judge has adequately returned to her the funds advanced by her toward the improvement of the houseboat, and I think the matter is controlled by Forehand, supra.

Therefore, I would affirm the final judgment here under review.

      . The value of the houseboat, according to Mrs. Leonard, was $150,000 to $175,000 and, according to Mr. Leonard, was $85,000 to $95,000.

      . The houseboat is personalty. Concededly, Ball dealt with real property held as tenants by the entireties, but subsequent decisions have applied the principle announced in Ball to personalty. See Smith v. Smith, 378 So.2d 11 (Fla. 3d DCA 1980); Snider v. Snider, 371 So.2d 1056 (Fla. 3d DCA 1979); Mitchell v. Mitchell, 368 So.2d 628 (Fla. 4th DCA 1979).

      . Mrs. Leonard argues that it is her husband’s burden to show that “ail ” of the consideration came from him. She relies on Baits use of that word. In Bali, the reference to “all” was a reference to the facts of that case. Obviously, a party can establish a special equity by showing a less-than-all contribution. If not, then the use of any funds connected with the marital relationship to acquire property, no matter how insignificant, would defeat a special equity.

      . In Holbrook, the court rejected the wife’s claim to a special equity in property jointly owned with her husband where her claim was based simply on the fact that her earnings during the marriage were greater than the husband’s.

      . In Smith, supra, at 18, we reversed the trial court’s determination that the wife had no interest in jointly titled shares of stock acquired from funds earned by the husband during the marriage.

      . In Fiedler, the court specifically read Ball to mean that earnings of one spouse during the marriage are not unconnected with the marital relationship simply because they are devoted to the purchase of a piece of property while the other spouse’s earnings are used in day-to-day living.

      . The husband made no effort to show that the funds used to purchase the houseboat were moneys he brought with him to the marriage. Indeed, he testified that in large part the moneys used for the purchase came from cashing his salary checks, that he had no personal checking account apart from the joint account he maintained with Mrs. Leonard from which other payments towards the boat were made, and that Mrs. Leonard’s earnings went into this joint account. Significantly, his own counsel elicited from him that the money for the houseboat came substantially from his “earnings at the time." Finally, the husband does not argue on this appeal that he has in any way demonstrated that the moneys used by him were from a source clearly unconnected with the marriage.

      . The husband made no claim in the trial court that he was entitled to the wife’s interest in the houseboat as an award of lump sum alimony, nor would such a claim have been here justified. Thus, there is no basis for affirming the trial court for arriving at the correct result for the wrong reason. See Duncan v. Duncan, 379 So.2d 949 (Fla.1980).

      . This presumably would have been all of her one-half interest less the $8,600 found to have been contributed by her.