In re Estate of Potter - 469 So. 2d 957 (Fla. Dist. Ct. App. 1985)

Rule:

Under the common law and under the probate laws of Florida, the first assets of the estate to be applied to the payment of debts and costs are those charged by the testator with this particular indebtedness; next, the assets not devised; then the assets found in the residuary clause of the will are applied. If these assets are insufficient, or if there is no residuary clause or undevised estate, then general legacies must abate pro rata to make up the deficiency.

Facts:

Pursuant to a will, appellant daughter, Helen, was to inherit the decedent's residence, and pursuant to an inter vivos trust, the decedent's son, Edwin, was to have cash equal to the value of the residence. However, there were insufficient assets in the trust to pay such a sum. Therefore, the trial court ordered the sale of the residence, the payment of taxes and all administration expenses, and the division of the remainder equally between the son and Helen. Helen challenged the order. 

Issue:

Was the trial court’s order for the sale of the residence in order to satisfy the son’s legacy proper?

Answer:

No

Conclusion:

The court held that the trust was incorporated by reference into the will and that the instruments should have been construed together in determining the decedent's intent. Thus, the law concerning devises and abatement governed the disposition of the challenge and was dependent upon whether the devises were specific or general legacies. The court found that the trust provision in favor of the son was a general legacy while the will provision in favor of Helen was a specific legacy. Therefore, the court found that Helen should have received the residence because the son's legacy abated prior to Helen’s. Accordingly, the court reversed the judgment and remanded for further proceedings.