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Estate of Potter

    Brief Fact Summary. Decedent’s estate was insufficient to cover both a specific legacy to her daughter and general legacy to her son. The trial court ordered the sale of the specific legacy in order to treat the two children equally. Appellant challenged this order.

    Synopsis of Rule of Law. General legacies, which may be satisfied out of the general assets of the testator’s estate, will abate before specific legacies, which are gifts of a specific property.

    Facts. Mildred D. Potter died testate with a will that provided that if her daughter survive her then her residence in Florida shall be pass to her. Mrs. Potter also executed a amendment to her preexisting inter vivos trust and provided that if her daughter did receive the residence that her trustee shall pay to her son, Edwin E. Potter, an equivalent amount out of the trust assets. When Mrs. Potter died there were insufficient assets in the trust to pay Mrs. Potter’s son an equivalent amount. The trial court interpreted the will and trust as intending to treat Mrs. Potters two children equally and ordered the sale of the residence and payment to the children in equal amounts. Appellant challenged this order.

    Issue. Was the trial court correct in ordering the sale of the residence to provide for an equal amount distributed to each child of the decedent?

    Held. No. Reversed and Remanded. The trust provision in favor of Mrs. Potter’s son was a general legacy and the will provision in favor of her daughter was a specific legacy. General legacies will abate prior to specific legacies and therefore the residence should go the Mrs. Potter’s daughter.

    Discussion. A specific legacy is a gift of property which is particularly designated and which is satisfied only be the receipt of the particular property described in the will. General legacies are those which may be satisfied out of the general assets of the testator’s estate instead of from any specific fund or thing. The Court here is of the opinion that general legacies abate, or reduce on account of insufficiencies in the estate, before specific legacies.


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