## Facts

- Mildred D. Potter executed a will and a contemporaneous inter vivos trust amendment as part of an estate plan for her two children, Helen Potter Wanke and Edwin E. Potter, Jr.
- The will specifically devised Potter’s residence at 14 Sunset Lane, Pompano Beach, Florida, and its contents to Helen if Helen survived her.
- The will expressly directed that property specifically devised was to pass to the named beneficiaries free of administration expenses and estate and inheritance taxes, and was not to be treated as an asset in the executor’s hands for those purposes.
- The trust amendment provided that if Helen took the residence under the will, the trustee would pay Edwin an “equivalent amount” from trust assets before dividing the remaining trust assets between the two children.
- The trust also provided for payment of the estate’s debts, administration expenses, and taxes, and the will authorized the executor to request funds from the trust if needed.
- Potter’s husband predeceased her, so the specific devise to Helen and the trust’s “equivalent amount” provision for Edwin became operative at Potter’s death.
- Trust assets were insufficient to pay Edwin the full “equivalent amount” of the residence.
- The personal representative petitioned the probate court for instructions; the trial court ordered the residence sold, directed payment of estate expenses and taxes, and ordered the remainder divided equally between Helen and Edwin.
- Helen appealed, arguing the residence was a specific devise insulated from sale to satisfy Edwin’s shortfall and from estate expenses and taxes.

## Issues

1. Whether the probate court could order sale of a specifically devised residence to equalize distributions between siblings when a related trust lacked sufficient assets to fund a cash “equivalent amount” provision.
2. Whether the trust’s “equivalent amount” gift to the son was a general legacy that must abate before the daughter’s specific devise under Florida abatement rules.
3. Whether an inferred intent of equal treatment could override explicit directions that specific devises pass free of administration expenses and death taxes.

## Decision

- The Fourth District Court of Appeal reversed the order requiring sale of the residence and equal division of proceeds.
- The court held the devise of the residence to Helen was a specific devise, while the trust’s direction to pay Edwin an “equivalent amount” from trust assets was a general legacy.
- Applying Florida abatement rules, the court ruled that general legacies abate before specific devises when assets are insufficient.
- The court remanded for proceedings consistent with recognizing Helen’s right to take the residence and requiring any shortfall to fall on Edwin’s general legacy rather than on the specific devise.

## Legal Principles

- A specific legacy/devise is a gift of particularly designated property that is satisfied only by delivery of that identified property.
- A general legacy is a gift payable from general assets (including a general direction to pay a money amount from a fund or corpus not tied to a particular asset).
- Under Florida abatement law, general devises/legacies abate before specific devises/legacies; specific property is reached last when satisfying competing claims and dispositions.
- Courts give controlling effect to express directions in testamentary instruments allocating the burden of administration expenses and death taxes, rather than reallocating burdens to achieve equality among beneficiaries.

## Conclusion

The appellate court enforced the distinction between specific and general gifts and applied Florida abatement rules to prevent sale of a specifically devised residence to cover an underfunded cash-equalization provision, holding the son’s general legacy must bear the deficiency while the daughter takes the residence as devised.


In re Estate of Potter, 469 So. 2d 957 (Fla. Dist. Ct. App. 4th Dist. 1985)