## Facts

- Patricia Stuart Gilbert’s will gave all of her jewelry and clothing to her sister.
- In the next article, the will directed that one-third of Gilbert’s estate (excluding the specifically devised jewelry and clothing) be “liquidated and reduced to cash” and distributed among numerous named charities in stated shares.
- A later article devised the residue of Gilbert’s estate to the residuary beneficiaries.
- The will did not address who should receive income generated by estate assets between Gilbert’s death and the time of distribution.
- During administration, the estate earned income.
- The personal representative and the residuary beneficiaries petitioned for construction of the will and argued that, under Florida Statutes § 738.05(2)(b) (1989), the charities were “devisees of pecuniary bequests not in trust” and therefore were excluded from receiving estate income earned during administration.
- The probate court ruled for the charities and held they could share in the administrative-period income.
- The personal representative and residuary beneficiaries appealed.

## Issues

1. Whether the will’s direction to liquidate one-third of the estate into cash for distribution to charities created “pecuniary bequests not in trust” under Florida Statutes § 738.05(2)(b) (1989).
2. If the charitable gifts were pecuniary bequests not in trust, whether § 738.05(2)(b) barred the charities from sharing in income earned during estate administration when the will was silent on income allocation.

## Decision

- The District Court of Appeal reversed the probate court.
- The court held that the charitable beneficiaries’ gifts—one-third of the estate to be liquidated and paid in cash in specified shares—were pecuniary bequests not in trust within the meaning of § 738.05(2)(b).
- Because the will did not provide a different allocation of administrative-period income, the statute controlled.
- As devisees of pecuniary bequests not in trust, the charities were not entitled to share in income earned during administration; that income was allocated to the other devisees permitted to receive it under the statutory scheme, including the residuary beneficiaries.

## Legal Principles

- When a will does not specify how to allocate income earned after death and before distribution, Florida’s Principal and Income Law supplies default rules for determining and distributing that income. See § 738.05(2), Fla. Stat. (1989).
- Under § 738.05(2)(b), devisees generally share in estate income during administration except “devisees of pecuniary bequests not in trust.”
- A testamentary gift measured by a fraction of the estate may be treated as a pecuniary bequest for purposes of § 738.05(2)(b) when the will requires liquidation and payment in cash, rather than distribution of identified assets or a true residuary share.
- When a beneficiary’s interest falls within the statutory category “pecuniary bequests not in trust,” that beneficiary does not participate in administrative-period income absent a contrary direction in the will.

## Conclusion

The appellate court concluded that Gilbert’s instruction to liquidate one-third of her estate and distribute the proceeds among named charities created pecuniary bequests payable in cash, not residuary gifts. Because the will was silent on income allocation, § 738.05(2)(b) governed, excluding the charities—as devisees of pecuniary bequests not in trust—from sharing in income earned during administration, and requiring that income to go to the residuary beneficiaries and other qualifying devisees.


Stuart v. Society of the New York Hospital, Inc. (In re Estate of Gilbert), 585 So. 2d 970 (1991)