McLemore v. McLemore

675 So. 2d 202, 1996 WL 291945
CourtDistrict Court of Appeal of Florida
DecidedJune 4, 1996
Docket95-504
StatusPublished
Cited by9 cases

This text of 675 So. 2d 202 (McLemore v. McLemore) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
McLemore v. McLemore, 675 So. 2d 202, 1996 WL 291945 (Fla. Ct. App. 1996).

Opinion

675 So.2d 202 (1996)

L.B. McLEMORE, Grace B. Johnson and Klenton LeGrand McLemore, Appellants,
v.
Penny McLEMORE and Klenton T. McLemore, also known as Klint McLemore, also known as K.T. McLemore, Appellees.

No. 95-504.

District Court of Appeal of Florida, First District.

June 4, 1996.

*203 Douglas W. Gaidry of Law Offices of Ben Watkins, Apalachicola, for Appellants.

Jeffrey P. Whitton, Panama City, for Appellees.

JOANOS, Judge.

This case concerns a quiet title action in which appellants, plaintiffs in the lower tribunal, sought to quiet title to five parcels of property conveyed to McLemore's Trust. The issues presented are whether the trial court erred (1) in declaring McLemore's Trust void for indefiniteness, and (2) in denying the request to quiet title in appellants to certain lands in Gulf County, Florida. We affirm in part and reverse in part.

Appellees, Penny McLemore and Klenton T. McLemore, were named as defendants in the action to quiet title. At the time of the creation of the alleged trust, appellees were married to each other. A final judgment of dissolution of their marriage was entered March 17, 1983.[1]

Appellee Klenton T. McLemore answered the complaint to quiet title, admitting all allegations of the complaint. Appellee Penny McLemore answered, denying all material allegations, and asserting affirmative defenses. Penny McLemore also filed a counterclaim and cross-claim, to quiet title to her of lands described as Parcel I and Parcel III in the Order of Equitable Distribution.[2] Thereafter, appellants were permitted to amend their complaint to add a count claiming title by adverse possession.

The record reflects that Klenton T. McLemore, as settlor of McLemore's Trust, signed two trust agreements on June 15, 1978. One document named four of his children as trust beneficiaries; the other document named all seven of his children as beneficiaries. By deeds dated June 22, 1978, two parcels of Gulf County land were deeded to McLemore's Trust. By deeds dated April 17, 1979, three parcels of Gulf County land were deeded to McLemore's Trust. On December 1, 1989, the trustees executed a corrective deed designed to clarify the ownership of the properties.[3] The corrective deed was filed December 27, 1989.[4]

The original trustees of McLemore's Trust were Klenton T. McLemore, Grace B. Johnson, and Lawrence McLemore.[5] In January 1990, Klenton LeGrand (Lee) McLemore succeeded his father, Klenton T. McLemore, as trustee.[6] Lee McLemore identified the seven-beneficiary trust as the document that was attached to the successor trustee document he signed. He stated that this trust document appeared to be a copy. Lee McLemore did not know whether he had ever been shown the original of the seven-beneficiary trust document, and he had no independent knowledge that the seven-beneficiary document represented the operative *204 trust instrument of the McLemore trust. The trial court admitted the successor trustee document into evidence for the limited purpose of showing that it was attached to the designation of successor trustee and recorded in the public records, but not as proof that it was the operative trust instrument.

The trust property was made up of Homewood Subdivision, Sunnywoods Subdivision, the Dixie Dandy building and parking lot, and the Whitechurch property. Lee McLemore stated that roads were put in and trees were sold from Sunnywoods Subdivision; and Homewood Subdivision was registered as a plat, roads were put in, and lands were surveyed. Lee McLemore further testified that property was sold for development in the name of the trust through contracts for deed; and the trust entered into an agreement with the Dixie Dandy store to pay the property taxes for the trust in lieu of rent.

The attorney who prepared the trust instruments for Klenton McLemore in 1978 testified that he prepared two trust documents on the same day, and Klenton McLemore signed both documents on the same day. The first document listed the names of four of Klenton McLemore's children; the second document listed the names of all seven of Klenton McLemore's children. Trustee Lawrence McLemore testified that the beneficiaries of the trust were Klenton McLemore's three sons by his first wife, his three sons by his second wife, and his one son by his third wife, Penny McLemore. In his deposition, Lawrence McLemore identified the four-beneficiary trust document as the McLemore Trust. In later testimony, Lawrence McLemore stated he mistakenly identified the four-beneficiary document as McLemore's Trust, because he believed he was reading the document with seven beneficiaries. The accountant who had prepared tax returns for the trust since 1978 testified that each year, he prepares seven K1 forms, "because there's seven beneficiaries involved in the Trust."

Appellee Penny McLemore testified that she first learned of the existence of the trust in 1980, when she found the document in her house. At that time, she and Klenton McLemore were in the process of dissolving their marriage. She stated she never discussed the trust with Klenton McLemore, and asserted that she signed the deeds at issue in blank.

At the request of the parties, the trial court took judicial notice of the court file in the divorce case. The transcript of the final hearing in that case reflects that Klenton McLemore identified the original of the four-beneficiary trust as the effective trust instrument. At a subsequent hearing in the dissolution case, Klenton McLemore said the document introduced into evidence at the final hearing of the dissolution proceeding was incorrect, because it did not list the names of all of his children.

The trial court found the trust void for indefiniteness, because the settlor's intent as to which trust document was controlling had not been established, and the trust did not identify with certainty the particular person or class necessary to enforce the trust. The trial court further found the plaintiffs could not hold the property as trustees since the trust was invalid. Having determined the trust to be void, the trial court found it unnecessary to reach the question whether McLemore's Trust was a grantee capable of accepting and holding title. The 1978 and 1979 deeds purported to convey the property at issue to McLemore's Trust, rather than to the trustees as grantees.[7] Since the trial court deemed the trust invalid, the court denied appellants' request to quiet title to the five parcels of real property deeded to the trust. The trial court also denied appellants' adverse possession claim, finding no evidence that Penny McLemore was placed on notice of hostile possession or ouster, and that the acts taken in connection with the property constituted ordinary use in connection with land management. The trial court further ordered that the distribution of property deeded into the trust stood as ordered in the Order of Equitable Distribution entered in 1989.

*205 The essential elements of a trust are: (1) the settlor or grantor, (2) the trustee, (3) the beneficiaries, and (4) an indication of the property conveyed for the purpose of the trust. Reid v. Barry, 93 Fla. 849, 112 So. 846, 854 (1927). "The intent to create a trust must be definite and particular," Watson v. St. Petersburg Bank & Trust Co., 146 So.2d 383, 385 (Fla. 2d DCA 1962), and the beneficiaries of a trust must be clearly ascertainable.

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Cite This Page — Counsel Stack

Bluebook (online)
675 So. 2d 202, 1996 WL 291945, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mclemore-v-mclemore-fladistctapp-1996.