IN RE ESTATE OF CORBIN Fla, 39 Cie as645 Sod 39 (Play. 1 Dis. 1994) In re ESTATE OF Hazel Cooper CORBIN, Bill CORBIN, Sr. and Daulton Cooper, Appelants, Betty Guy SHERMAN, Individually and as Personal Representative of the Pstate of Hazel Cooper Corbin and James W. Coo- per ark/a Jimmy Cooper, Appellees. No. 92-1146. District Court of Appeal of Florida, First District. Oct, 24, 1994 Rehearing Denled Dee. 12, 1904 Deceased’s husband moved for removal of personal representative, who was dece- dent's adult child, and for production of as- sets, The Cireait Court, Bay County, Don T. Sirmons, J, validated will and determined decedent's intended distribution of assets. Appeal was taken. The District Court of Appeal, Barfleld, J., hold that: (1) motor hhome and travel trailer were not exempt automobiles; (2) will did not revoke previous- Jy established Totten trusts; (8) document was wil (1) admitting testimony of interest- ed witnesses was error; and (6) attempt to devise property for distribution according to oral instmuetions was invalid. Affirmed in part, reversed in part, and remanded, 1. Bxecutors and Administrators 53 Neither motor home nor travel trailer ‘owned by decedent were exempt “automo biles” under probate statute which permits surviving spouse to claim ownership given, ‘that neither was used as personal vehicle and, thus, both passed under will. West's FSA. § 732.402. See piblcation Words and Phrases for other judicial constructions and def- 2 Hushand and Wife 14.214) Bvidence that ttle to motor home and travel trailer were held exclusively by dece- dent precluded claim by surviving spouse that both were owned in an estate by the entireties, 8. Trusts ©5901) Totten trust ear he revoked by provision of depositor’s valid will which specifically makes different disposition of trust funds or ‘which gives rise to implication that revoca- tion of trust was intended to be aceom- plished, 4. Trusts =59(1) Will language revoking prior testamen- tary dispositions did not revoke testator's previously estahlished Totten trusts; general will language did not manifest intent to re- vvoke and will did not make different dispost- tion of trust funds 5, Wills 69 “Will” inelades instrument which merely appoints personal representative or revokes ‘or revises another will, West's FSA. 8 TBI201G% See publication Words and Phrases for other judicial constructions and det 6, Wills 76, Document that appointed executrix was valid will despite contention that doeament ‘was invalid because no specific devises: were made and that no affirmative disposition of property was made. West's, FSA. § 731.2015). 1, Trusts 87 Admitting and relying on testimony of interested witnesses when determining that testator intended to ereste construetive trust for her husband and adult child was error. West's FSA. § 90.602 8. Wills 73, ‘Will provision which attempted to devise decedent's property to one adult child for distribution according to oral_ instructions from decedent was ineffuctive as testumenta- zy disposition, resulting in intestacy. West's FSA. §§ 732101, 792512, TH2.515,40 Fla 9, Wills 98 Oral wills are not recognized. West's FSA. §§ 73120105), 732.502, Bill A. Corbin, Blountstown, for appellants, Benjarnin W. Redding and Michael J. Hax- versburk of Barron, Redding, Hughes, Fite, Bassett & Fensom, Panama City, for appel- lee James W. Cooper. ‘Timothy M. Warner of Burke & Blue, Pan- ama City, for appellee Sherman. BARFIELD, Judge, Appellants challenge the trial court's vali- dation of deecdent’s wil, exclusion of some property from the estate and use of parol cexidence to determine decedent's intended distribution of her estate, We affirm in part and reverse in part "The decedent died on Decombr 30, 100, ‘She was survived by her spouse, Bill Corbin, Sr, and three adult chiléren, Betty Guy Sherman, James Cooper, and Daulton Coo- per. Sherman petitioned for administration of the decedent's estate on January 17, 1991, Attached to the petition was a copy of the decedent's will exeeuted December 5, 1989, hich provided in its entirety: 1, Hazel Cooper Corbin, a citizen and resi- dent of Panama City, Bay County, State of Florida, being of sound and disposing mind and memory, do hereby make, publish and. declare this to De my last Wi! and Testa ment hereby revoking any and all prior wis, codiells and testamentary disposi- tions. FIRST: I give, bequeath and devise all of my estate of whatsoever kkind and nature and wherever located to BETTY GUY SHERMAN to dispose of as she has beer instructed to do by me. SECOND: I desire to he buvied in a Chvistian-ike manner and that all my just debts be yaid. THIRD: [ hereby appoint BETTY GUY SHERMAN to be Fxeeatrix of this, my Last Will and Testamont, to serve without bond, hereby revoking all former wills by 615 SOUTHERN REPORTER, 2d SERIES Shorman was appointed personal reprosenta- tive Corbin filed motions for removal of the personal representative and for production of sssets, asserting that Sherman had rot ac- counted forall assets ofthe estate, that there ‘was approximately $187,000 in certiiates of deposit and money market accounts that Sherman had used for her own benefit with ‘out authority, and that aetions by Sherman had resulted in decreasing the assets of the estute. We eonelude the tial judge did not abuse his dserotion in denying the motions. We therefore afirm the trial judge's denial of motions for removal ofthe personal repre- emtative and her attorney. 11,21 Corbin filed 2 petition to determine exempt property purstant to section 732.402, Florida Statutes. The trial judge deter: ‘mined that a motor home and a travel trailer id not come within the definition of automo- bile. In the present appeal, itis argued that the trial judge erred in ruling that these two vehicles did not belong to Corbin as surviving spouse because of exemption. Corbin previ- ‘nusly challenged this interlocutory onder, which was affirmed beesuse it was not dem ‘onstrated on the recor that cither the motor home or the travel trailer was utilized as a personal vehicle, In ve Bstate of Corbin, 808 So2d 127 (Pla. ist DCA 1992). This deter rmination Is supported by the record in the present appeal. Tt is also argued that the two vehicles and a mobile home were owned ‘by Corbin and the decedent in an estate by ‘the entireties and that Corbin, ss the surviv= ‘ng spouse, is the lawful owner. Although Corbis testified that these items were par- chased with jointly acquired funds, each of the items at issue was titled solely in the decedent's name. The record supports the devermination by the trial judge that these items were not held as tenants by the entire- y. At the time of her death, decedent had cover $200,000 in certificates of deposit, mon- ey market accounts and checking accounts ‘which were in the name of decedent “in trast, for® Retty Guy Sherman, Appellants filed a Potition to Determine Ownership of Assets in ‘which they asserted that these funds were ecamulated through the joint earnings ofIN RE ESTATE OF CORBIN Fla. 41 ie a645 $0.24 39 (Flap. 1D. 1991) Corbin and decedent in the course of their marriage, ‘They further alleged that these funds were acquired hy Corbin and decedent in an estate-by-the-entireties, and that Cor- bin, as the surviving spouse, is the owner. Appellees argued that the motion should be denied because there was ro allegation that the funds constituted an estate asset, and there was, therefore, no issue for the probate court to determine, The trial judge dis- missed the petition with leave to amend. in an amended petition, appellants made essen- tially the same argument but added an alle- ‘gation that as 2 second alternative, the Aunds Delong to decedent's estate, The tril judge again dismissed the petition with prejudice fas to tho various accounts now at lssue. (3,4) Appellants argue on appeal that it was not the intent of the decedent that Sher rman take all the money in these accounts ‘upon decedent's death and the fonds should hhave been included in estate assets. Appel- lants also argue that the language in deee- dent's will that she was revoking any’ and all prior wil, codicil and testamentary dispo- sitions revoked the tentative trust, We dis- agree. A Totten trust ean be revoked by & provision of the depositon's valid wil whieh specially makes 2 diferent disposition of tho trust funds or which gives rise to the implication that revocation of the trust was intended to be accomplished. Serpa x. North Ridge Bank, $47 S0.2d 19 (Fis. dth DCA 41989). Assuming the dispositional portion of the decedent's will was valid, the general language relied upon hy appellants is insal cient to manifest the requisite intent to r= voke, The will does not make a different disposition of the trust funds. Beeause the will devised the decedent's property to Sher- man to dispose of in accordance with oral instructions from the decedent, there fs no indleation that allowing the funds to pass to the named beneficiary is inconsistent with the decedent’s testamentary plan [5,6] Finally, we address eppellants’ ax frument that the wil did not Insfully devise ‘or bequeath the decedent's estate. Appel: lants filed a petition to revoke probate of the will im whick they argued that the will was {invalid beeause no specitie devises were made and that an instrument is not entitled to probate where it makes no affirmative dispo- sition of property. The trial judge did not rr in dismissing the petition with prejudice. ‘The statutory definition of “will” includes an instrument which merely appoints 2 personal reprosontative or revokes or revises another will. § 73120105), FlaStat. (1980). Appellants eorreetly contend, however, that the tral judge erred in his construction of decedent's will and ondering distribution thereunder. In onder to determine the deee- Gent's intention regarding her property, the trial judge allowed witnesses to testify over objection to oral statements made by the decedent reyanting her intent. Based on testimony presented, the tral judge conclud- ed that the language in the will was sultent to ereate a constructive trust in favor of the Iheneficiaries named to Sherman by the dece- dent in her oral instructions. IT] To the extent the testimony was elic« ited from interested witnesses, such as Shor- ‘man and James Cooper, the testimony was barred by section 99.602, Florida Statutes. ‘The trial judge erred in admitting and rely- ‘ing: upon such testimony. The testimony of ‘the non-interested witnesses was not sufli- cient to establish the testator's intention with regard to the property at issue, {8} The reliance by the trial judge on decisions which stand for the proposition that extrnsie evidence is admissible to explain or resolve uncertainty or Goubt when there isan amphgaity ina will was misplaced. In Dut. er 0, Bxate of Dudcher, 437 S024 788 (Fla, 2A DCA 198%), the wil attempied to devise the majority of the decedent's estate either to appellant to appellants children. ‘Two provisions appeared to conflict due to poor ‘wording hy the testetrix. Testimony of ap- parently disinterested witnesses. supported ‘he eonehsion that the decedent intended the appellant to be the principal beneficiary of the will Tn Scheurer 1 Tonerlin, 240 So. 172 (Fla 1st DCA 1970), the decedent devised the residue of her estate to her dlauginter-inlaw as trustee to pay the income to hor grandchildren. Construction of the vill was necessary because the decedent had no natural eildren and had not adopted any elildten, with the result that there were no42. Fa. known grandchildren. ‘The absence of actual grandchildren in the face of a bequest for the bonefit of presentiy living grandchildren pointed to the existence ofa latent ambiguity in the will and under such circumstance evi- neo was admissible to show the persons to whom the decedent made referonee. ‘A court may, in proper case, look beyond the face ofa Wil if there is an ambiguity as to the person to whom it is applicable; if there isa latent ambiguity as to the identi- ty of & legatze or devisee, or a mere inae- curaey in the designation or description ‘eonined in the will, extrinsic evidence is admissible to explain the ambiguity or in- souracy and identify the person designat- ced. Thus, paroi evidence is admissible to explain the meaning of a deseription of beneficiary named in a will that might apply. to each of several persons, oF to rectify a mistake made ip the description of a heneficiary. Scheurer, 240 Sod at 175 (quoting 35 Fla. Jur., Wills, Section 259), [9] In the present ease, there is no ambi- guity. The will clearly attempts to devise the deeotont’s property to Sherman for Sherman to distribute according to oral structions from the deeedent. Florida does not recognize oral wills. $$ 731201085); 72.002, Fla Stat. (1989), Although the Flor- fda Probate Code does permit incorporation of certain writings hy reference in the wil, there is no provision for incorporation of ora instructions or communications. Sec §§ TR25I2; TRLB16, FlaSiat. (1989). We conclude that the provision of decedent's wil at issue was ineffective as a. testamentary isposition. Because the will fled to effec- tively devise the property to designated ben- cficiuries, intestacy resulted. § 782.101, Fla Stat. (1989), Wo reverse the final judgment tnd remand for further proceedings consis: tont with this decision, Appellants also appeal an order on attor- noy's feos in which the tval judge found that the positon taken by Corbin that the will was totally void was frivolous and ordered portions of James Cooper's attorney's fees to de paid from the share of the estate awarded to Corbin. We remand for further proceed- 645 SOUTHERN REPORTER, 24 SERIES ings on this issue in light of our reversal of ‘the final judgment. ‘Affirmed in part, reversed in part, and remanded for further proceedings. and WOLF, JJ., concur. Richard VELEZ, Appellant, STATE of Florida, Appellee. No. 91-0419, Distriet Court of Appeal of Florida, Fourth District Get. 26, 1994 Rehearing Denied Dec. 15, 1994, Defendant was convicted in the Cireuit Court, Palm Beach County, James T. Car- lisle, J., of kidnapping with = weapon, at- tempted robbery and first-degree murder. Defendant appealed. The Distriet Court of Appeal held that: (2) defendant was not prej- tudiced in review of eonvietion and sentence by missing transeript of portions of voir dire, and (2) no harmful error oveurred in jury selection. firmed, L iminal Law @1114.1(3) Not all omissions of portions of tran- seript of proceedings preclude a meaningful appeal, thereby requiring reversal for new ‘vial; question is whether unavailable por- tions are necessary for complete review. 2, Criminal Law <>1115(2) Missing portions of transeript of voir dive whieh were unavailable for review did not entitle defendant to new trial for mer, ‘where matters raised as error were harmless ‘as a matter of law.