
    Agnes GUILLIAMS and Clyde Guilliams, her husband, Appellants, v. The FIRST NATIONAL BANK OF LEESBURG, Leesburg, Florida, a corporation existing under the National Banking Laws of the United States, as Executor of the Last Will and Testament of Louise Smith, deceased, and the First State Bank and Trust Co., Eustis, Florida, a corporation, as Administrator, c. t. a. d. b. n. of the Estate of Lavina M. Wandrey, Deceased, Appellees.
    No. 68-448.
    District Court of Appeal of Florida. Second District.
    Dec. 19, 1969.
    Rehearing Denied Jan. 14, 1970.
    
      C. Vernon Mize, Jr., of Cleveland & Mize, Sanford, for appellants.
    P. C. Gorman, Leesburg, and Irving F. Morse, Clermont, for appellee, The First Nat. Bank of Leesburg, as executor.
   LILES, Judge.

Defendants have appealed from an adverse summary judgment in the trial court holding that they do not hold any interest in a 14-acre citrus grove which formerly belonged to one Lavina E. Wandrey. Defendants had claimed ownership to this grove through the will of Mrs. Wandrey.

Paragraph eight of Lavina E. Wandrey’s last will provides in pertinent part as follows:

“I give, bequeath and devise to my sister, LOUISE SMITH, all of my real property together with all the furniture and furnishings in the buildings thereon, in trust, nevertheless, for the following uses and purposes:
A — My sister, LOUISE SMITH, shall have the right to occupy the first floor of the home on said premises so long as she shall live.
B — CLYDE GUILLIAMS and AGNES GUILLIAMS, his wife, shall have the right to occupy the remainder of said home so long as my sister shall live and said GUILLIAMS shall manage the citrus grove and ferneries on said property and shall have the income therefrom so long as my sister shall live, provided said GUILLIAMS shall promptly pay all taxes on said property, all utilities for said home on said property, all necessary repairs to said property, and all fire insurance thereon.
“Upon the death of my sister, the title to the citrus grove on said property consisting of approximately 14 acres, shall vest in said GUILLIAMS, subject to an easement across said citrus grove from the highway to Lake Eustis, provided said GUILLIAMS have discharged their duties as set forth herein.”

We are therefore called upon to construe this portion of Mrs. Wandrey’s will.

Testatrix died on February 17, 1960, and Louise Smith, her sister and residuary legatee of this will, was appointed executrix pursuant to instructions in the will. On December 9, 1960, Louise Smith was adjudicated incompetent and on December 21, 1960, defendant, Agnes Guilliams, was substituted as personal representative of the estate of Lavina E. Wandrey, deceased. Louise Smith died on January 14, 1962, and defendants claim that after her death title to the citrus grove vested in defendants Guilliams pursuant to paragraph eight of the will. During the time period between the death of Mrs. Wandrey and the death of her sister, Louise Smith, the income from the sale of citrus from the grove amounted to $23,882.65. Also during this time Mr. Guilliams was paid a total of $2,650.00 for services in caring for the citrus grove.

The trial court held that defendants did not obtain title to the citrus grove on the death of Louise Smith because they had failed to comply with the conditions precedent set forth in the above-quoted paragraph of the will. Defendants argue that the conditions set forth in paragraph eight are not conditions precedent but rather are conditions subsequent and therefore did not prevent the title to the citrus grove from vesting on Louise Smith’s death.

In reviewing paragraph eight of Mrs. Wandrey’s will this court is compelled to hold that by the plain terms of this paragraph Mrs. Wandrey established certain conditions precedent to the vesting of title to the grove in defendants. They are conditions which should have been satisfied prior to the time of vesting. In the first place, one condition precedent was the death of Louise Smith. This condition was fulfilled on January 14, 1962. However the other condition was that defendants prior to this time discharge several specified duties. It provided that “title to the citrus grove * * * shall vest in said GUILLIAMS * * * provided said GUILLIAMS have discharged their duties as set forth herein.” [Emphasis supplied.] This language clearly evidences an intent to impose conditions precedent rather than conditions subsequent. These duties were that the Guilliams “promptly pay all taxes on said property, all utilities for said home on said property, all necessary repairs to said property, and all fire insurance thereon.” Paragraph eight also provided that the Guilliams manage the citrus grove and that they shall have the income from this grove.

The trial court found that defendants did not perform these conditions and our review of the record indicates that this finding was correct. Defendants now argue that because paragraph eight also provided them with the income from the grove, and because the income for this period, $23,-882.65, was paid directly into the estate and not to defendants, they should be excused from having to perform these conditions. It is unfortunate that this income from the grove was exhausted by other estate expenses, and that in fact the estate was compelled to mortgage the grove for $17,000. Even now the balance of funds left in the estate is inadequate to pay all of the estate expenses. The estate had prior claim to this income. Section 733.01, F.S.A.

The mere inability to perform a condition precedent by potential devisees does not relieve them of the duty to so perform. 12 Fla.Jur. Estates § 28. Impossibility of performance is usually no excuse, especially where the subject of the devise is real property, and here neither the testatrix nor any third person rendered performance impossible. See Annot., 39 A.L.R.2d 522. The fact defendants may not have had the financial ability to fulfill the conditions precedent set up by Lavina E. Wandrey for vesting of title to the citrus grove in them does not relieve them of the duty to so perform. Not having performed as required by paragraph eight of the will, title to the citrus grove has never vested in defendants. The trial court properly held that this devise lapsed and went to the residuary legatee.

This conclusion is not unfair in light of the fact that a total of $2,650.00 was paid to Mr. Guilliams by Mrs. Guilliams as personal representative of the estate for his services in managing the citrus grove. This amount of money was more than sufficient to meet the financial obligations of defendants imposed by these conditions precedent, and they could have used this money to fulfill them. Also, it can be seen that paragraph eight provided that the Guilliams were to manage the citrus grove but made no mention of compensation. The Guilliams are now arguing that they own the very grove the estate paid them to manage.

Defendants argue that no demand for performance of these conditions precedent was made upon them. This argument is without merit. There is no requirement that the estate demand that the potential devisee perform what the will itself requires be performed. Defendants might have an argument if they had no knowledge that these conditions were imposed upon their devise, but such is not the case. Furthermore, Mrs. Guilliams herself was personal representative of the estate for most of the time that these conditions were to be performed and cannot now be heard to complain that she should have made demand upon herself and her husband for what they knew was required of them by the will.

We find nowhere in the record that performance of these conditions was waived by the testatrix or any party in interest; likewise, performance by defendants was not frustrated by any person who stood to gain should the land not vest in defendants. See In re Estate of Mollard, Fla.App.1957, 98 So.2d 814.

We have examined the other points raised on the appeal and find them to be without merit.

Affirmed.

HOBSON, C. J., concurs.

McNULTY, J., dissents with opinion.

McNULTY, Judge,

(dissenting).

I am not prepared to say that the conditions required by the will for the vesting of “title” to the grove in appellants were conditions precedent. A strong case can be made that they are conditions subsequent. But I don’t think it makes any difference in this case either way because in my view, the conditions were complied with. For this reason I am compelled to dissent.-

The critical period of time involved herein is that which elapsed between the date of the death of the testatrix and the date of death of the first life tenant (a sister of the testatrix), a period of approximately two years; and the crux of the case as I see it is whether the “conditions” were performed during this time as intended by the testatrix. It is rudimentary that the testative intent controls, and to ascertain such intent all four paragraphs of Paragraph EIGHTH of the will must be read in their entirety and in sequence, rather than portions of each read out of context. When so read in sequence, it is clear that the testatrix first gave the Guilliams the right of possession of the realty involved jointly with the first life tenant; secondly, she directed that the Guilliams manage the “grove and ferneries” thereon; thirdly, she bequeathed the income therefrom to the Guilliams; following this bequest, she next directed that the Guilliams pay all taxes, utilities, etc.; and finally, she devised a remaining life estate to the Guilliams upon the death of the first life tenant, provided they perform as aforesaid. These provisions are patently susceptible of two possible interpretations as they relate to the Guilliams’ duty to pay all taxes, utilities, etc.; i.e., (1) that the Guilliams pay such expenses out of the “income” from the grove and the ferneries, which income was bequeathed to them, or (2) that they pay them out of their own pockets as a condition precedent to their inheriting the “income” and, subsequently, the realty. The trial Court and the majority have apparently accepted the latter construction. I can’t agree.

Not only does the chronological sequence and mode of expressing the testatrix’ directions indicate that she intended the former construction, but there is no other reasonable explanation for her having bequeathed the “income” to the Guilliams during their management of the properties for the life of the first life tenant. First of all, in this regard, it’s significant to note that the first life tenant was named both trustee and executrix; and if the testatrix’ intent was merely to impose duties on the Guilliams as a condition precedent to their taking the “income”, the very same purpose could have been accomplished merely by giving such income to the trustee-executrix with directions that they be delivered over to the Guilliams upon performance of the conditions. Secondly, if the testatrix’ intent was to compensate the Guilliams for their efforts in managing the grove and fern-eries, this too, could have been accomplished in the same way, i.e., by directions to the trustee-executrix. Finally, if it was the testative intent that the Guilliams pay the specified expenses out of their own pockets, as conditions for their taking only the remainder of the real estate, there would be no need to bequeath them the “income” at all.

In sum, it is obvious to me from all patent circumstances that the testatrix clearly intended to provide the Guilliams with an “income” out which they were directed to pay the certain expenses itemized; and it is further clear that she expressly bequeathed such income to negate any conclusion that she was requiring the Guilliams to “subsidize” her estate to the extent of the amount of such expenses.

Now it is true that § 733.01, F.S.A. directs that the personal representative, as trustee for devisees and legatees, receive the assets of a given estate out of which he is directed to pay just claims and expenses. But this statute is a procedural statute and merely provides the mechanics for the administration of decedent’s estates. It has no bearing on the construction of wills, on the ascertainment of testative intent or on the operative effect of the provisions of a will. If such statute has any application in the disposition of this case it can only mean that when the testatrix died her executrix had a duty to receive the assets and administer them in accordance with the law and the terms of the will. There is nothing unlawful or against public policy in the terms of the will; and Paragraph EIGHTH thereof directed that the management of the grove and ferneries be in the hands of the Guilliams. As pointed out above, Paragraph EIGHTH also clearly bequeathed the “income” to the Guilliams. In administering the estate, the executrix could have acquiesced in the directions of Paragraph EIGHTH as to management of the grove, which the record reveals was in fact done, or, for good cause and by court order, could have had others substituted as managers. Indeed, it is undisputed that until the life tenant was declared incompetent and removed as executrix, the Guilliams did manage the grove and ferneries and turned the “income” over to the executrix (which income exceeded $23,-000.00 during the critical time material herein), and the taxes and other necessary expenses were paid by the executrix. Thereafter, the appellant Agnes Guilliams was appointed executrix and the same situation continued until the death of the first life tenant. The fact remains, in my judgment, that in each case the taxes, utilities, etc., were paid as intended by the testatrix, i.e., out of the “income” from the grove and ferneries; and to the extent that such testative intent imposed “conditions” on the Guilliams, such “conditions” were performed. This remains true and is not affected in any way by the fact that ultimately, the “income” was also used to pay additional expenses of the estate (the total of which eventually exceeded all liquid assets thereof).

As noted in the majority opinion, the appellant Clyde Guilliams was paid a total of approximately $2,600.00 for “services” in managing the grove, and appellees urge this fact in support of an estoppel. This is untenable. It’s true that these monies were paid during the period when the appellant Agnes Guilliams was executrix; but it’s also true that they were paid out of the total assets of the estate during the time when the Guilliams were remitting to the account of the estate the aforesaid $23,000.00 in “income” which had been bequeathed to them. During this period appellants may well have believed that the aforesaid $2,600.00 in compensation was an advance on their legacy. Concededly this may have been an erroneous belief, but no fraud is suggested and indeed, such monies were paid pursuant to court order. In any event, even if such sums were in fact erroneously paid, they are reimbursable, and perhaps may even constitute a lien or charge on any remainder or interest in the estate which now is vested in appellants. Such facts cannot, however, have any bearing on the intent of the testatrix or on the operative effect of her will; nor will they support any theory of estoppel.

Accordingly, summary judgment for appellees herein was improper and I would reverse. 
      
      . See 96 C.J.S. Wills §§ 994 et seq.; and see also, 5 Bowe-Parlter: Page on Wills, § 44.4
     
      
      . See, e. g., Trueman Fertilizer Co. v. Allison (Fla.1955), 81 So.2d 734; Pyle v. Pyle (Fla.1951), 53 So.2d 312; and In re Rosenthal’s Estate (Fla.3d D.C.A.1966), 189 So.2d 507.
     