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As pointed out above, some of the contingent heneficiaries ~
have consented. but not al].. In fact, some may hot yet be born. The
Trust refers to the great-grandc~a=.~ghters of Dan~r porothy Binney Palmer
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living at the time of her death; these might or might not be the same :
as the nine presently livir~g. The contingent provisions made by Donors
xelen E~inney Kitrhel, Barbara Kitchel Gixdler, Allan Farrand Kitchel,
Jr. and Douglas Binnay Ki'~chel, for their respective children are
~er stir.~es_. There is no way of knowing which if any of the.several
continqent beneficiaries, born or unborn, might receive a vested
i.nterest in the Trust before the expiration of its ten year term.
The Declaration of Trust specifically provides that the
rights, obligations and duties of Trustee, Donor and all persons
having any interest thereunder shall be determined by the laws of
the State of Florida. The Trustee argues that the Florida law is
found in the case of Randall v. Randall, 60 F. Supp. 3G8 (1544).
This case ar~ses in the Southern District of Florida and holds that
a contingent bene€iciary's interest in a trust can be eliminated
~ without consent. The District Judge in the Randall case, although
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presumatively applying Florida law, cites no Florida authority or
his decision. This case also appears to be contrary to the weight
of authority in ~he ihlited States. Professor Scott, in his treatise
on ~he Law of Trusts, Vol. 3, Second Edition, Section 340, Page 2487,
states:
"The settlor cannot revoke the trust, if he has not
reserved a pawer of revocation, unless ali of the
beneficiaries consent. Nor can the beneficiaries,
whether with or without'th~e consent of the settlor,
compel a disposition of the trust property other
t:~an that provided for by the term5 of the trust,
- if some of the beneficiaries do not consent. A
nonconsenting beneficiary cannot be deprived of his
interest under the trust, whether the interest is
vested or contin ent, whether the beneficiary is
ascertained or not, whether he is under a disability
or not. (Underlining added)
In the foa~note of this section, Professor Scott refers to the
Randall case as being contra to the general rule. _
- 9 - 80u!( ~.J~ P4Gi ~.~,~3 (
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