Henderson v. Usher

Decision Date21 September 1936
Citation170 So. 846,125 Fla. 709
PartiesHENDERSON et al. v. USHER et al.
CourtFlorida Supreme Court

Petition to Recall Mandate and Leave to File Rehearing Denied December 10, 1936.

Suit by Harry A. Usher and another, as executors and as trustees under the last will and testament of Frank Duff Frazier deceased, against Marjorie Affleck Frazier Henderson, joined by her husband, Holcombe Henderson, and others. From an adverse decree, the named defendant appeals, and executors filed cross-assignments of errors.

Decree modified.

On Petition to Recall Mandate and for Leave to File Petition for Rehearing.

Appeal from Circuit Court, Palm Beach County; C. E. Chillingworth judge.

COUNSEL

E. J L'Engle, J. W. Shands, and Edward McCarthy, Jr., all of Jacksonville, and Chadbourne, Stanchfield & Levy, of New York City, for appellants.

Sullivan & Donovan, of New York City, Fred M. Valz and Robert H. Anderson, both of Jacksonville, and Wideman, Wideman & Wardlaw and Manly P. Caldwell, all of West Palm Beach, for appellees.

OPINION

PER CURIAM.

Frank Duff Frazier, of Palm Beach county, Fla., died June 21, 1933, and left surviving him his widow, Marjorie Affleck Frazier, and a daughter by a former marriage, Diana Duff Frazier, a minor. He left a will, dated June 16, 1933 in which he made provision for his widow and his minor child, and made a contingent provision for Yale University. The will was admitted to probate in Palm Beach county on June 28, 1933.

Harry A. Usher and John G. Jackson, who were testamentary trustees under the will, were appointed executors of the estate of Frank Duff Frazier, deceased; and letters testamentary issued to them.

At the time of his death, Frank Duff Frazier had a brokerage account with Clark, Childs & Keech, which was the successor to Keech & Co. This firm had purchased for the account of Frazier securities valued, at the time of his death, at $338,263.75, for which he was indebted to the brokers in the amount of $202,236.88, and the securities were retained by the brokers to secure payment of the balance due. The executors, by selling some securities held on this account, and some securities held in the strong box, together with an advance from the Frazstate Corporation, paid this balance due.

At the time of his death, Frank Duff Frazier, owned (1) a lot in Palm Beach valued at approximately $65,000; (2) tangible personal property, such as household and personal effects, boats and the like, in Palm Beach county, appraised at $33,478; (3) tangible personal property consisting of household and personal effects, automobiles and the like the New York, appraised at $54,579.60; (4) intangible property consisting of shares of stock of the market value of $701,829.47; and bonds of the market value of $162,154.38, which stocks and bonds included those held on the account with Clark, Childs & Keech; (5) some land in Oregon, not involved in this litigation, worth approximately, $10,000; (6) in addition to cash and some mortgages.

The widow, Marjorie Affleck Frazier, on August 4, 1933, married Holcombe Henderson. Then on October 27, 1933, she filed, in the county judge's court of Palm Beach county, her dissent, in writing, to the will of Frank Duff Frazier, deceased, and claimed dower in his estate.

The executors, on November 18, 1933, due to the alleged inadequacy of the statutory proceedings, filed their bill of complaint against the widow, Marjorie Affleck Frazier Henderson, the daughter, Brenda Diana Duff Frazier and Yale University praying that the chancellor appoint a special master to allot unto the widow, Marjorie Affleck Frazier Henderson, such dower interest as she may be entitled to, and that the decree appointing the master determine and adjudicate the following questions:

(1) Whether dower should be allotted in the gross value of the brokerage account or whether it should be limited to the equity of redemption in and to such securities; (2) whether the dower interest of the widow shall be charged with its proportion of the inheritance and estate taxes, and the costs and expenses of preserving the property of the estate; (3) whether the total value of decedent's tangible property in New York City should be considered in allotting dower or whether the balance of said property, after deducting New York inheritance taxes and debts, should be considered in allotting dower; (4) the most equitable method of allotting dower in said real estate; (5) whether the executors should hold the specific personal property and deliver it to Brenda Diana Duff Frazier, and allot the widow dower in other portions of the estate.

Each of the defendants, Marjorie Affleck Frazier Henderson and Holcombe Henderson, her husband, Brenda Diana Duff Frazier and Brenda Watriss, her guardian, and Yale University filed separate answers to the bill of complaint.

After the introduction of all of the evidence, the chancellor entered final decree in the cause, in which he appointed Ernest Metcalf, Esq., special master, and ordered him to take testimony regarding the character and value of the real property in Florida, and all of the personal property wherever situated of which Frank Duff Frazier died seized and possessed, the property held by the executors or the proceeds substituted therefor, the liens against the property, the estate taxes imposed on the property, the income derived from the estate from the date of decedent's death, the expenses of preserving and maintaining said property, and such other testimony as may be material to this reference; and that as soon as practicable after the taking of testimony is complete, to allot Marjorie Affleck Frazier Henderson dower in said real and personal property in the manner provided by the decree, and report such allotment with recommendations of law and fact to the court for confirmation, modification, amendment, or disaffirmance.

The final decree decided in the following manner the questions asked by the executors in their bill of complaint:

'6. It appearing to the Court from the evidence adduced that dower in decedent's real estate in Florida, being the property situated in Palm Beach County, Florida, described in Paragraph V of the bill of complaint, cannot practicably be allotted in kind of specie, said Special Master shall determine the method of allotting dower, other than division in kind, which appears to be for the best interests of all parties to this suit, either by award of a gross sum or the imposing of an annual charge upon said lands, or otherwise; said Special Master shall recommend to the Court in detail the most equitable manner of making such allotment.
'7. It appearing to the Court that at the time of decedent's death, he was the owner of an equity of redemption in certain securities held by the brokerage firm of Clark, Childs & Keech, of New York City, subject to lien of $202,236.88, created by brokerage contract attached to the bill of complaint as Plaintiffs' Exhibit 'D', and that the defendant Marjorie Affleck Frazier Henderson is entitled to dower only in said equity of redemption in said brokerage account and not in the gross value thereof, said Special Master is ordered and directed to allot the said defendant Marjorie Affleck Frazier Henderson, one-half of the equity of redemption in said brokerage account, as the same shall be found and determined to exist at the date of the death of the decedent.
'8. It further appearing to the Court that decedent's estate is liable for Federal estate taxes and estate taxes of the States of New York and Florida in substantial amounts, and that the dower interest of the widow in decedent's property should bear its proportionate part of said estate taxes, said Special Master is ordered, in allotting to said Marjorie Affleck Frazier Henderson dower in the property of decedent, to charge said defendant and her dower interest with a portion of said estate taxes proportionate with the amount of property being received by said defendant by way of dower.
'9. It appearing to the Court that at the time of his death decedent owned tangible personal property in the State of New York of substantial value, and owed debts to creditors residing in the State of New York of less amount than the value of said tangible personalty, and that the debts of such creditors are a charge upon said tangible personalty, said Special Master is directed and ordered, in allotting to said defendant, Marjorie Affleck Frazier Henderson, dower from said tangible personal property, not to deduct from said dower interest allotted her any part of the debts owed by decedent at the time of his death to residents of the State of New York.
'10. It further appearing unto the Court that under Article Sixth of decedent's will the defendant, Brenda Diana Duff Frazier, is entitled to the household goods and furniture, silver, plate, linen, jewelry, wearing apparel, and articles of personal use and adornment, books, pictures, engravings, works of art, boats, automobiles and all other articles of personal property belonging to decedent's households or domestic establishments, subject to the dower rights of the defendant, Marjorie Affleck Frazier Henderson, and that dower should be allotted in such manner as to affect the interests of beneficiaries under the decedent's will as little as possible and in accordance with principles of justice, said Special Master is ordered and instructed, in allotting the dower interest of said widow in aforesaid personal effects, to allot unto her other property of a value at the time of the death of the decedent equal to one-half of the value of said personal effects hereinabove described, to the end that said personal effects may be distributed by the plaintiffs to the defendant
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27 cases
  • Gallagher's Will, In re
    • United States
    • New Mexico Supreme Court
    • March 28, 1953
    ...Estate, 1950, 276 App.Div. 651, 97 N.Y.S.2d 171, affirmed, 1950, 301 N.Y. 653, 93 N.E.2d 924, applying Florida law; Henderson v. Usher, 1936, 125 Fla. 709, 170 So. 846; Murphy v. Murphy, 1936, 125 Fla. 855, 170 So. 856; Regents of University System v. Trust Co. of Georgia, 1942, 194 Ga. 255......
  • Glover's Estate, In re
    • United States
    • Hawaii Supreme Court
    • May 4, 1962
    ...Estate, 38 Wash.2d 399, 230 P.2d 297. The equitable apportionment rule also was applied to the wife's dower right in Henderson v. Usher, 125 Fla. 709, 170 So. 846, the reasoning of which is not satisfactory, however. Holding to the contrary is Thompson v. Union & Mercantile Trust Co., 164 A......
  • Messer v. E.F. Hutton & Co.
    • United States
    • U.S. Court of Appeals — Eleventh Circuit
    • December 7, 1987
    ...is charged with the duty of dealing with utmost honesty and good faith in his transactions on behalf of his client. Henderson v. Usher, 125 Fla. 709, 170 So. 846, 852 (1936); Hayden, Stone Inc. v. Brown, 218 So.2d 230, 235 (Fla.App.), cert. denied, 225 So.2d 539 (Fla.1969); see generally Fl......
  • Pearcy v. Citizens Bank & Trust Co. of Bloomington
    • United States
    • Indiana Appellate Court
    • March 2, 1951
    ...of her community interest to the total estate for taxation purposes.' (Our emphasis.) To the same effect see also, Henderson v. Usher, 1936, 125 Fla. 709, 170 So. 846; Regents of University System v. Trust Co. of Georgia, 1942, 194 Ga. 255, 21 S.E.2d 691; Bernheimer v. First Nat. Bank of Ka......
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