Barnett Nat. Bank of Jacksonville v. Murrey

• Decision Date: 19 December 1950
• Parties: BARNETT NAT. BANK OF JACKSONVILLE et al. v. MURREY.
• Court: Florida Supreme Court

Page 535

49 So.2d 535

21 A.L.R.2d 1452

BARNETT NAT. BANK OF JACKSONVILLE et al. v. MURREY.

Supreme Court of Florida, en Banc.

Dec. 19, 1950.

J. Turner Butler, Jacksonville, Williamson, Gunster & Baugher, Palm Beach, and Patterson, Freeman, Richardson & Watson, Jacksonville, for petitioners.

Joseph M. Glickstein and Bedell & Bedell, all of Jacksonville, for respondents.

SEBRING, Justice.

This is a certiorari proceeding to review an order of the Circuit Court of Duval County striking a portion of an answer to a bill of complaint filed by M. J. Murrey to set aside a trust instrument.

From the bill of complaint it appears that Mrs. Margaret Blum died on December 7, 1948 leaving a last will and testament by which she devised and bequeathed all her household furniture and one-half of all other property which she might own at her death to her son M. J. Murrey. Shortly after the will was admitted to probate Murrey learned for the first time that in 1947 Mrs. Blum had executed a trust instrument whereby she had conveyed all her property except the household furniture, consisting wholly of stocks in a corporation, to the Barnett National Bank of Jacksonville, as trustee, to be held in trust for the trustor's use and benefit during her lifetime and thereafter to be divided into five separate and equal shares and the income therefrom paid to five designated children and grandchildren, including the plaintiff, for a 10-year period, at the end of which period the trust would terminate and the shares would be paid to each of said children and grandchildren.

After learning of the existence of the trust, Murrey brought suit to set the trust instrument aside on the ground that at the time of its execution Mrs. Blum was incapable of understanding the nature and effect of the instrument and was mentally incapacitated from making a disposition of her property.

The defendants filed their answer to the bill denying the incapacity of Mrs. Blum and alleging that 'Before the plaintiff can contest the validity of a trust providing for a gift to him and others, he must first divest himself by formal renunciation of any beneficial interest which he has under the gift. The plaintiff has not renounced or disclaimed any beneficial interest to him under the instrument * * * [but] is seeking to destroy the Trust without having renounced his beneficial interest thereunder and is thereby seeking to place himself in the inconsistent position of being able to accept the benefits of the Trust in the event he is unsuccessful in his effort to destroy the same. The plaintiff is and should be estopped from asserting the invalidity of the Trust until he has first filed his formal disclaimer and renouncement of any beneficial interest thereunder.'

A motion to strike this portion of the answer was granted, the trial court being of the opinion that it was unnecessary for the plaintiff to renounce the benefits as a condition to bringing suit but that the benefits might be retained by him until the validity or invalidity of the instrument had been finally adjudicated. A review of this ruling is sought in this certiorari proceeding.

We do not find the law on the issue presented to be entirely in accord with the views expressed by the trial court in its order. As we understand the general rule on the subject of renunciation, it is that one who receives and retains a gift under a deed, will or other instrument is estopped to contest the validity of the instrument under which he derives his interest. But the rule is subject to the qualification that a beneficiary who has received benefits under such an instrument is not thereby estopped to contest the validity of the instrument if he returns the benefits promptly, if it appears that no prejudice has resulted to third persons whose interests are affected by the instrument by reason of the temporary receipt of the benefits, and if the elements of laches are not present in the transaction. See Pournelle v. Baxter, 151 Fla. 32, 9 So.2d 162, and cases therein cited; 72 A.L.R. 1134 Annotation; The American Law of Administration, Woerner, 3rd Ed., Secs. 217, 461. See also 57 Am.Jur. pp. 543-546, 1067-1071, Wills, Secs. 802-805, 1562-1566, for general discussion of the rule.

The rule and its qualifications are stated in Hamblett v. Hamblett, 6 N. H. 333, as follows:

'It has been repeatedly held in the English ecclesiastical courts, that a legatee, who has received a legacy by virtue of a will, must bring in the legacy before being permitted to contest the will. 1 Addams, 365, Bell v. Armstrong, and cases cited. 3 Addams, 243, Braham v. Burchell.

'The rule is founded in principles of justice, and seems to be sound law. The receipt of a legacy is, quoad the legatee, an affirmance of the will. It is acting under it--taking the benefit of it, and treating it as a valid instrument.

'Such affirmance, however, is not an absolute bar against the party seeking to contest the will, though under circumstances of delay, connected with other circumstances, it has been held to preclude the party from contesting the will afterwards. 1 Addams 375; 2 Phillimore, 230, note b, Hoffman v. Norris.

'But if the party so having received a legacy, afterwards desires to contest the will, there is great reason that he should tender to the executor, or bring into court, the amount received. The security of the executor may require this, and if the party can withhold it, he may at one and the same time treat the will as valid, and invalid. Valid as authorizing him to hold that portion of the...