Bradshaw v. American Advent Christian Home and Orphanage

• Decision Date: 10 December 1940
• Citation: 199 So. 329,145 Fla. 270
• Parties: BRADSHAW v. AMERICAN ADVENT CHRISTIAN HOME AND ORPHANAGE et al.
• Court: Florida Supreme Court

199 So. 329

145 Fla. 270

BRADSHAW v. AMERICAN ADVENT CHRISTIAN HOME AND ORPHANAGE et al.

Florida Supreme Court

December 10, 1940

Rehearing Denied Jan. 9, 1941.

En Banc.

Creditor's bill by F. W. Bradshaw, as receiver of the Enochs Lumber &amp Manufacturing Company, against the American Advent Christian Home and Orphanage, and Austin Miller, as trustee of a testamentary trust, to subject income of the trust to payment of a judgment against the corporate defendant. From a judgment for defendants, plaintiff appeals.

Reversed.

CHAPMAN J., dissenting. Appeal from Circuit Court, Duval County; A. D McNeill, judge.

COUNSEL

H. T. Rogers, of Jacksonville, for appellant.

L. R. Milton, of Jacksonville, for appellees.

OPINION

BROWN Justice.

F. W. Bradshaw, as receiver of Enochs Lumber & Manufacturing Co., a corporation, appellant here, plaintiff below, filed a creditor's bill against the American Advent Christian Home and Orphanage, a corporation, and Austin Miller, as trustee of the Mary J. Lindsley Estate, seeking to subject the income of this estate to the payment of a judgment debt in favor of Enochs Lumber Co. against the American Advent Christian Home and Orphanage.

The Mary J. Lindsley Estate was established by the last will and testament of Mary J. Lindsley, admitted to probate and record November 16, 1929. The testatrix first provided that all her just debts be paid, and the balance of her estate she devised and bequeathed 'to Austin Miller in trust and confidence and for the use and benefit of the American Advent Christian Home and Orphanage, a corporation not for profit under the laws of Florida, upon the terms and conditions and for the purposes hereinafter set out; that is to say that the said trustee may, in his discretion, sell, mortgage and convey all or any portion of my said estate as he shall in his discretion see fit, for the betterment of my estate and/or for the obtaining and investing of funds for the use and benefit of the beneficiary herein, and all sums derived from my estate and reinvested shall become a part of the trust estate, which shall be known as the 'Mary J. Lindsley Estate'.' The testatrix directed the trustee 'to pay over to the beneficiary named herein, to the officer or officers of said beneficiary legally entitled to receive the same, semi-annually, the net income of my estate, less such amount as in his discretion, with the approval of said County Judge, he shall deem expedient to be retained as a sinking fund for the maintenance and betterment of said estate, or for the retirement of any obligation or obligations. * * * In the event that my said trustee should determine that the officers of the said beneficiary are making or intend making an improper use of the said funds he shall so inform them stating his reasons for his opinion, and then in the event the said officers cannot satisfy my said trustee within thirty days after the receipt of said notice of the use to which they are putting, or intend to put, the said funds, either party may apply to the County Judge in and for Duval County, Florida, and he shall determine by order whether or not said funds shall be retained by said trustee and applied to the corpus of my said estate, or be paid over to the officers of the beneficiary. Any funds so withheld shall be applied to the principal or corpus of my said estate and be and become a part thereof. In the event of the dissolution of my said beneficiary or that it should in any manner cease to exist or cease to be a charitable home and orphanage, as it now is, then in that event it is my will that the Children's Home Society of Florida shall be and become the beneficiary hereunder in the place and stead of the said beneficiary first named.'

The bill of complaint alleges that on May 15, 1935, the Enochs Lumber & Manufacturing Co. recovered a judgment for $2,468.04 and costs against the American Advent Christian Home and Orphanage in Suwannee County, recorded there and in the foreign Judgment book for Duval County. Execution in both counties was returned nulla bona. It is further alleged that 'no part of said judgment or said execution has been paid; that the said judgment is valid, outstanding, not reversed, satisfied or vacated, or otherwise modified; that the said execution is valid and unsatisfied * * *.' The amended bill of complaint alleges that the above judgment 'was upon a claim as a result of an indebtedness for lumber and materials sold by it to the defendant, American Advent Christian Home and Orphange, at its request, and used by said defendant in making improvements and repairs to its property in Suwannee County, Florida.' A further amendment alleges 'that the orphans who had been and are committed to the care of the Defendant, and which Defendant cares for by providing a suitable home, have been and are receiving great benefit from the sale of the lumber and materials by Plaintiff to Defendant, which constituted the basis of the judgment above mentioned, in this: that the said lumber and materials were used by the Defendant in making the improvements and repairs mentioned to the buildings of the Defendant, in which buildings the said orphans live, and were and are cared for by the Defendant, and said buildings are maintained for the purpose of caring for said orphans; that a large part of the materials so purchased by said Defendant consisted of window frames used by it in said buildings, while the remainder was used for making additions and repairs to the said buildings mentioned, and used as above mentioned; that from the use of said lumber and materials by Defendant, the orphans derived and are deriving great benefit, as aforesaid.'

The Circuit Court sustained a motion to dismiss the bill of complaint, and upon the complainant failing to amend, final judgment was entered against him, from which final judgment this appeal was taken, the plaintiff assigning as error the granting of the motion to dismiss.

The question presented is...