First Trust & Sav. Bank v. Henderson

• Citation: 136 So. 370,101 Fla. 1437
• Court: United States State Supreme Court of Florida
• Decision Date: 05 May 1931
• Parties: FIRST TRUST & SAVINGS BANK v. HENDERSON et al.

136 So. 370

101 Fla. 1437

FIRST TRUST & SAVINGS BANK v. HENDERSON et al.

Florida Supreme Court

May 5, 1931

Rehearing Denied June 16, 1931.

En Banc.

Suit by Julia Henderson and others against the First Trust & Savings Bank. From an adverse decree, defendant appeals.

Reversed in part, and affirmed in part.

BUFORD C.J., dissenting in part.

Syllabus by the Court.

SYLLABUS

Where a testator created by his will two separate estates, that of executor (trustee for creditors), and trustee of the entire balance, remainder, and residue of his estate after the executor shall have carried out the provisions of the will and names one person to execute both trusts, the person named may not be charged in his capacity of trustee until, as executor, the business of administering the estate is completed.

A devastavit is a mismanagement of an estate and effects of a deceased person by an executor or administrator in squandering and misapplying the assets of the estate contrary to the duty imposed by the law or terms of the will.

Where an executor is required under the terms of his testate's will to carry on or continue a certain business for a period of time, the executor may not be held as an insurer of the success of the business.

An executor is entitled to receive from the estate, which he manages under the terms of the will appointing him reasonable compensation commensurate with the labor and capacity required to correctly attend to the details of the estate's business and successfully manage its affairs.

The order of a chancellor in a proper proceeding before him approving the payment of claims by the executor of an estate which claims were not sworn to and filed with the county judge within twelve months from the first publication of the executor's notice as required by chapter 10119, Acts 1925, will not be disturbed, where it appears that the claims were proper in all respects, just debts payable out of the estate, and the will expressly charged the executor to pay all just debts of the testator. Appeal from Circuit Court, Dade County; H. F. Atkinson, judge.

COUNSEL

Loftin, Stokes & Calkins, A. J. Rose, and Mitchell D. Price, all of Miami, for appellant.

John M. Murrell, of Miami, Chas. E. Davis, of Tallahassee, and I. J. McCall, of Jasper, for appellees.

OPINION

ELLIS J.

The First Trust & Savings Bank is a banking corporation doing business in the city of Miami. The First National Bank of Miami is also a banking corporation of that city. Though the two are separate and distinct entities, they are owned and controlled largely by the same stockholders and directors. Mr. Edward C. Romfh, who is the president of the First National Bank, is one of the principal stockholders of the First Trust & Savings Bank. He is on the board of directors of both corporations and in co-operation with four others controls the affairs of both.

Parker A. Henderson was a stockholder in the First National Bank, a member of its board of directors, and a member of its finance committee. He and Romfh were close business and political friends. In the year 1925 Parker A. Henderson, who was engaged in a lumber business and an experienced man in that vocation, also dealt heavily in real estate, and during the period of extraordinary real estate activity and exaggerated values existing about that time was considered to be a man of considerable wealth. He died on the 26th day of July, 1925, leaving surviving him his widow, Julia Henderson, and two sons, Parker A. Henderson and A. J. Henderson, the latter a minor.

Mr. Henderson left a will, which, omitting the signature and attestation clause, is in the following words:

'I, Parker A. Henderson, residing in the City of Miami, County of Dade and State of Florida, being of sound and disposing mind and memory, do hereby make, publish and declare this as and for my Last Will and Testament, hereby revoking all other and former wills or codicils thereto by me made:

'Item One: I will and direct that all my just debts, including the obligations created by my last illness and the expenses of my funeral be first paid out of my Estate;

'Item Two: Unto my wife, Julia Henderson, I give, will, devise and bequeath all of the corporate stock owned by me at the time of my death, or to which I may be entitled, in The First National Bank of Miami, Florida, to be her own absolutely. I do also give, will, devise and bequeath unto my said wife, all the household furniture and equipment of every kind and character contained in that certain property which shall be my home at the time of my death.

'Item Three: With a view to the carrying out of my further wishes concerning the disposition of my Estate after my death, I do hereby name, constitute and appoint the First Trust & Savings Bank of Miami, Florida, a banking corporation duly organized and existing under and by virtue of the laws of the State of Florida, and qualified, as Executor under this my Last Will and Testament, and also, as Trustee of all Trust Funds herein specifically created and all other items hereunder contemplated as item in Trust, and I do hereby clothe my said Executor and my said Trustee, in their respective capacities, with full power and authority to make sales of any of my property when in the judgment of my said Executor or Trustee it shall appear for the best interests of my Estate, and to execute all papers, instruments and documents of every kind and character, necessary and incident to any and all such sales, including deeds, satisfactions, releases, receipts, assignments, bills of sale, mortgages, which said authority shall extend to the matter of investing the funds of my Estate from time to time as such funds become available, all without first obtaining authority from the Probate Court or Judge or other Judicial Tribunal having jurisdiction in the premises, and without thereafter procuring the ratification of any such acts by any Probate Court or Judge or other Judicial Tribunal having jurisdiction in the premises, and all persons paying money or delivering any thing or things of value unto my said Executor or my said Trustee, as the case may be, are hereby relieved of all concern and responsibility as to the application or distribution of any such funds or things of value so paid or delivered.

'Item Four: Expecting my said Executor to carry out the provisions of this My Last Will and Testament in so far as it shall be proper under the law, and until my Estate shall have been settled according to Law, and bearing in mind the provisions of 'Item Two' of this Will, 'Item One' also, I give, will, devise and bequeath the entire balance, remainder and residue of my Estate unto the Trustee named in 'Item Three' hereof, but in Trust, However, to be handled as follows:

'My said Trustee shall invest and re-invest the funds of my Estate from time to time according to its judgment and with a view to the best interests of my Estate: Fifteen (15) per cent of the entire income shall be retained and added to the principal until ultimately disposed of as herein provided; from time to time, to-wit, monthly, quarterly or semiannually, as may appear most advantageous One-Third (1/3) of the remaining eighty-five per cent of the income from my Estate shall be delivered to my wife, Julia Henderson; One-Third (1/3) to my son, Parker Henderson, Jr., and the other One-third (1/3) to my other son, A. J. Henderson, provided that should any one or more of the three Legatees just named not survive me, or should one or the other of my two sons die before final distribution to them, the survivor shall receive the full benefit of the share so left by such death, except, that in the event there shall be children of such son, then the share so left shall go to the child or children, and in the event such deceased son shall leave no child or children, then the surviving son shall receive such share, but the income therefrom shall, during the lifetime of my wife, Julia Henderson, be divided equally, one half to go to my said wife, and one half to such surviving son. At the death of my said wife, should she survive the time when my younger son shall have arrived at the age of Forty Five Years, the portion of my Estate from which her income during life shall have been produced, shall be equally divided between my said sons, children taking such care if said sons or either be dead.

'Item Five: I direct my said Trustee to maintain my Estate as provided in 'Item Four' of this Will, until the happending of the following events: When my said Parker Henderson, Jr., shall have arrived at the age of Forty years (40) he shall be given One Half of the principal from which his One Third, or otherwise in the event of the death of my wife, had theretofore have reduced, and the other One Half or entire balance coming to him, except my wife be then living, to be paid to him when he shall have arrived at the age of Forty Five (45) Years, and when my son A. J. Henderson shall have arrived at the age of Forty (40) years, he too, shall receive one half of the principal from which his said One Third income had theretofore been produced, the other One Half of the said principal, as it may then stand by reason of the survival or death of my said wife, to be paid to him when he shall have arrived at the age of Forty Five (45) Years. Should either son die before final distribution, leaving children, such deceased's son's share shall be deemed a unit for distribution between such children, as to income, and retained by my said Trustee as to principal, for equal distribution when each such child shall arrive at his or her majority.

'Item Six: I direct that my retail lumber business shall be maintained and operated by my Executor and when my Estate shall have been...