Green v. Lewis

• Decision Date: 01 November 1933
• Citation: 113 Fla. 609,151 So. 270
• Parties: GREEN et al. v. LEWIS et al.
• Court: Florida Supreme Court

151 So. 270

113 Fla. 609

GREEN et al. v. LEWIS et al.

Florida Supreme Court, Division B.

November 1, 1933

Rehearing Denied Dec. 5, 1933.

Bill by Doris Robinson Green and another against Rose Robinson Lewis and another, as executrices of and trustees under the last will and testament of John S. Robinson, deceased, and Howard W. Smith, claiming as trustee under the last will and testament of John S. Robinson. From an adverse order plaintiffs appeal.

Reversed and remanded. Appeal from Circuit Court, Duval County; G. C. Gibbs, Judge.

COUNSEL

Bedell & Bedell, of Jacksonville, for appellant.

Daniel Boggs & Thompson, of Jacksonville, for appellees.

OPINION

BUFORD Justice.

The appellant filed bill in chancery in which she sought to have declared void a certain clause in her grandfather's last will and testament and also sought to have construed other clauses in the will so that she might be decreed to be entitled to a one-twelfth of the income of the estate of her grandfather from and after the 13th day of November, 1924, at which date her grandmother, a beneficiary under the will and by reason of the death of whom she claims this right, died.

The case presents some interesting questions, and one might write a volume concerning the law applicable to this case. The present writer, however, has neither the time nor inclination to do that, and, therefore, we shall dispose of the necessay questions as directly as is possible.

John S Robinson on the 27th day of April, 1910, executed his last will and testament.

This suit involves only certain parts of that will. Those parts are as follows:

'I give, devise and bequeath all of my estate and effects whatsoever and wheresoever located, both real and personal, to which I may be entitled, or of which I may have the power to dispose at the time of my decease to my wife Lizzette G. Robinson of Jacksonville, Florida, Rose Robinson Lewis of Rixeyville, Virginia, Beulah Robinson Lewis of Smithfield, West Virginia and E. L. Robinson of New Martinsville, West Virginia, co-trustees, upon trust.'

Items I and II are not involved.

Items III, IV, V, and VI are as follows:

'III. I direct that my said trustees shall pay to my granddaughter, Doris L. Robinson, the daughter of my deceased son, John S. Robinson, Jr., the sum of three thousand ($3,000.00) dollars in cash, or its equivalent in other property as my trustees may elect, when she shall reach the age of twenty-one years, and in the event she should die before she reaches the age of twenty-one years, then said amount shall revert to my estate and be cared for and disposed of as my other property as herein provided. I further direct that in the event Florence L. Robinson, the mother of my granddaughter Doris L. Robinson, shall die before my said granddaughter, then it is my will and I desire that said granddaughter shall be given in sole charge of one of my three first named trustees and my said trustees shall provide for the maintenance, care and education of my said granddaughter out of the income from my estate until she shall reach the age of twenty-one years, and she shall share in my estate as my other grandchildren as hereinafter provided, but in the event the said Doris L. Robinson shall not be given in charge of my said trustees by her mothers relatives, or she, herself, shall refuse to go into my said trustees' charge, then the said amount of three thousand ($3,000.00) dollars shall be the only amount she shall receive from my estate.

'IV. To pay and distribute among my wife, Lizzette G. Robinson, and my daughters Rose Robinson Lewis and Beulah Robinson Lewis, in the proportions of one-fourth to my said wife and one-eighth to each of my said daughters, during life, of the net annual income received from my properties, of whatever kind or character, said distribution of the above percentage of income to be paid to the beneficiaries herein named, annually, quarterly or monthly as my trustees may elect, or as in their opinion shall be most beneficial to the beneficiaries herein named, I give them absolute authority to act in this behalf; in the event of death of either or any of the beneficiaries herein named, or of their children, taking by substitution after their death, then I direct that the proportion of the income of such deceased person or persons be divided among the issue of such deceased person, and in the event such deceased person should have no living issue or direct descendants thereof then I direct that the proportion of such beneficiary or beneficiaries shall be divided equally among the surviving beneficiaries in equal proportion.

'V. I direct that my estate shall be held in trust by my said trustees, for the beneficiaries above named and their issue taking by substitution, until twenty-one years after the decease of any now living grand-child who may die last.

'VI. I direct that when the said trust herein created shall terminate that then my estate shall be divided equally in the proportions to which their ancestors are entitled, among the surviving heirs of the issue of the beneficiaries herein named, provided, however, that no portion of my estate, except the special bequest of $3,000.00 shall go to my grand-daughter Doris L. Robinson, or her issue, unless the provisions of article three of this will shall have been strictly complied with.'

The first clause of item VII of the will is pertinent because it shows that the testator is dealing separately with the corpus of the estate on one hand and the income of the estate on the other. The first paragraph of item VII is as follows:

'I direct that after paying the beneficiaries the proportion of the income to which they are entitled each year, that then my said trustees shall invest the remaining fifty per cent less such amount as may be needed for my grand-daughter, Doris L. Robinson, as provided in Article #3 hereof, for the benefit of my estate, and that such investments shall only be made in the following classes of securities, to-wit:...