Henderson v. Usher

• Decision Date: 12 March 1935
• Citation: 160 So. 9,118 Fla. 688
• Parties: HENDERSON et al. v. USHER et al.
• Court: Florida Supreme Court

160 So. 9

118 Fla. 688

HENDERSON et al. v. USHER et al.

Florida Supreme Court, Division B.

March 12, 1935

Suit by Harry A. Usher and another, as executors and trustees under the last will and testament of Frank Duff Frazier, deceased against Marjorie Afflect Frazier Henderson and husband and others. From an order denying a motion to quash the service of summons upon defendant named, defendants appeal.

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

COUNSEL

E. J L'Engle and J. W. Shands, both of Jacksonville, Winters Foskett & Wilcox, of West Palm Beach, and Chadbourne, Stanchfield & Levy, of New York City, for appellants.

Wideman, Wideman & Wardlaw and Manley P. Caldwell, all of West Palm Beach, Fred M. Valz and Robert H. Anderson, all of Jacksonville, and Jackson, Fuller, Nash & Borphy and Sullivan & Donovan, all of New York City, for appellees.

OPINION

TERRELL Justice.

In 1923 Clara Duff Frazier, a citizen of West Palm Beach, executed a trust agreement for the benefit of her son, Frank Duff Frazier, and his children. The trust agreement was executed in New York, and the Equitable Trust Company of New York was named as trustee with power to execute the trust. The corpus of the trust was delivered to the trustee. Under the terms of the trust agreement, Frank Duff Frazier was empowered to appoint, by his last will and testament, $100,000 of the securities described therein.

In 1933 Frank Duff Frazier died leaving a will in which he designated Harry A. Usher, of Mountain Lake, N. J., and John G. Jackson, of New York City, as his trustees. His will created a testamentary trust in which his widow, Marjorie Affleck Frazier, was to be paid the net income therefrom during her natural life, with remainder over to his child by a former marriage, Brenda Diana Duff Frazier, with contingent remainder to Yale University. Clara Duff Frazier predeceased her son, Frank Duff Frazier.

The widow and child of Frank Duff Frazier survived him and both were residents of Florida at the time of his death. He had no other heirs. His widow, the appellant, has since remarried and is now a citizen of New York City. She dissented from the terms of the will in her behalf and elected to take dower as provided in sections 3629 and 3630, Revised General Statutes of 1920, sections 5493 and 5494, Compiled General Laws of 1927.

Having elected dower in lieu of the provision for her in the will, the question arose as to whether or not the widow is entitled to the income from the trust securities bequeathed to her under the power of appointment granted Frank Duff Frazier by his mother, Clara Duff Frazier. The further question was raised as to whether or not by virtue of the terms of the will and the power of appointment the widow could take anything thi57 under it after her dissent therefrom and her election to take dower.

This suit was brought by Harry A. Usher and John G. Jackson, as trustees under the will of Frank Duff Frazier, against Marjorie Affleck Frazier Henderson, joined by her husband, Holcombe Henderson, Brenda Diana Duff Frazier, and Yale University, parying that the court construe decedent's will and determine and declare what rights, if any, the defendants have under the exercise of said power of appointment by Frank Duff Frazier, and that the court instruct and direct plaintiffs in accordance with such determination and adjudication.

When the bill of complaint was filed, constructive service pursuant to section 3111, Revised General Statutes of 1920, section 4895, Compiled General Laws of 1927, was obtained on Marjorie Affleck Frazier Henderson. It is admitted that the form of the service and the affidavit for it are sufficient. On the return day named in the order of publication, Mrs. Henderson entered her special appearance and motion to quash the service. The motion to quash was denied and this appeal was prosecuted therefrom.

The main question argued here is that the constructive service secured on Mrs. Henderson is ineffective because she is a nonresident and the res sought to be effected by the litigation is not within the jurisdiction of the Florida court.

In support of her contention appellant relies on Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565; First Nat'l. Bank of Rome, Georgia v. First Nat'l. Bank of Jasper, Florida (C. C. A.) 264 F. 83, affirmed in 254 U.S. 622, 41 S.Ct. 7, 65 L.Ed. 443; and Watts v. Alexander, Morrison & Co. (D. C.) 34 F. (2d) 66. These cases in effect hold that constructive service is warranted only where there is a res within the custody or control of the court, and then only for the purpose of adjudicating the rights, if any, of nonresidents in and to it.

The record discloses that Clara Duff Frazier, the creator of the inter vivos trust in favor of Frank Duff Frazier, was a citizen of Florida. It is also known that Frank Duff Frazier, who created the trust in favor of his wife, the appellant here, was also a citizen of Florida, though the res being the same in both trusts was never physically in this state but was in the Equitable Trust Company, later the Chase National Bank of New York, which was administering it. Brenda Diana Duff Frazier was a citizen of Florida. Mrs. Marjorie Affleck Frazier, now Henderson, was at the time of the creation of the trust in her behalf a citizen of Florida but has since become a citizen of New York. The trustees under the will of Frank Duff Frazier are citizens of New York and New Jersey, but the will was probated in Florida and the trustees have brought it into the courts of Florida to have it construed.

In this state of the record it is not essential that the res, that is, the assets of the trust, be physically in the state in order that constructive service be binding on the appellant. The testator was a citizen and resident of Florida when the will was executed and when he died, the appellant was a citizen of Florida when the will was executed, the will was probated under Florida law, and has been brought into the courts of Florida to be construed. Since the interpretation of the will is the primary question with which we are confronted, we are impelled to hold that the res is at least constructively in this state and that the Florida courts are empowered to advise the trustees how to proceed under it and what rights those effected have in it. For the immediate purpose of this suit the will is the res, and when that is voluntarily brought into the courts of Florida to be construed, the trust created by it is to all intents and purposes brought with it.

But we are importuned to adjudicate the status of the securities incorporated in the trust estate. This is not like adjudicating the rights of Mrs. Henderson in and to real estate or subjecting property owned by her in this state to the payment of some claim against her, she being a nonresident. Constructive service arose from such cases and is essential to due process. State ex rel. Trustee Realty Co. v. Atkinson, 97 Fla. 1032. 122 So. 794; Balan v. Wekiwa Ranch, 97 Fla. 180, 122 So. 559.

We have examined State v. Beardsley, 77 Fla. 803, 82 So 794; Lines v. Lines, 142 Pa. 149, 21 A. 809, 24 Am. St. Rep. 487; Martin v. Martin, 214 Pa. 389, 63 A. 1026; and Minot v. Tilton, 64 N.H. 371, 10 A. 682, relied on by appellant. But we do not think they are in conflict with this...