Macfarlane v. First Nat. Bank of Miami

• Decision Date: 03 October 1967
• Docket Number: No. 67--92,67--92
• Citation: 203 So.2d 57
• Parties: Stewart MACFARLANE, Individually and as Co-Executor of the Last Will and Testament of James Macfarlane, Deceased, James Macfarlane and Janet Macfarlane Semple, Appellants, v. The FIRST NATIONAL BANK OF MIAMI, as Trustee et al., Appellees.
• Court: Florida District Court of Appeals

Page 57

203 So.2d 57

Stewart MACFARLANE, Individually and as Co-Executor of the Last Will and Testament of James Macfarlane, Deceased, James Macfarlane and Janet Macfarlane Semple, Appellants, v. The FIRST NATIONAL BANK OF MIAMI, as Trustee et al., Appellees.

No. 67--92.

District Court of Appeal of Florida, Third District.

Oct. 3, 1967.

Rehearing Denied Nov. 6, 1967.

Sibley, Giblin, Levenson & Ward, Miami Beach, Kurtz & Cooper, Miami, for appellants.

Shutts & Bowen and Cotten Howell, Scott, McCarthy, Steel, Hector & Davis, Miami, for appellees.

Before CHARLES CARROLL, C.J., and PEARSON and SWANN, JJ.

PEARSON, Judge.

The appellants are a co-executor and the beneficiaries under the last Will of James Macfarlane, deceased. As plaintiffs in the circuit court they sought a declaration that assets held by the First National Bank, as Trustee, were assets of the estate. The defendants in the circuit court, and appellees here, are the Bank, a co-executor of the same Will and individuals who are the ultimate beneficiaries of a revocable trust established by James Macfarlane, deceased. The issue tried was whether the trust had been revoked by James Macfarlane prior to his death.

The trial judge made findings as follows:

'The pertinent provision of the Revocable Trust provides: 'Provided always, nevertheless, that it shall be lawful for James Macfarlane, the grantor, at anytime during his natural life, by any deed or writing under his hand and seal, duly attested by two subscribing witnesses, or by his last will and testament or other writing in nature thereof, duly attested by two subscribing witnesses, to alter, change, revoke, make mull and void, the said use and uses, estate and estates, hereby limited or created, * * *' The documents entitled Revocation of Trust and Consent of Beneficiaries were not delivered to the Trustee during the life of James Macfarlane. The primary issues for determination are whether the two documents were effective to revoke the Trust, and whether the Last Will and Testament of James Macfarlane revoked the Trust.

'Upon consideration of the pleadings and evidence and all of the proceedings, the Court makes the following findings of fact and conclusions of law:

'1. The method of revocation specified in the Revocable Trust was not compiled with and the Trust was not revoked.

'2. The Last Will and Testament of James Macfarlane did not revoke the Trust.

'3. Plaintiffs claim that delivery of the documents entitled Revocation of Trust and Consent of Beneficiaries was not necessary because of alleged acts of Jessie D. Macfarlane, a wife of James Macfarlane. This issue was tried over objections of some of the Defendants, and the Court finds against the Plaintiffs on this issue, and finds the evidence was insufficient to support Plaintiffs' claim. Moreover, a trust officer of the Trustee conferred with James Macfarlane on occasions subsequent to May 11, 1958, and the Trustee sent statements of the trust account to James Macfarlane from time to time, therefore, he had full knowledge that the said Revocable Trust was not revoked.' (Emphasis supplied)

On this appeal the appellants have argued two points. The first maintains that the trial judge misapprehended the legal effect of the evidence and thereby erred in finding that the revocation of trust executed by James Macfarlane was not delivered. The second maintains that as a matter of law, the document entitled revocation of trust was not required to be delivered by the trust agreement and that therefore the trial judge erred in finding as a matter of law that the method of revocation specified in the revocable trust was not complied with and that the trust was not revoked. We proceed here with a discussion of appellants' second point and inasmuch as we reach a holding that the decree was erroneous as a matter of law, we do not proceed further.

The probative or evidentiary facts are not in substantial conflict. It is the conclusions of fact or ultimate facts which present conflict. On October 4, 1956, James Macfarlane executed a revocable trust designating The First National Bank of Miami as trustee. He was at that time a man of some 80 years of age and his wife was only a few years younger. The trustee has administered the trust continuously from October, 1956. Under the terms of the trust, the grantor deposited with the Bank, securities of the approximate value of $400,000. The trust provided that if his wife, Jessie Macfarlane, survived the grantor, she was given a life interest and power to dispose of the trust by will. If she failed to exercise the power then the trust property was to be paid to nieces and nephews of Jessie Macfarlane.

Mrs. Macfarlane survived Mr. Macfarlane, but she did not exercise the power during her lifetime. Thus, if the trust was revoked, the trust property would pass under the will of James Macfarlane. If not revoked, it would pass under the trust agreement. A will subsequently probated gives one-half of his estate to his children by a prior marriage. The complaint which gave rise to this litigation sought a declaratory decree determining the rights of the parties.

During 1958, there was some discussion and communication about Mr. Macfarlane wanting to revoke the trust. In January Mr. Henry Kurtz, a Miami attorney, was employed by Mr. Macfarlane to prepare a revocation of trust instrument. It was prepared and forwarded to Mr. Macfarlane. Mrs. Jessie Macfarlane, wife of the settlor, came to Miami from their home in Havana, Cuba to discuss the matter with attorney Henry Kurtz and the trustee. During the visit she sought to enlist the Bank's help to dissuade Mr. Macfarlane from terminating the trust. Subsequently, Mrs. Macfarlane advised Mr. Kurtz that Mr. Macfarlane had changed his mind and had decided for the present not to disturb the trust.

On March 5, 1958, Mr. Macfarlane addressed a letter to the trustee which stated: '* * * please sell all the securities you are holding in my name or in the name of Jessie D. Macfarlane, at the price you paid for them or at higher price if possible.' The letter was received by the trustee on March 13, 1958, after which Mr. Swenson, one of the officers of the trustee, called Mr. Macfarlane by phone and made an appointment to discuss the matter in person. On March 28, 1958, Mr. Swenson talked with Mr. Macfarlane in Havana, Cuba, and pointed out to him the disadvantages of revoking the trust. After these discussions, Mr. Macfarlane said 'that he did not want to revoke the trust at that time.'

On May 11, 1958, Mr. Macfarlane signed the instrument entitled revocation of trust which Mr. Kurtz had prepared. The Macfarlane chauffeur was present at Mr. Macfarlane's office in Havana at the time the document was executed in duplicate or triplicate. He testified that after execution 'they put them in envelopes' and that the original was delivered to Mrs. Macfarlane by her husband with instructions to mail it to The First National Bank in Miami. The revocation was not delivered to the trustee during the life of James Macfarlane.

In October 1958, Mrs. Macfarlane made another trip to Miami and conferred with the Trustee about the revocation of the trust; however, nothing was done. The trustee continued to administer the trust and sent Mr. and Mrs. Macfarlane reports and statements regularly. In May 1959, Mr. Edward Swenson again went to Cuba and talked with Mr. and Mrs. Macfarlane 'to bring them up to date as to how the trust was doing.'

The trustee thereafter continued the practice of periodically sending to Mr. and Mrs. Macfarlane letters and statements covering the trust. These letters and statements were addressed to Mr. Macfarlane's office address in Havana; he personally...