Pancoast v. Pancoast

• Decision Date: 12 December 1958
• Docket Number: No. 701,701
• Citation: 107 So.2d 787
• Parties: Elizabeth L. PANCOAST, Appellant, v. Mary L. PANCOAST, as Successor-Trustee, et al., Appellees.
• Court: Florida District Court of Appeals

Page 787

107 So.2d 787

Elizabeth L. PANCOAST, Appellant, v. Mary L. PANCOAST, as Successor-Trustee, et al., Appellees.

No. 701.

District Court of Appeal of Florida, Second District.

Dec. 12, 1958.

Rehearing Denied Jan. 19, 1959.

William H. Corum, Winter Haven, O. K. Reaves, Mabry, Reaves, Carlton, Fields & Ward, Tampa, for appellant.

Allen, Dell, Frank & Trinkle, John R. Trinkle, Jr., Ralph C. Dell, Tampa, John R. Trinkle, Plant City, for appellees Mary L. Pancoast, R. H. C. Pancoast, and Harry M. Pancoast, Jr.

Roe H. Wilkins, Maguire, Voorhis & Wells, Orlando, for appellees Florence E. Wilkins and Juanita Secrest.

ALLEN, Judge.

This is an appeal from the final decree in a suit for declaratory relief whereby plaintiff sought to have a will construed.

Elizabeth L. Pancoast, a daughter-in-law of the testatrix, Sarah N. Pancoast, sued Mary L. Pancoast, as successor-trustee of the Sarah N. Pancoast estate, and the tow surviving sons of Sarah, averring that Sarah died in 1945, leaving a will conveying all her property to her husband, Harry M. Pancoast, in trust for their three sons; that about a year after the death of Sarah, her son B. K. Pancoast, the husband of plaintiff, died intestate, leaving the plaintiff, his widow, and two daughters as his heirs-at-law; that the daughters conveyed their respective interests in B. K.'s estate to the plaintiff; that notwithstanding the said trust was personal and a successor-trustee was not contemplated, the Court, upon petition of the two surviving sons and without notice to plaintiff, appointed the defendant, Mary L. Pancoast, the second wife of the named trustee, as successor-trustee.

The Complaint prayed that an accounting be made by the acting trustee and by the two surviving sons, of what they had received from the estate; that the plaintiff be declared to be the owner of a one-third undivided interest in the Sarah Pancoast estate; that the trust be decreed to have terminated; and that the trust corpus and accrued income be distributed.

Plaintiff's two stepdaughters intervened, denying that the instruments executed by them to the plaintiff conveying their interests in the estate of B. K. Pancoast their father, had the effect of conveying any interest which might have come to their deceased father through his mother, Sarah.

Mary L. Pancoast, the successor-trustee, and the two surviving sons of Sarah answered, averring that the effect of the Will was to create cumulative life estates; that upon the death of B. K. Pancoast, his part passed to the two surviving sons; that when another dies the entire estate will pass to the survivor; and that the trust must continue until the death of the last, unless before that time the trustee sees fit to distribute the estate, in which event, and not until then, the trust will have served its purpose.

The chancellor handed down a Summary Decree in favor of defendants, which was reversed by this Court (Pancoast v. Pancoast, Fla.App.1957, 97 So.2d 875) upon the ground that testimony should have been taken so that the chancellor could determine from the evidence the intentions of the testatrix before construing the Will.

Testimony was taken, and the Court again found for defendants upon the ground that the Will created life estates in the three sons of the testatrix, and that when B. K. Pancoast died about a year after his mother, his interest passed to the two surviving brothers. The chancellor also held that the trust will continue until the last brother dies, unless before that time the successor-trustee distributes the whole of the estate as she has the power to do at any time, and that in the event the whole of the estate shall not be so distributed, the remainder will, upon the death of the last surviving son, be administered under the laws of descent and distribution as the Estate of Sarah N. Pancoast.

The involved Will was written June 3, 1938, and the testatrix died April 14, 1945. One of the three beneficiaries, B. K. Pancoast, a son, died intestate August 29, 1946, leaving the plaintiff, his widow, and two daughters as his heirs-at-law. H. M. Pancoast, the trustee, husband of the testatrix and father of the three sons, died survived by two sons September 1, 1954. Mary L. Pancoast, the present successor-trustee was appointed November 16, 1954.

This is the second time this case has come before this court. On the first appeal, it was held that, the Will being ambiguous, it was necessary for the lower court to take testimony to develop all the facts and circumstances surrounding the execution of the Will so as better to determine the intent of the testatrix in using the language she employed in the Will. The case was reversed and remanded with directions to the lower court to determine, from all the testimony, the intention of the testatrix at the time of the execution of said Will. The opinion of this court, (see Pancoast v. Pancoast, Fla.App.1957, 97 So.2d 875, 876) written by the late Robert J. Pleus, one of the original Judges of this curt, whose untimely death cut short a life that showed great judicial promise, said:

'The language used by the testatrix in the Will involved and viewing the entire will immediately raises serious doubts and renders the intention of the testatrix obscure. There being such doubt and obscurity resort was made to the rules or canons of testamentary construction. By employing specific canons and ignoring others the will could be the subject of four or five different interpretations, each carrying its own result as to the disposition of the property and the rights of the parties to this cause. Which of these canons to adopt and whether any may be specifically applicable can therefore be determined only if the terms of the will be read in the light of all the circumstances surrounding the testatrix at the time of its execution. * * *

'The fundamental and controlling axiom is to ascertain and effectuate the intention of the testator as gathered from what was written in the will. Wallace v. Julier, 1941, 147 Fla. 420, 3 So.2d 711. In order to do this the court should as nearly as humanly possible try to put itself in the place of, or the armchair of, the testator. To accomplish this it is proper to consider all circumstances surrounding the execution of the will, the condition, nature, and extent of the property devised, the testator's relationship and attitudes toward the members of his family and to the beneficiaries of the will, their financial condition and in general the relationship between all the parties concerned, including, as in this case, the trustee. 57 Am.Jur., Wills, Section 1144. Florida courts have consistently followed this practice. Roberts v. Mosely, 1930, 100 Fla. 267, 129 So. 835; Marshall v. Hewett, 1945, 156 Fla. 645, 24 So.2d 1; Iles v. Iles, 1947, 158 Fla. 493, 29 So.2d 21.'

Testimony was taken before the lower court in accordance with this Court's direction, and a decision was rendered similar to the former decision rendered by the chancellor.

The final decree, which distinctly sets out the facts involved, states:

'This case turns on the interpretation of Item III of the Will of Sarah N. Pancoast, deceased. As directed by the Appellate Court, this Court had tried to place itself in the arm chair of the testatrix to arrive at her intent, as gathered from what is written in the Will and considering the circumstances surrounding its execution and the relationship of the parties involved.

'Sarah N. Pancoast died and was at that time survived by her husband, Harry M. Pancoast and three sons, all being sui juris, and none being under any disability, B. K. Pancoast, R. H. C. Pancoast and Harry M. Pancoast, Jr.; that the said Sarah N. Pancoast died leaving a Will which was admitted to probate in the County Judge's Court of Hillsborough County, Florida, on May 3, 1945, with Letters Testamentary being issued to her husband, the said Harry M. Pancoast, the executor named in said Will, on May 3, 1945; that on August 29, 1946, one son, B. K. Pancoast, died intestate, leaving a widow and two daughters of his by a prior marriage, Juanita Pancoast and Mrs. Florence Wilkins. The plaintiff in this suit is the widow of B. K. Pancoast, while the said two daughters are the intervening defendants. On or about September 1, 1954, the said Harry M. Pancoast died leaving surviving him a second wife, Mrs. Mary L. Pancoast, and his sons, the said R. H. C. Pancoast and Harry M. Pancoast, Jr.; that subsequent to the death of the said Harry M. Pancoast, on petition of the said R. H. C. Pancoast, and to which proceeding the other son, Harry M. Pancoast, Jr., was made a party, the Circuit Court of Hillsborough County Florida, appointed the said Mary L. Pancoast as Successor Trustee under the Will of Sarah N. Pancoast, deceased, to Harry M. Pancoast, deceased, on Novemver 16, 1954, which proceedings were in full compliance with the then existing laws of the State of Florida. The defendants in this suit are the said Mary L. Pancoast, as Successor Trustee, and the two living sons of Sarah N. Pancoast, R. H. C. Pancoast and Harry M. Pancoast, Jr.

'Item III of said Will provides:

"All the rest and residur of my estate, real, personal, and mixed, wheresoever situate, which I may die seized and possessed, I do hereby give and grant to my husband, Harry M. Pancoast; to hold such remainder, however, in trust for the use and benefit of my three sons:

B. K. Pancoast, Seffner, Florida

R. H. C. Pancoast, Los Angeles, California.

Harry M. Pancoast, Jr., Riverside, California.

or to such of my sons as shall survive me, or in the event of the death of one or more of my said sons, his, or their, share to go to my son or sons, then living; and I do hereby direct my said Trustee to pay to my said sons, either from the income or principal of my estate, such sum or sums as he shall deem necessary for their needs, from time to time, or would be convenient to my said estate, said disbursements to be made...