Porter v. Baynard
| Decision Date | 11 October 1946 |
| Citation | 28 So.2d 890,158 Fla. 294 |
| Parties | PORTER et al. v. BAYNARD et al. SAME v. UNION TRUST CO. et al. |
| Court | Florida Supreme Court |
Rehearing Denied Nov. 21, 1946.
Appeal from Circuit Court, Pinellas County; T. Frank Hobson judge.
Howard E. Joseph of Cincinnati, Ohio, Anna A. Krivitsky, of Tampa, Boyd Roebuck, of Cincinnati, Ohio, and Joseph & McClelland, of Columbus, Ohio, for appellants.
Harris & Kooman, of St. Petersburg, for Union Trust Co.
James T. Smith, of St. Petersburg, for Bertha Pauline Genau.
Robert S. Baynard, of St. Petersburg, for executor.
Ann Porter died on December 20, 1940. She left a will and two codicils which were admitted to probate on January 2, 1941, by the County Judge's Court of Pinellas County, Florida, and letters testamentary issued on the same day to Robert S. Baynard, as executor under the will. The estate was valued at approximately $180,000, and among the assets were two hotels situated in St. Petersburg called the Albermarle Sr. and Albermarle Jr., of an appraised value of $120,000. These two hotels, by the terms of the will, were devised to the Union Trust Company, of St. Petersburg, in trust.
The Union Trust Company and Robert S. Baynard, as executors, filed separate suits in the Circuit Court of Pinellas County under the provisions of Section 87.01 et seq., Fla.Stats.1941, F.S.A., praying for specific instructions as to their legal duty based on many of the provisions of the last will and testament of Ann Porter. Attached to the bill of complaint are copies of the will and codicils. The two suits were consolidated and a single final decree entered in the lower court which disposed of the two suits. An appeal has been perfected here, where the two suits were argued together pursuant to an order of consolidation.
Section 19 of the last will and testament of Ann Porter provides:
'I give, devise and bequeath to the Union Trust Company, of St. Petersburg, Florida, in trust nevertheless, the properties known as follows:
'Hotels Albermarle Sr. furnished and equipped, and Albermarle Jr. furnished and equipped to create a Memorial Fund to be known as the Porter-Genau Memorial Fund in honor of my deceased husband and two brothers, which properties are described as follows: * * * said properties and certain net income therefrom to be used to create a memorial fund in honor of my deceased husband, Edward Jarvis Porter, and my two brothers, George Carl Genau, and Anthony Henry Genau, the said memorial to be known as the Porter-Genau Memorial Fund. In addition to the foregoing properties and that portion of the hereinafter directed invested net income from said properties that shall be added to the principal of said fund there shall also be added to the principal of said Fund the proceeds from Policy No. 8409-292, Equitable Life Assurance Society of New York on the life George M. Coslick, I being the irrevocable beneficiary under this policy. The proceeds from said policy are to be invested and re-invested in good, substantial investments by my trustee and onehalf of the net income therefrom is to be used with certain other net income from the properties or investments of the Porter-Genau Memorial Fund in carrying out the charitable bequests hereinafter in this will made.
'This Memorial, In Trust Nevertheless, is for the following uses and purposes:
'I direct that one-half of the annual net income from the properties or investments in this Will devised in trust for said fund shall be placed in good, substantial investments and included among said investments is to be the annual premium of $548.70 due April 2nd upon the aforesaid policy No. 8409-292 until the principal is realized from the said policy. The said one-half of the annual net income to be invested and re-invested from time to time as the trustee may deem to the best interest of the trust, in substantial investments and is to be used entirely for the preservation of the Porter-Genau Memorial Fund in perpetuity.
'The other one-half of the net income derived properties and investments belonging to said memorial fund is to be used for annual donations from the Porter-Genau Memorial Fund to the following organizations:
Florida ................................ $200.00
'The said above donations are to be paid on June 1st of each and every year.
'I further direct my trustee that the foregoing amounts are to be increased or decreased proportionately, according as the total amount of the net one-half income from the properties heretofore placed in trust shall bear to the respective amount given to each charitable beneficiary.
'(1) My Trustee is directed to lease the said Albermarle Hotels for a period of from eight to ten years after my Executor has finished the administration of my estate and to collect the rents from said properties, pay taxes, and assessments thereon, keep the same in proper and good repair and to look after the said hotel properties in a business like manner.
Paragraph 19 of the Ann Porter will, supra, created or established the Porter-Genau Memorial Fund for the purpose of honoring the memory of testator's deceased husband and two brothers. Hotels Albermarle Sr. and Albermarle Jr., with furnishings and equipment, located in St. Petersburg, Florida (estimated value of the two hotels fixed at approximately $120,000), were by the terms of paragraph 19 devised to the Union Trust Company in trust: 'and the properties and certain net income therefrom to be used to create a memorial', 'and the said memorial to be known as the Porter-Genau Fund'.
Sub-section (1) of paragraph 19 directed the trustee to lease the hotels for a period of from eight to ten years after the executor finished the administration of the estate and to collect the rents from the properties, pay taxes, and assessments thereon, keep the same in proper and good repair, and to look after the hotel properties in a businesslike manner.
Sub-section (2) of paragraph 19 directs the trustee that after leasing the hotel properties from eight to ten years, if at that time it was deemed advisable and for the 'best interest of the trust aforesaid', then the hotel properties are to be sold. The price offered for the properties and the sale of the same to be approved by the County Judge of Pinellas County, Florida. The proceeds derived from the sale of the hotel properties shall be invested and re-invested in good, substantial investments, 'and the net income derived therefrom is to be used for the carrying out of the terms of the heretofore created trust.'
Paragraph 19 provides that the Porter-Genau Memorial Fund shall receive the proceeds from Policy No. 8509-292, issued by the Equitable Life Assurance Society on the life of George M. Coslick. The proceeds from said policy must by the trustee be invested and re-invested in good, substantial investments, 'and one-half of the net income therefrom is to be used from the properties or investments of the Porter-Genau Memorial Fund in carrying out the charitable bequests of the will'.
Paragraph 19 further provides that moneys appearing to the credit of the Porter-Genau Memorial Fund shall be handled by the trustee viz: 'one-half of the annual net income from the properties or ivestments * * * devised in trust for said fund shall be placed in good, substantial investments and included among said investments is to be annual premium of $548.70 * * * until the principal is realized from said policy.' The said one-half of the annual net income to be invested and reinvested from time to time as the trustee may deem to the best interest of the trust, in substantial investments and is to be used entirely for the preservation of the Porter-Genau Memorial Fund in perpetuity. It further provides that the other one-half of the net income derived from the properties and investments belonging to said Memorial Fund is to be used for annual donations from the...
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