Sinnes v. Pereno, 93-1345

• Decision Date: 28 December 1993
• Docket Number: No. 93-1345,93-1345
• Citation: 629 So.2d 995
• Parties: 19 Fla. L. Weekly D65 Richard A. SINNES, Appellant, v. August J. PERENO and Dominick J. Napoli, Jr., as Co-personal Representatives of the Estate of Dominick J. Napoli, a/k/a Dan Napoli, a/k/a Damin Napoli, Deceased, Appellees.
• Court: Florida District Court of Appeals

Page 995

629 So.2d 995

19 Fla. L. Weekly D65

Richard A. SINNES, Appellant, v. August J. PERENO and Dominick J. Napoli, Jr., as Co-personal Representatives of the Estate of Dominick J Napoli, a/k/a Dan Napoli, a/k/a Damin Napoli, Deceased, Appellees.

No. 93-1345.

District Court of Appeal of Florida Third District.

Dec. 28, 1993.

Barnett Robinson, Jr., Boca Raton, for appellant.

J. Bruce Hoffman, Miami, Hendricks & Hendricks and Robert Hendricks, Coral Gables, for appellees.

Before JORGENSON, LEVY and GERSTEN, JJ.

JORGENSON, Judge.

Richard A. Sinnes appeals from an order of the probate division of the circuit court determining that a bequest to Sinnes under the will of Dominick J. Napoli lapsed due to Sinnes' failure to fulfill express conditions precedent to the bequest. For the following reasons, we reverse.

The testator died on June 24, 1991, leaving an estate in excess of $7,000,000. One of the codicils to the testator's last will and testament provided:

Further, I revoke and annul the bequest of Fifty Thousand ($50,000.00) Dollars made to RICHARD SINNES, in Article XII, Paragraph B, Subparagraph 1 of my said Will; and in lieu and substitution thereof I bequeath the sum of Fifty Thousand ($50,000.00) Dollars to RICHARD SINNES, if he shall be employed by DAN NAPOLI, individually, and DAN NAPOLI, d/b/a DAN NAPOLI MORTGAGE COMPANY, as an accountant at the time of my death, provided as follows:

A. That RICHARD SINNES shall serve as Trustee for the full term of any trust created by this Will.

B. That RICHARD SINNES shall serve as the accountant for my estate, and that, in the opinion of my Personal Representative, his fees are reasonable, and, further, that the quality of his work is at least equal to generally acceptable performance within his profession.

C. If any, or all, of these conditions shall fail, then this gift shall lapse and be distributed pursuant to Paragraph B of this Article XII, Subparagraph 1; this gift shall not be distributed to RICHARD SINNES until all trusts created under this Will shall have terminated.

Sinnes is the husband of one of the testator's grandchildren and the father of three of the testator's great-grandchildren. Sinnes and the testator had a close business and personal relationship and Sinnes served as accountant for the testator's mortgage company until his death.

The testator nominated as his two co-personal representatives, his son Dominick J. Napoli, Jr., and his attorney, August J. Pereno. Dominick, Jr., and Pereno also were named as two of the residuary legatees of the estate. Immediately following the testator's death, Dominick, Jr., instituted a will contest proceeding and the formal appointment of the co-personal representatives was delayed. Pereno petitioned the court and requested that Sinnes be appointed curator of the estate during the interim to marshal and protect the assets of the estate. Sinnes was appointed curator and performed the duties of collecting assets and paying debts. Sinnes also acted as accountant for the estate and prepared and filed the Federal Estate Tax Return, Form 706. The tax return later passed an audit. ¹ Dominick, Jr., and Pereno resolved their differences and were finally appointed co-personal representatives; Sinnes filed his final accounting as curator and applied for fees in excess of $70,000. The court then awarded Sinnes $61,916.25 as a reasonable curator's fee.

At this point, the relationship between Sinnes and the co-personal representatives soured. Sinnes, being aware of the conditions to his bequest, advised the co-personal representatives that he was ready, willing, and able to serve as the estate accountant and trustee. However, Dominick, Jr., felt that Sinnes had severely overcharged for his services as curator. Without asking Sinnes what his fee would be for serving as estate accountant, the co-personal representatives refused to appoint Sinnes to the position, thereby precluding him from fulfilling one of the conditions of his bequest. The co-personal representatives successfully petitioned to terminate the trusts under the will and Sinnes was therefore prevented from serving as trustee. The co-personal representatives then filed a petition to determine beneficiaries. The trial court found that the intent of the testator was that Sinnes' bequest should lapse if the express conditions precedent were not fulfilled.

The trial court abused its discretion in determining that the intent of the testator was that the bequest lapses. Sinnes' position as a member of the testator's family and as a close business associate make him a natural object of the testator's bounty. Sinnes' ability to...