Timmons v. Ingrahm, 5D08-4103.

• Decision Date: 04 June 2010
• Docket Number: No. 5D08-4103.,5D08-4103.
• Citation: 36 So.3d 861
• Parties: Frank G. TIMMONS, Jr. and Jacquelyn Timmons Forman, Appellants,v.Myrtle Timmons INGRAHM, etc., et al., Appellees.
• Court: Florida District Court of Appeals

36 So.3d 861

Frank G. TIMMONS, Jr. and Jacquelyn Timmons Forman, Appellants,v.Myrtle Timmons INGRAHM, etc., et al., Appellees.

No. 5D08-4103.

District Court of Appeal of Florida,

Fifth District.

June 4, 2010.

Frank M. Bedell and James Edward Cheek, of Winderweedle, Haines, Ward & Woodman, P.A., Orlando, for Appellants.

J. Steven Garthe and Carly R. Fishpaugh, of Heebner, Baggett, Upchurch & Garthe, P.L., Daytona Beach, for Appellees.

EVANDER, J.

Frank G. Timmons, Jr., and Jacquelyn Timmons Forman (hereinafter jointly referred to as “the Timmons”) appeal from a final summary judgment entered in favor of co-trustees Myrtle Timmons Ingrahm and David Carter. We find that the trial court erred in failing to accord the term “lineal descendants” its legal definition in determining the intent of the testator/settlor, Frank Timmons, Sr. (“Frank Sr.”) Accordingly, we reverse the summary final judgment entered in favor of the co-trustees and direct that partial summary judgment be entered in favor of the Timmons.

At the time of his death in 1999, Frank Sr. was married to Myrtle Timmons, n/k/a, Myrtle Timmons Ingrahm (“Myrtle”). He had two adopted children, the Timmons, from a previous marriage. Myrtle had four children-none of which was ever adopted by Frank Sr.

In his will, Frank Sr. created two trusts: the Timmons Family Trust (“Family Trust”) and the Timmons Marital Trust (“Marital Trust”).¹ The Timmons Family Trust was valued at $650,000. The more substantial portion of Frank Sr.'s estate was placed in the Marital Trust. Myrtle was the sole income beneficiary of the trusts during her lifetime. She was also empowered, in her sole discretion, to annually remove from each trust, up to $5,000 or five percent (5%) of the principal, whichever was greater. The co-trustees were also given authority to encroach on the trusts' principal as necessary for Myrtle's maintenance and support. The Marital Trust provided that upon Myrtle's death, the trust's remaining principal (after payment of estate taxes) would be “poured over” into the Family Trust and distributed in accordance with the terms of the Family Trust. The Family Trust provided that upon Myrtle's death, the trust assets were to be divided “into as many equal shares as there are children of mine then living and deceased children of mine leaving issue then surviving.”

Frank Sr.'s will expressly defined “children” to include both his adopted children and Myrtle's children:

For the purposes of this Will, the term “children” shall include, in addition to my natural and adopted children, the children of my wife, MYRTLE C. TIMMONS.

Thus, if Myrtle had died shortly after Frank Sr., the principal of the Marital Trust would have “poured over” into the Family Trust, and the then-existing principal of the Family Trust would have been equally divided between the six “children”-Frank Sr.'s two children and Myrtle's four children.

The instant dispute arose as the result of Myrtle's attempt, in 2007, to disinherit the Timmons through the purported exercise of a limited power of attorney granted to Myrtle in the Family Trust. The applicable provision reads as follows:

[M]y said wife shall have the further limited power at any time during her lifetime to appoint by specific reference to this power in an instrument in writing executed and delivered to the Trustee all or any part of the principal of this trust, free and clear of any trust to and among my then living lineal descendants in such proportions and subject to such trust and conditions as she may direct. This limited power of attorney may be exercised by said wife even to the point of completely exhausting the entire corpus trust of this trust estate.

(Emphasis added.) Specifically, Myrtle executed a document entitled “Exercise of Limited Power of Appointment” that attempted to grant all of the principal and income of the family trust, then in existence or later coming into the trust, to her four (4) natural children:

Pursuant to the provisions of this limited power of appointment, it is the intent of this writing to exercise said power, which is executed by me and I hereby direct pursuant to the limited power of appointment that all principal and income of said trust now in existence or becoming a part of such trust as the result of my death as a pour over from the Marital Trust C or the Marital Trust A be distributed, per stirpes, among the natural children and their lineal descendants, of Myrtle C. Timmons Ingrahm free from further trust and outright.

The effect of the exercise of this limited power of appointment shall be that the only beneficiaries of the Timmons Family Trust shall be my natural children and their lineal descendants. I understand that this exercise of limited power of appoint [sic] disinherits Frank G. Timmons, Jr., and his lineal descendants, and Jacquelyn Forman and their lineal descendants and that is my intent.

The co-trustees are then alleged to have commenced distributing certain trust assets to Myrtle's children and to have denied the Timmons access to trust records.

The Timmons brought an action against the co-trustees for breach of fiduciary duty and for an accounting. The Timmons asserted that Myrtle's attempt to...