Wallace v. Julier

• Decision Date: 10 June 1941
• Citation: 147 Fla. 420,3 So.2d 711
• Parties: WALLACE et al. v. JULIER et al.
• Court: Florida Supreme Court

3 So.2d 711

147 Fla. 420

WALLACE et al. v. JULIER et al.

Florida Supreme Court

June 10, 1941

Rehearing Denied Sept. 12, 1941.

En Banc.

Appeal from Circuit Court, Taylor County; R. H. Rowe Judge.

Charles Cook Howell and Charles Cook Howell, Jr., for John M. Wallace and others.

L'Engle Shands, McCarthy & Lane, E. J. L'Engle, J. W. Shands, and E. W. Lane, Jr., all of Jacksonville, and McLanahan, Merritt Ingraham & Christy, of New York City, for Joseph Julier and Atlantic Nat. Bank of Jacksonville, as executors and trustees.

Milam, McIlvaine & Milam and Robert R. Milam, all of Jacksonville, for William L. Burton, II, and Mabel Burton Iles and B. M. Iles, her husband.

BUFORD Justice.

Mrs. Katharine Ella Burton, the widow of Captain William L. Burton, died in 1928. At the time of her death she was possessed of a large estate, the most of which was inherited from her husband who had predeceased her by about one year. She devised all her property by will. That part of the will with which we are concerned here is contained in Item 10, which reads as follows:

'Tenth: All the rest, residue and remainder of my property and estate of every kind or nature and wheresoever situated, I give, devise, and bequeath as follows:

'1. Forty (40%) per cent of my said residuary estate I give, devise and bequeath to my Trustees hereinafter named, in trust nevertheless, to invest and to keep the same invested and to pay such portion of the net income therefrom as they may in their discretion deem necessary or proper,--but not less than twenty thousand ($20,000) Dollars a year or more than thirty thousand ($30,000) Dollars a year,--to my granddaughter, Mabel Burton Wallace, until she shall reach the age of thirty years, the same to be so paid by my said trustees in monthly or quarter-yearly installments as nearly equal as may be practicable and convenient; and when my said granddaughter shall have reached such age of thirty years, to pay, transfer and set over to her any balance of income which may have accrued from said fund over and above the amount so paid by my said Trustees as aforesaid to my granddaughter prior to her reaching such age. Thereafter, that is, after my said granddaughter shall have reached the age of thirty years, I direct my said Trustees to pay the entire net income from said fund to my said granddaughter for and during the remainder of her life in such monthly or quarter-yearly installments as aforesaid and after her decease to continue to hold said fund until her son (my great-grandson) John Wallace, shall reach the age of forty years, or until his death if he shall die prior to that time, for the uses and purposes following, viz.: to distribute the income therefrom in such monthly or quarter-yearly installments as aforesaid among the issue or lineal descendants of my said granddaughter living at the date of each distribution, in equal shares per stirpes and not per capita. When my said greatgrandson shall reach the age of forty years or upon his death if he shall die before reaching such age, I direct my Trustees to distribute the principal of the fund (and any accumulations of income then remaining undistributed) among the issue or lineal descendents of my said granddaughter Mabel Burton Wallace, then living, in equal shares per stirpes and not per capita.

'In case my said granddaughter shall leave no issue or lineal descendants her surviving, but my grandson William L. Burton 2d shall be then living, I direct my Trustees to continue to hold said fund, to invest and to keep the same invested and to collect and receive the income therefrom and to accumulate the net income from the fund until my said grandson shall reach the age of thirty years and thereupon to pay, transfer and set over such accumulated income to my said grandson as his own property absolutely; and thereafter, that is, after my said grandson shall have reached the age of thirty years to pay the entire net income from such fund to my said grandson for and during the remainder of his life in monthly or quarter-yearly installments as nearly equal as may be practicable and convenient.

'Upon the death of my said grandson,--or upon the death of my said granddaughter, if she shall die without leaving any issue or lineal descendants her surviving and my said grandson shall fail to survive her,--I direct that the principal of the fund be distributed among the issue or lineal descendants of my said grandson then surviving, in equal shares per stirpes and not per capita, or if there shall be no such issue or lineal descendants of my said grandson living at that time, to distribute the same among my next of kin entitled by the laws of Florida then in force to inherit and receive my property in case of intestacy, the same to be distributed to the same persons and in the same manner and proportions as if I had died intestate at that time owning such property.

'II. Sixty (60%) per cent of my said residuary estate I give, devise and bequeath to my Trustees hereinafter named in trust nevertheless, to invest and to keep the same invested and to pay or apply so much of the net income therefrom as they may in their discretion deem necessary or proper for the education, maintenance and support of my grandson William L. Burton, 2D, during his minority,--the amount so expended, however, not to be less than Six Thousand ($6,000) Dollars or more than Ten Thousand ($10,000.) Dollars in any year during such period and my Trustees to have full power and authority either to pay such allowance wholly or in part to any general Guardian duly qualified and appointed and under sufficient bonds approved by a Court of competent jurisdiction (for expenditure by such general guardian on behalf of said minor) or in their absolute discretion personally to apply and expend said allowance or so much thereof as they may see fit to so expend and apply, for the purpose hereinabove mentioned, to-wit, for the education, maintenance and support of said minor, without the intervention of any such guardian of said minor.

'I further direct my said Trustees to pay to my said grandson, after he shall have reached his majority, and until he shall have reached the age of thirty years, such portion of the net income from said fund as they may in their discretion deem necessary or proper,--but not less than Ten Thousand ($10,000) Dollars a year or more than $20,000 a year during the period between the date when he shall reach the age of twenty-one and the date when he shall reach the age of twenty-five years, and not less than Fifteen Thousand ($15,000) Dollars a year or more than Thirty thousand ($30,000) Dollars a year between the date when he shall reach the age of twenty-five years and the date when he shall reach the age of thirty years. Such income shall be so paid in monthly or quarter-yearly installments as nearly equal as may be practicable and convenient.

'When my said grandson shall reach the age of thirty years, I further direct my said Trustees to pay, transfer and set over to my said grandson any balance of income which may have accrued from said fund prior to his reaching said age, over and above the amount so paid to him or to his general guardian or expended on his behalf as hereinbefore provided. Thereafter, that is to say, after my said grandson shall have reached the age of thirty years, I direct my said Trustees to pay the entire net income from said fund to my said grandson for and during the remainder of his life, in such monthly or quarter-yearly installments as aforesaid. It is my will, however, and I hereby direct that my Trustees shall have full power and authority to pay, transfer and set over to my said grandson at any time, or from time to time, after he shall have reached the age of twenty-five years, such portion or portions of the principal of the above-described fund held by them for his benefit as they may in their absolute discretion deem it proper of for the best interests of my said grandson so to advance to him.

'Upon the death of my said grandson, I direct my said Trustees to pay, transfer, set over and distribute the principal of said fund or so much thereof as shall not have been advanced to him as above provided, and any accumulated income not previously paid over to my said grandson pursuant to the terms hereof, to and among the issue or lineal descendants of my said grandson then living, in equal shares, per stirpes and not per capita.

'In case my said grandson shall die leaving no issue or lineal descendants him surviving, but my granddaughter shall be then living, I direct my Trustees to continue to hold said fund, to invest and to keep the same invested and to collect and receive the income therefrom and to accumulate the net income from the fund until my said granddaughter shall reach the age of thirty years and thereupon to pay, transfer and set over such accumulated income to my said granddaughter as her own property absolutely; and thereafter, that is to say, after my said granddaughter shall have reached the age of thirty years, to pay the entire net income from said fund to my said granddaughter for and during the remainder of her life in monthly or quarteryearly installments as nearly equal as may be practicable and convenient.

'Upon the death of my said granddaughter,--or upon the death of my said grandson if he shall die without leaving any issue or lineal descendants him surviving, and my granddaughter shall fail to survive him,--I direct that the principal of the fund be distributed among the issue or lineal descendants of my said granddaughter then surviving in equal shares per stirpes and not per capita, or if there shall be no such issue or lineal descendants of my said granddaughter living at that time, I direct that...