Waterbury v. Munn

• Decision Date: 25 November 1947
• Citation: Waterbury v. Munn, 159 Fla. 754, 32 So.2d 603 (Fla. 1947)
• Parties: WATERBURY v. MUNN et al.
• Court: Florida Supreme Court

32 So.2d 603

159 Fla. 754

WATERBURY v. MUNN et al.

Florida Supreme Court

November 25, 1947

Appeal from Circuit Court, Palm Beach County; Jos. S White, judge.

Walter E Travers and William J. Lake, both of West Palm Beach, for appellant.

Bert Winters and Alley, Drew, Burns & Middleton, all of West Palm Beach, for appellees.

SEBRING, Justice.

Carrie L. Munn died testate in November, 1922. She left a will dated May 16 1913, and a codicil thereto dated January 29, 1914. At the time of her death she had five children, namely, Charles Munn, Gurnee Munn, Ector Orr Munn, Carrie L. Munn Boardman (now Carrie L. Waterbury, the appellant) and Gladys M. Munn (now deceased). The will named Charles Munn and Gurnee Munn two of the children, executors and trustees, and contained a provision that Ector Orr Munn should become a trustee when he reached the age of twenty-five years.

By Paragraph Seventh of the original will the testatrix devised certain real property in Chicago, Illinois, known as the Wellington Hotel Property, to her trustees, in trust, with directions that the net income, rents and profits therefrom should be paid to the five children for life, or to the surviving children of such children should either of them die prior to the termination of the trust; and that upon the death of the last surviving child of the testatrix, the trustees should divide the property into shares equal in number to the number of children of the testatrix who had died leaving descendants living at the death of the last surviving child, and pay the proceeds of said shares over to such descendants.

Paragraph Seventh also provided: 'I further direct that inasmuch as the trusts * * * are created by me for the express purpose of protecting my children and descendants from want and inconvenience, by reason of the vicissitudes of life, so far as reasonable foresight can prevent, is is my will that the portion of the net income, rents and profits of the trust property to be paid to any of my children or descendants * * * shall be so payable * * * only upon his or her personal receipt, and that none of them respectively shall have any power to anticipate, or, in any manner encumber the same or any part thereof. It is also my will that the income receivable by each of my children and descendants * * * shall not be subject to any legal process for the payment of his or her debts.'

The pertinent provisions of the codicil in controversy are worded as follows:

'Whereas I have, in Paragraph Seventh of my said will, directed that * * * the 'Wellington Hotel Property' shall be held in trust and not divided until the death of the last surviving of my children, Charles A. Munn, Gurnee Munn, Carrie L. Boardman, Gladys M. Amery and Ector Orr Munn;

'Now I do hereby revoke said restriction and limitation and empower the trustees * * * at any time in their discretion, to sell the said Wellington Hotel Property * * * on such terms, agreements and conditions as they may think best * * * and make distribution of the proceeds * * * as provided and directed in Paragraph Ninth of my said will in respect of my residuary estate; Provided, Nevertheless, that until the said Wellington Hotel Property be sold, as in this codicil provided, the trutees * * * shall have and enjoy the same rights, privileges and powers in respect of said property as are given them in Paragraph Seventh * * * of my said will, and make distribution of the net income derived from said property as in said paragraphs directed. * * *' In December of 1939 Charles A. Munn and Gurnee Munn assigned their life income from the trust to their sister, Carrie L. Waterbury, the appellant. In 1945 a dispute arose between the parties as to whether the assignments were valid, because of certain spendthrift provisions in the will and codicil.

To settle the controversy, Carrie L. Waterbury instituted suit in the Circuit Court of Palm Beach County making all persons interested in the will and codicil parties defendant. At final hearing on bill, answers and evidence taken before a special examiner, the chancellor dismissed the bill; holding that Paragraph Seventh of the original will created a spendthrift trust which was not revoked or destroyed by the subsequent codicil, and that consequently the assignments from Charles A. Munn and Gurnee Munn were unenforceable.

Carrie L. Waterbury has taken an appeal from that decree.

A spendthrift trust is one that is created with the view of providing a fund for the maintenance of another, and at the same time securing it against his own improvidence or incapacity for self protection. Croom v. Ocala Plumbing & Electric Co., 62 Fla. 460, 57 So. 243. The typical spendthrift...