Wood v. Ford

• Decision Date: 11 July 1941
• Citation: 148 Fla. 66,3 So.2d 490
• Parties: WOOD, Tax Collector, v. FORD.
• Court: Florida Supreme Court

3 So.2d 490

148 Fla. 66

WOOD, Tax Collector, v. FORD.

Florida Supreme Court

July 11, 1941

Rehearing Denied Aug. 1, 1941.

En Banc.

Appeal from Circuit Court, Dade County; Paul D. Barns Judge.

J. Tom Watson, Atty. Gen., Lawrence A. Truett, Asst. Atty. Gen., and Melbourne L. Martin, of Miami, for appellant.

Copeland &amp Therrel, of Miami Beach, for appellee.

The following are portions of the 'deed of trust' that are pertinent to the issues in this case:

On August 10, 1935 'Eleanor M. Ford, residing at Upper Nyak-on-Hudson Rockland County, * * * New York,' executed a deed of trust to her son, 'Charles Barron Manville, residing at the same place,' by which she did 'provide for the immediate present support and maintenance of her son, Richard Franklin Ford, as well as for his future support and maintenance, and * * * to assure to him the income of the securities and property hereinafter mentioned, by creating a trust thereof for his benefit * * * does grant, convey, assign, transfer and deliver unto said Trustee, his successors and assigns, bonds of the approximate present market value of $100,000.00 as follows:

10M Arkansas Power & Light Co. 1st and Ref. 5% 1956

10M Cleveland, Cincinnati, Chicago and St. Louis Railway Ref. and Imp. 'D' 5% 1963

11M Consolidated Gas Company of New York Debentures 5% 1957

10M Georgia Carolina Power Company 1st Mortgage 5% 1952

10M Georgia Power Company 1st and Ref. 5% 1967

19M Housatonic Railroad Company of Connecticut Consolidated Mortgage 5% 1937

10M Parr Shoals Power Company 1st mortgage S. F. 5% 1952

15M Pacific Gas and Electric Company General and Ref. Ser. A., 5% 1942

10M Mississippi Power & Light Company 1st Mortgage 5% 1957

together with all the estate and rights of the Grantor therein and thereto, * * *; 'To Have and To Hold all and singular the said securities and property, In Trust Nevertheless, for the uses and purposes and upon the terms and conditions hereinafter set forth, viz:

'First: For the sole benefit, support and maintenance of Richard Franklin Ford, son of the Grantor, during his lifetime, to hold, sell invest and reinvest said securities and property and the principal represented thereby and any increment of increase thereof and to collect and receive the rents, issues and profits arising therefrom, and after paying the expenses incurred in the administration of the trust, including the commissions of the Trustee, to pay the net income thereof to said Richard, quarterly or semi-annually as he may request for his sole benefit, support, and maintenance during his life, the increment or increase in value of said securities if any, to become part of the principal of said trust and not to be distributed as income; and upon the decease of said Richard, the principal of said trust together with any increase or increment thereof shall go to and vest in such person or persons as said Richard may by his last Will and Testament designate or appoint to take or receive the same, and in default of such testamentary disposition by said Richard, the same shall go to and vest in Charles Barron Manville, my son, or if said Charles shall pre-decease said Richard the same shall go to and vest in the lawful issue of said Charles surviving said Richard, or in default of such issue of said Charles the same shall vest in, go to, and be distributed to the next of kin of said Charles, as in intestacy, and the Trustee is hereby directed to distribute, transfer and deliver the principal of said trust, as the same may then be, to the person or persons entitled thereto as herein provided.

'Second: And if for any reason, or in any event, the income of said trust shall be or become insufficient or inadequate for the suitable support or maintenance of said Richard, the said Trustee is hereby authorized and empowered in his discretion to pay out and apply such part of the principal of said trust as may be necessary therefor.

'Third: The Trustee is hereby expressly authorized and empowered, though not required, to retain any and all securities and property hereby transferred to him or hereafter received by him from the Grantor pursuant to the provisions herein contained and shall have full power and authority at any time or times to sell, exchange and transfer said securities and property or any part thereof for such price or prices and on such terms of payment or security therefor as he may deem advisable and to change investments and to invest and reinvest the principal of the trust, or any part thereof, arising from the sale or exchange of such securities, or any part thereof, in such securities and properties as he, in his discretion, may deem advisable or suitable, and the Trustee is not restricted to the investment or reinvestment of trust funds in securities prescribed by law for the investment of trust funds.

'Fourth: The Trustee shall not be liable for any loss to the trust estate by reason of any investment made by him in good faith, or for any loss or decrease in value through retaining or exchanging any securities or property transferred to him hereunder or hereafter received or acquired by him pursuant to the provisions herein contained.

* * *

* * *

'Twelfth: This deed and the trust hereby created is not subject to alteration, amendment or revocation by the Grantor alone or in conjunction with any other person and this trust is not created by the Grantor in contemplation of her decease and is to take effect upon the execution and delivery of this instrument.

* * *

* * *

'Fifteenth: And if the Trustee hereinabove named shall not survive the said beneficiary, or shall resign or be or become unable by reason of disability or otherwise to continue to act as Trustee or to complete the execution of this trust, the securities and property then comprising the trust estate shall thereupon go to and vest in the Guaranty Trust Company of New York, a domestic corporation having its principal office at the City of New York, as successor trustee and the Grantor hereby designates and appoints said trust company as successor trustee to complete the execution of this trust in accordance with the provisions of this instrument. * * *'

The bill of complaint alleges:

'That the plaintiff (an adult) was a citizen and resident of Dade County, Florida, on January 1, 1939, and has been a citizen and resident of said County and State since said date; that the defendant is the Tax Collector of Dade County, Florida.

'That the Tax Assessor of Dade County, Florida, for the year 1939 did assess and value the intangible personal property of the plaintiff at Fifty-four Thousand Three Hundred Dollars ($54,300.00), and levied upon said assessed valuation and against the plaintiff, a tax of two (2) mills for the year 1939. * * *

'That the plaintiff filed in the office of the Tax Assessor of Dade County, Florida, for the taxable year 1939, his duly verified return of all intangible personal property belonging to the plaintiff; that the only intangible personal property listed in said return was a Seven Hundred Dollar ($700.00) deposit in a New York bank. Plaintiff says that he has not paid the intangible personal property tax on said deposit, but is ready, able and willing and offers to pay the same when directed by the Court.

'That the intangible personal property assessed for taxation for the year 1939 at the valuation of $54,300.00 against the plaintiff as the owner thereof, upon which the levy of two mills was imposed, referred to in Paragraph 3 hereof, was the entire corpus of a trust fund held by Charles Barron Manville under a certain trust deed dated August 10, 1935, * * *. Plaintiff says that the said Eleanor M. Ford and the said Charles Barron Manville are now and have been at all times since the execution of said instrument residents and citizens of the State of New York, and all of the property held in trust under said instrument has remained in the State of New York and no part of it is or ever has been in the State of Florida; that all of the securities comprising said fund since the creation thereof are bonds of corporations organized and existing under the laws of States other than the State of Florida. Plaintiff alleges that the aforesaid trust is irrevocable and the settlor thereof reserved no power or control over the administration of said trust fund and has no power to remove the trust fund; that the plaintiff has no power or control over said trust fund or right to remove the same, save and except the power to appoint by last will and testament, as aforesaid.

'That the assessment upon the trust res or corpus of the trust itself by the said Assessor and against the plaintiff, imposes upon the latter the burden of paying a tax upon an interest to which he is a stranger, and said assessment and levy thereon is illegal and void and should in equity and good conscience be so declared, and canceled and the collection or attempted collection thereof should be prohibited and enjoined.

'Wherefore, the premises considered, the plaintiff prays as follows: '1. That the Defendant be required to make answer to this Bill of Complaint, but not under oath, answer under oath being hereby expressly waived.

'2. That the Court do decree the assessment herein complained of to be unlawful and void or in the event the Court be of the opinion that portion only of such assessment is unlawful and void, that this Court do so decree and that in either event this Court do enjoin the Defendant, as Tax Collector of Dade County, Florida, and his successors in office, from enforcing or attempting to enforce the collection of taxes predicated upon such assessment or such portion thereof and this Court do grant such injunction pendente lite. * * *'

An answer containing a ...