Opinion
December 12, 1950.
Appeal from the Circuit Court for Orange County, Frank A. Smith, J.
H.M. Voorhis of Maguire, and Voorhis Wells, Orlando, for appellants.
LeRoy B. Giles and Edward K. Goethe, Orlando, for Florence D. Reynolds, and Cushman S. Radebaugh, Orlando, for The First National Bank of Orlando, appellee.
Charles Lyman Smith died testate in 1914. There survived him his daughter, Florence Denslow Reynolds, his granddaughter, Florence V. Reynolds, and his widow, Evaline Lamson Smith, the stepmother of Florence Denslow Reynolds. In his last will and testament the decedent named William R. O'Neal as executor and trustee, created a trust in certain securities and other property of the aggregate value of $30,000, and provided with respect to the property that it should "be held by said Trustee, and by him invested, and reinvested, as necessity may require, the annual income thereof to be paid to my daughter, Florence Denslow Reynolds, annually for and during her natural life. At her death said Trustee shall convey the property mentioned in this item to my grand-daughter, Florence V. Reynolds."
The granddaughter died on April 23, 1925, leaving a last will and testament by which she devised and bequeathed all her property and estate to her husband, Benjamin T. Stephenson.
On December 30, 1925 Evaline Lamson Smith, the widow of Charles Lyman Smith, also died. By a last will and testament, which had been executed by her 54 days after the death of the granddaughter, she devised and bequeathed one-third of her residuary estate "to William R. O'Neal, but in trust, nevertheless, for Florence Reynolds daughter of my late husband, Charles L. Smith, to be paid by said Trustee, added to the fund left in trust by my husband, the said Charles L. Smith."
William R. O'Neal, the trustee under the wills of Charles Lyman Smith, and Evaline Lamson Smith, respectively, died on March 15, 1948. Thereafter the First National Bank of Orlando, which had been appointed successor trustee under both wills, brought suit for a construction of the will of Charles Lyman Smith and of paragraph 15 of the will of Evaline Lamson Smith under which the testatrix had created the trust as to her residuary estate. Upon the issues made by the pleadings the trial court rendered its decree holding that the will of Charles Lyman Smith created a life estate in the income of the $30,000 trust in favor of the daughter, Florence Denslow Reynolds, with a vested remainder in Florence V. Reynolds Stephenson, as to the corpus of the trust, the enjoyment of the corpus being postponed until the death of the life beneficiary, Florence Denslow Reynolds; and holding, further, that upon the death of the granddaughter the vested remainder in the corpus passed to and became vested in her husband, Benjamin T. Stephenson, by virtue of the will executed by her divising and bequeathing all her property and estate to her husband.
As to paragraph 15 of the Evaline Lamson Smith will, the holding of the court was that the trust created thereby was a passive trust inasmuch as it clothed the trustee with no duties to perform, and that at all times subsequent to the death of the testatrix, the beneficiary Florence Denslow Reynolds, had the right to have surrendered to her the property composing the corpus of such trust; that with respect to the words used in the will "to be paid by said Trustee, added to the fund left in trust by my husband, the said Charles L. Smith" the same should be construed as though they read "to be paid to Florence Denslow Reynolds by said trustee, the amount so paid to be added to the fund payable to her by virtue of the trust created by Charles L. Smith, deceased;" that the will disclosed no intention on the part of the testatrix to devise or bequeath one-third of a residuary estate to any trust other than the trust created for the benefit of Florence Denslow Reynolds, and especially it disclosed no intention to make a devise or bequest to the trust created by Charles L. Smith, for the devise was not to William R. O'Neal as trustee under the will of Charles L. Smith but a devise to William R. O'Neal in trust for Florence Reynolds; that whatever William R. O'Neal received from the estate of Evaline Lamson Smith under paragraph 15 of the will, he received as trustee under the will and not as trustee of any trust created by Charles L. Smith; that it did not appear from the will that the testatrix intended to incorporate therein by reference the will of her late husband, Charles L. Smith.
In the appeal from this decree it is contended by the appellant that the trial court misconstrued the intent of paragraph 15 of the will of Evaline Lamson Smith. According to the contention, the real purpose and intent of paragraph 15 was to add property of the testatrix to the trust fund theretofore established by the will of Charles Lyman Smith, the late husband of the testatrix, under which a life estate in the $30,000 trust was created in favor of Florence Denslow Reynolds, the daughter of Charles Lyman Smith, with remainder over to the granddaughter, Florence V. Reynolds Stephenson, so that the property added by Evaline Lamson Smith to the said trust would follow the terms of the trust; that is to say, would be payable, as to the income therefrom, to Florence Denslow Reynolds for the life with remainder over to Florence V. Reynolds Stephenson.
We are unable to find any valid basis for the construction sought to be placed on the will by the appellant. The language of paragraph 15 of the will of Evaline Lamson Smith is clear that the devise made by the testatrix was not a devise to William R. O'Neal as trustee under the will of Charles Lyman Smith which created a life estate in Florence Denslow Reynolds, the daughter, with, remainder over to Florence V. Reynolds Stephenson, the granddaughter, but was a devise to William R. O'Neal in trust solely for the daughter Florence Denslow Reynolds; the name of the granddaughter not being mentioned. Therefore, according to the express language of the will, whatever William R. O'Neal was to receive from the estate of the testatrix was to be received by him as trustee under her will and not as trustee of the trust theretofore created by Charles Lyman Smith in his last will and testament.
Furthermore, the facts show that the granddaughter of Charles Lyman Smith, who was the remainderman under the trust created by his will, was dead at the time the trust created by the will of Evaline Lamson Smith came into existence. When the testatrix executed her will she knew of the death of the remainderman, or, if she did not have such information, she was charged with knowledge that as a matter of law the death of a remainderman under a testamentary trust will cause the gift to fail as to such remainderman and the property to become intestate property, where the death occurs prior to the death of the trustor. See Scott on Trusts, Vol. 3, pp. 2177-2178, section 411.2; Summit Trust Co. v. McAuley Water Street Mission, 125 N.J. Eq. 505, 6 A.2d 406; French v. Heywood, 214 Mass. 582, 102 N.E. 271. Under such circumstances, to ascribe to the testatrix an intention that her property be added to the trust property dealt with in the will of Charles Lyman Smith and that such property be disposed of in accordance with the terms of the Charles Lyman Smith will, would be to ascribe to her an intention to die intestate as to such property. Such a construction will not be given where a will is susceptible of two constructions, by one of which the testator may be held to have disposed of the whole of his estate and by the other of which he will be held to have disposed of only a part and to have died intestate as to the remainder. As stated in Page on Wills (Lifetime Edition) Vol. 2, page 945 in respect to the matter, "A construction which results in partial intestacy will not be used unless such intention appears clearly. It is said that the courts will prefer any reasonable construction, or any construction which does not do violence to the testator's language, to a construction which results in partial intestacy." See Thompson on Wills, 3d Ed., section 221, p. 342; Schouler on Wills, Executors and Administrators, 5th Ed. Vol. 1, section 490, pp. 615, 616; 57 Am.Jur., Wills section 1158, p. 754.
The appellant has failed to make reversible error appear and hence the decree appealed from should be affirmed.
It is so ordered.
ADAMS, C.J., and CHAPMAN and HOBSON, JJ., concur.