Lewis v. Gaillard - Case Law - VLEX 885829192 - vLex

Headnotes Filed Oct. 13, 1911.

In Banc. Appeal from Circuit Court, Leon County; J. W. Malone Judge.

Bill by R. C. M. Gaillard and others against George Lewis, executor and others. From an order overruling a demurrer to the bill defendants appeal. Reversed.

This appeal is from an order overruling a demurrer to a bill of complaint. The bill as amended, is as follows:

'Rachel C. M. Gaillard and Henry Gaillard, her husband, of the county of Duval, state of Florida, for themselves and for and on behalf of all the heirs and distributees of James D. Westcott, late of Leon county, Fla., deceased, and of his estate, bring this their bill of complaint against George Lewis, of Leon county, Fla., as executor of the last will and testament of said James D. Westcott, deceased, and as trustee thereunder and individually, and Nathaniel P. Bryan, of Duval, county, A. L. Brown, of Lake county, J. C. Baisden, of Suwannee county, P. K. Yonge, of Escambia county, and T. B. King, of De Soto county, all of the state of Florida, as members of the board of control, or the state board of control, corporation under the laws of the state of Florida, and the board of control, or state board of control, a corporation under the laws of Florida, and Napoleon B. Broward, Governor of the state of Florida, H. C. Crawford, Secretary of State of the state of Florida, William H. Ellis, Attorney General of the state of Florida, W. V. Knott, Treasurer of the state of Florida, and W. M. Holloway, superintendent of public instruction of the state of Florida, as members of the state board of education of Florida, a corporation under the laws of Florida, and the state board of education of Florida, a corporation under the laws of Florida; and thereupon your orators complain and say:

'That heretofore, to wit, on the 29th day of April, 1887, James D. Westcott died in said county of Leon, state of Florida, leaving a last will and testament, a copy of which is hereto attached marked 'Exhibit A,' which it is prayed may be taken and referred to as a part of this bill.

'That by the provisions of said will said testator directed the payment of certain specific legacies therein mentioned to persons therein named, and also expressed his wish that $8,000 should be expended in the construction of a monument over the graves of his father, mother, and himself, and directed that $2,000 of funds be held in trust to pay from the interest thereon the amounts necessary to keep the lot and monument in order, and that the rest of the estate of said testator be held in trust for the benefit of the West Florida Seminary, the institution located at Tallahassee. That only the interest upon the principal should be used yearly. That his executor have authority to change the investments of the funds in his discretion. If, however, he should not qualify, then the investments might be changed by the officers controlling the institution. That at least one-half of this interest should be expended for the benefit of students of Leon county under the direction of the managing officers of the institution. That none of said trust property or moneys of said estate of said testator should be used for building or improvement of grounds.

'By said last will and testament said testator appointed said defendant George Lewis as executor of his said will.

'That shortly after the death of said James D. Westcott said will was proven and admitted to probate in court of the county judge of Leon county, Fla., and said defendant George Lewis did duly qualify as the executor of said will, and did thereby become trustee of all the property of said estate left in trust for the benefit of the West Florida Seminary according to the provisions of said will.

'That said James D. Westcott at the time of his death left a large amount of personal property and moneys of great value, and also left a large amount of real estate which belonged to him at the time of his death, to wit, situated in Leon county, Fla., and elsewhere in said state, and said defendant George Lewis did thereupon take possession of all said property, real and personal, and has ever since collected and received the rents, income, issues, interest, and profits thereof, and, as your orators are informed and believe and so allege, has made changes of investments of property of the said estate, and sold property thereof, and invested the proceeds thereof in other property, and have exchanged the property thereof and has bought property with moneys and assets of the said estate.

'That said defendant Lewis did also proceed to act as trustee of the property of said estate left in trust by said will for the benefit of said West Florida Seminary.

'Your orators are informed and believe, and so allege, that said defendant Lewis has not as such executor and as trustee as aforesaid, or otherwise, fully and sufficiently accounted for said trust property and the management thereof, and disposition thereof, by him.

'That afterwards, to wit, by statute of the state of Florida, to wit, chapter 5384 of the statutes of the said state approved June 5, 1905, and which took effect immediately upon its approval, according to the terms thereof the West Florida Seminary mentioned in said will, and for the benefit of which said trust property was by said will directed to be held in trust as therein set forth, was abolished, and each and every of the charters, franchises, powers, rights, and privileges granted to or possessed by it were thereby revoked, vacated, and abolished.

'That thereupon, as your orators are informed, advised, and so allege, said trust created by said will of said James D. Westcott for the benefit of the West Florida Seminary ceased and determined, and the property held by said defendant Lewis as executor or trustee under said will or which was the property of said estate or which had accrued to said estate or to said trust fund or the proceeds thereof, or property acquired therefrom or thereby, or by investments or use of property of said estate or said fund, passed to the heirs or distributees of said James D. Westcott or his estate, or they became entitled thereto, and said trustee became trustee for them in the premises, and to hold and apply such property, real, personal, and mixed, for their use and benefit.

'Your orators are informed and believe, and so allege, that said defendant Lewis has expended a large amount of the principal of said property in or upon a building or buildings and improvement of the grounds at or about the property and site formerly of the West Florida Seminary, contrary to the directions of said will, and that he should account to these complainants and the other heirs and distributees of the said James D. Westcott and his estate therefor and pay and compensate them for the same.

'Your orators are informed and believe and so allege that said executor has paid and discharged the specific legacies of the said will.

'Your orators are also informed and believe, and so allege, that said defendant Lewis has made provision for a monument in accordance with the terms of said will as hereinbefore mentioned and as appears therein.

'Your orators further show and allege: That since the passage of said statute said institution, the West Florida Seminary, for the benefit of which said property was left in trust as aforesaid by said will, has not only been abolished by law but in fact, and has ceased to operate, and has been wholly discontinued and so remains.

'That since the passage of said statute and the abolition of said the West Florida Seminary your orators have for and on behalf of your oratrix, Rachel C. M. Gaillard, and the other heirs and distributees of said James D. Westcott and his estate notified said defendant George Lewis as executor and trustee as aforesaid not to pay, transfer, convey or deliver any of said trust property or property of the estate of James D. Westcott, deceased, to said board of control, or to the said state board of control, or to said state board of education of Florida, or to any board, corporation, or person other than said heirs and distributees, and have demanded, and do demand, that he account to said heirs and distributees for said property and all property of the estate of said James D. Westcott, deceased, which he has received or disposed of, and that he hold all property of the said estate or which was heretofore of said trust for said heirs and distributees until same can be properly distributed and conveyed to them or divided among them--that is to say, all such property remaining on hand not properly expended or disposed of according to the terms of said will, including all the principal and corpus of said trust property--but said defendant Lewis has declined to admit or recognize the rights of said oratrix and the other said heirs and distributees in the premises or to make any distribution or conveyance of any of said property to them or to any of them without the decision and decree of a court of competent jurisdiction in the premises, establishing and decreeing the rights and title of said heirs and distributees in the premises, and the duties and the obligations of said executor and trustee in the premises. Your orators further show that as they are informed and believe, and so allege, said board of control or state board of control and said state board of education of Florida claim some right, title, or interest in or to said property or the interest or income thereof or both by virtue of said will and said statute, or to be the beneficiaries of said trust. But your orators are advised and believe, and so allege: That said boards have not and neither of them have any right,...