Williams v. Collier , 120 Fla. 248 ( 1935 )

"1. * * * The right of the wife to dower is not derived through the husband, but by provision of law. It is an interest which the law casts upon the wife.

"2. Our statute having extended to personal estate, the wife has the same inchoate title in personal property that she has in real; excepting in personal estate it is not provided she shall have it in that which the husband 'had before conveyed,' as in lands.

"3. The husband cannot, by last will and testament, so bequeath his personal property as to deprive his widow of her right of dower therein; yet he may sell or give his personal property away, even though it is with the avowed purpose of keeping his wife from getting her dower; but such sale or gift must be a bona fide one and be perfected.

"4. If the conveyance or transfer by the husband be a mere device or contrivance by which the husband, not parting withthe absolute dominion over the property during his life, seeks at his death to deny his widow her dower in his personal estate which the law would assign to her, then it is void and ineffectual against her." Smith v. Hines, 10 Fla. 258.

To be subject to the widow's dower, the bonds in this case being personal property, must have been "owned by her husband at the time of his death, within the meaning of the statute relating to dower. Sec. 35, Chap. 16103, Acts of 1933, Sec. 5507 (1) Cum. Supp. 1934, C. G. L.

If the trust deed is a bona fide and perfected disposition of the beneficial interest of the husband in the bonds or in a severable portion thereof, to that extent the bonds were not "owned by her husband at the time of his death," and the widow's claim to dower rights therein are to that extent in law excluded by the operation of the trust deed and by the delivery of the bonds to the trustee under the trust deed. The trust deed by its terms perfected the gift upon delivery of the bonds by the husband before his death to the trustee named, to be used for the sole benefit of the trustor's designated grandchildren. The creation of the trust for the benefit of his grandchildren is shown to be a perfected gift by the trustor to his grandchildren, not a device to illegally deprive the wife of dower as in Smith v. Hines, 10 Fla. 258.

It seems clear from the entire trust instrument that the main purpose and intent of the trustor in executing the trust deed under which the bonds were delivered to the trustee, were to appoint a trustee "for the purposes of the trust herein and hereby created" and to create a perfected trust in $50,000.00 of government bonds and to deliver the bonds to a named trustee for the benefit, not of the trustor, but of his named grandchildren, reserving for the trustor's benefit only a severable part of the bonds, viz: the interest to accrue on the bonds prior to his death; and, as an incidentto the administration of the trust, to reserve a power in the trustor to have the bonds returned to him should the named trustee die before the execution of the trust, or at the option of the trustor, such custody by the trustor being not for the benefit of the trustor, but for the evident purpose of designating another administering agency or trustee to whom he could deliver the bonds, which under the trust instrument were "subject only to the consummation of the trust herein created."

This is shown by the provision that the bonds delivered to the trustee shall remain the property of the trustor "subject only to the consummation of the trust herein created," and by the later provision that "In the event of the death of the trustee before the execution of this trust, or prior thereto at the pleasure or option of the trustor, this instrument shall become inoperative, and concurrent therewith the bonds shall be forthwith returned to the trustor."

The reserved power to require a redelivery of the bonds to the trustor in either of the events stated, has reference to the administration of the trust, and not to a revocation of the trust, the bonds being subject to "the consummation of the trust herein created" by which trust and delivery of the bonds thereunder, the beneficial interest in the principal of the bonds passed to the designated beneficiaries. This interpretation accords with the intent of the trustor as shown by a consideration of all the provisions of the trust deed.

The words, "this instrument shall become inoperative" upon the happening of either of several subsequent conditions, considered with other provisions, have reference to a contingent termination of the administration of the trust bythe named trustee, and not to a discontinuance of the trust, for that had been completely created and the bonds to be delivered were expressly made "subject only to the consummation of the trust herein created." The provision for the return of the bonds upon stated events was obviously for the purpose of conserving the bonds which were subject to the consummation of the trust under the provision that "it being expressly understood that the said bonds shall remain the property of the said John Collier in accordance with the terms of this instrument and subject only to the CONSUMMATION of the trust herein created."

Except as to the reservation of interest accruing on the bonds prior to the death of the trustor, the only reservations to the trustor relate to powers affecting the administration of the trust fund. The bonds, whether held by a trustee or by the trustor, were expressly made subject to the consummation of the trust as created for the benefit of the trustor's grandchildren, the sole beneficiaries of the principal of the bonds. The perfected gift and transfer of the bonds in trust for the beneficiaries named in the trust deed make them not subject to dower rights.

The provisions in the trust instrument as to the time for, and who should make, a sale of the bonds and the stated distribution of the proceeds to the beneficiaries, are administrative and do not affect the absolute rights of the beneficiaries to the trust estate as provided in the trust instrument, the death of the trustor being merely the event fixing the time when the distribution of the property should be made to the beneficiaries of the trust property under the trust deed.

Whether the trust deed be regarded as creating or as declaring a trust, the dominant intent of the trustor, as shown by the entire instrument was to make a completed gift of the principal of the bonds to his designated grandchildren. The reservation of the interest to accrue from the bonds prior to the trustor's death, did not affect the perfected gift of the principal. 65 C. J. 274. The other reservations were in effect a power relating to the custody and administration of the perfected trust fund. As the reserved power was not exercised, the trust perfected by the trust deed and the delivery of the bonds to the trustee remains as created or declared; and it is not necessary to consider the effect of an exercise of the reserved power, because it relates to the custody of the bonds and the administration of the trust fund, not to the continued existence to the trust as created.

Rehearing denied.

WHITFIELD, C. J., and BROWN and DAVIS, J. J., concur.

ELLIS, P. J., and TERRELL and BUFORD, J. J., concur in the opinion and judgment.

ON FURTHER ARGUMENT.