LOU BACON, AS PERSONAL REPRESENTATIVE OF THE ESTATE OF GERTRUDE BACON, DECEASED, APPELLANT,
v.
JON MARDEN AND JAY MARDEN, INDIVIDUALLY, AND AS TRUSTEES, AND BERTHA CLAIRE LEE, AS PURPORTED TRUSTEE, APPELLEES
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
Lou Bacon, as personal representative of Gertrude Bacon's estate, appealed the dismissal of her complaint against the trustees of a trust for breach of the duty to produce income. The court affirmed, holding that the settlor's clear intent as expressed in the trust document supersedes the statutory duty to produce income under section 738.12(1), Florida Statutes.
The court held that the settlor's contrary intent, as demonstrated by clear and unambiguous trust language, supersedes the statutory duty to produce income. The statute merely supplements trust terms and applies only where the settlor has not clearly indicated contrary intent. The explicit trust language relieving trustees of any obligation to produce income satisfied this requirement.
[1] A settlor's clear and unambiguous intent expressed in a trust document supersedes a trustee's statutory duty to produce income for an income beneficiary.
[2] Statutes that do not clearly indicate they apply to all trusts regardless of the settlor's intent do not supplant the common law rule that the settlor's intent governs tr…
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“the settlor's contrary intent, as demonstrated by the clear and unambiguous language of the trust, supersedes the trustees' duty to produce income for the income beneficiary pursuant to section 738.12(1), Florida Statutes (1985)”
Establishes the core holding that settlor intent controls over statutory duty to produce income
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceGertrude Bacon created a trust with Jon Marden, Jay Marden, and Bertha Claire Lee as trustees. The trust instrument explicitly stated that trustees ha…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Common Law Rule cases and more on FLexlaw
PER CURIAM.
We affirm the trial court’s order dismissing count one of Lou Bacon’s complaint and its order entering an involuntary dismissal of count two in favor of Jon Marden and Jay Marden, individually, and as trustees, and of Bertha Claire Lee, as trustee.
The trial court correctly determined that the settlor’s contrary intent, as demonstrated by the clear and unambiguous language of the trust, supersedes the trustees’ duty to produce income for the income beneficiary pursuant to section 738.12(1), Florida Statutes (1985). See Hoffman v.
First Virginia Bank, 220 Va. 834, 263 S.E. 2d 402 (1980); Gimbel v. Bernard F. & Alva B. Gimbel Foundation, Inc., 166 Conn. 21, 347 A. 2d 81 (1974).
The fact that the legislature did not clearly make section 738.12(1) applicable to all trusts regardless of the settlor’s intent, compels the conclusion that the section does not supplant the well-established common law rule that the settlor’s intent governs the construction of a trust, see Bacardi v. White, 463 So. 2d 218, 221 (Fla.1985); Knauer v. Barnett, 360 So. 2d 399, 405 (Fla.1978); West Coast Hosp. Assoc. v. Florida Nat’l Bank, 100 So. 2d 807, 810 (Fla.1958).
Cf. Carlile v. Game & Fresh Water Fish Comm’n, 354 So. 2d 362 (Fla.1977) (statute in derogation of common law doctrine affording state sovereign immunity, must be strictly construed); Rudolph v. Unger, 417 So. 2d 1095 (Fla. 3d DCA 1982) (statute, permitting prevailing party to recover attorney’s fees, in derogation of the common law, must be strictly construed).
See generally 3 A. Scott, Trusts § 240.1 (3d ed. 1967).
The history of section 738.12(1) supports the conclusion that section 738.12(1) merely supplements the terms of a trust document and applies only where the settlor has not clearly indicated a contrary intent.
Section 690.12, Florida Statutes (1973), the forerunner to section 738.12(1), was similar to section 738.12(1), Florida Statutes (1985), in that it did not specifically supersede the common law rule. In 1975, however, the legislature enacted section 738.12, which required the trustee to pay income to the income beneficiary regardless of whether the trust property was “held for appreciation either by the direction of the settlor or in the discretion of the trustee.” Ch. 75-221, § 16, Laws of Fla. In 1977, however, the legislature removed the language which preempted the settlor’s intent. Ch. 77-254, § 6, Laws of Fla. In its present form, section 738.12(1) is essentially identical to the 1977 amendment. Where the legislature amends a statute and in so doing omits a portion of it, common sense dictates that the legislature intended to remove that portion of the statute from the law. See Carlile, 354 So. 2d at 364-65; Gunite Works, Inc. v. Lovett, 392 So. 2d 910 (Fla. 1st DCA 1980); Link-Simon, Inc. v. Muehlebach Hotel, Inc., 374 F.Supp. 789 (W.D.Mo.1974).
When the legislature removed the language from the statute it reinstated the common law rule that the settlor’s intent governs the interpretation of a trust.
The trust instrument in the case sub judiee stated: “[T]he trustees shall have no obligation to produce income ... and no person shall have any right to compel the trustees to seek any income ... or to compel them to dispose of [the trust] stock because it may not pay dividends.” Since this language clearly authorizes the trustees to retain unproductive assets, Bacon’s allegation, grounded upon section 738.12(1), Florida Statutes (1985), failed to state a cause of action and was properly dismissed. Furthermore, since Bacon’s second count was essentially grounded upon the same duty alleged in count one of the complaint, it was also properly dismissed. Accordingly, we affirm the trial court’s orders dismissing both counts of Bacon’s complaint.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Life Care Ctrs. OF Am., Inc. v. Sawgrass Care Ctr., Inc., 683 So. 2d 609 (Fla. 1st DCA 1996)…995) — mandating rulings on each proposed finding of fact — was ex- [*613] eised by the repeal of section 120.59. Ch. 96-159, § 24, at 48, Laws of Fla. See Carlile v. Game and Fresh Water Fish Comm’n, 354 So. 2d 362, 364 (Fla.1977); Bacon v. Marden, 518 So. 2d 925, 926 (Fla. 3d DCA 1987) (“Where the legislature amends a statute and in so doing omits a portion of it, common sense dictates that the legislature intended to remove that portion of the statute from the law.”). In contrast, the first sentence of for…
-
Ring Power Corp. & United Self Insured Servs. v. Campbell, 697 So. 2d 203 (Fla. 1st DCA 1997)…mpensation claims had played in determining entitlement to training and education. See Carlile v. Game and Fresh Water Fish Comm’n, 354 So. 2d 362, 364 (Fla. 1977); Town of Lake Park v. Karl, 642 So. 2d 823, 825 (Fla. 1st DCA 1994); Bacon v. Marden, 518 So. 2d 925, 926 (Fla. 3d DCA 1987)(“Where the legislature amends a statute and in so doing omits a portion of it, common sense dictates that the legislature intended to remove that portion of the statute from the law.”). Statutory language governing the penal…
-
Matilda Sauter v. Bravo, 771 So. 2d 1213 (Fla. 4th DCA 2000)…ver three percent of the value of the probate and trust assets pursuant to section 738.12(l)(a). We reject Sauter’s argument that the language of the trust obviated application of section 738.12. A similar argument was addressed in Bacon v. Marden, 518 So. 2d 925, 926 (Fla. 3d DCA 1987), where the Third District recognized that “section 738.12(1) merely supplements the terms of a trust document and applies only where the settlor has not clearly indicated a contrary intent.” The trust instrument in Bacon, unl…
Authorities Cited
- Carlile v. Game & Fresh Water Fish Comm'n of the State of Fla., 354 So. 2d 362 (Fla. 1977)
- Knauer v. Barnett, 360 So. 2d 399 (Fla. 1978)
- Bacardi v. White, 463 So. 2d 218 (Fla. 1985)
- W. Coast Hosp. Ass'n v. The Fla. Nat'l Bank OF Jacksonville, 100 So. 2d 807 (Fla. 1958)
- Gunite Works, Inc. v. Lovett, 392 So. 2d 910 (Fla. 1st DCA 1980)
- Rudolph v. Unger, 417 So. 2d 1095 (Fla. 3d DCA 1982)