Mester v. Berger

696 So. 2d 412, 1997 Fla. App. LEXIS 7219, 1997 WL 345713
CourtDistrict Court of Appeal of Florida
DecidedJune 25, 1997
DocketNo. 96-2753
StatusPublished

This text of 696 So. 2d 412 (Mester v. Berger) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Mester v. Berger, 696 So. 2d 412, 1997 Fla. App. LEXIS 7219, 1997 WL 345713 (Fla. Ct. App. 1997).

Opinion

GLICKSTEIN, Judge.

This is an appeal from an order on an interim accounting, the practical effect of which was to conclude a widower was entitled to all of the undistributed interest on the deceased wife’s unmatured E Bonds which had not been distributed to her prior to her death. We reverse with direction to enter an order consistent herewith.

Mildred Firman Berger acquired Series E Bonds issued from 1967 through 1972 which had a 30 year maturity. In January, 1994, then married to Herman Berger, she established a revocable trust which provided:

ARTICLE II — ADMINISTRATION DURING THE LIFETIME OF SET-TLOR
A. During the lifetime of the Settlor, the Trustee shall pay all of the net income, if any, to the Settlor, in convenient installments at least as often as monthly. In addition, the Trustee shall pay to the Set-tlor, from the principal of the Trust, so much as the Trustee deems necessary for the welfare, support and comfort of the Settlor in her accustomed manner of living.
B. During any period of Settlor’s lifetime in which, in the sole judgment of any successor Trustee hereunder, it is for any reason inconvenient, inadvisable, or impossible for Settlor to act in her own behalf with respect to this trust, the distribution required in paragraph A, above, shall terminate and such Trustee shall distribute from time to time: (I) for the support, health, and maintenance in the previously accustomed manner of living of Settlor and her husband, (ii) for the discharge of any obligation which, in such Trustee’s opinion, is legally enforceable against Settlor, and (in) for any other purpose or purposes which such Trustee believes to be directly beneficial to Settlor, so much of the assets then contained in this trust, even to the exhaustion thereof, as such Trustee, in such Trustee’s sole and absolute discretion, deems necessary or advisable.
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[413]*413ARTICLE V — DISTRIBUTION OF TRUST UPON DEATH OF SETTLOR
Upon the death of the Settlor, the Successor Trustee shall distribute the trust as follows:
A. The Settlor’s husband, HERMAN BERGER, if living, shall receive a life estate in the settlor’s home and all furniture and furnishings therein located at 9520 S. Hollybrook Lake Dr., Pembroke Pines, FL 33025. Upon the death of the Settlor’s husband, the property shall be distributed pursuant to Paragraph B.2 below. This bequest shall pass free of estate taxes.
B. The rest, residue and remainder of the trust shall be distributed as follows:
1. One-third (1/3) to be continued in trust for the benefit of the Settlor’s husband, HERMAN BERGER, if living. The Successor Trustee shall pay to or for the benefit of the Settlor’s husband the net income from the trust during his lifetime on a monthly basis. The Successor Trustee or Personal Representative may elect to have a specific portion or all of the Marital Deduction Trust treated as qualified terminable interest property for Federal estate tax purposes. Upon the death of the Settlor’s husband, the balance shall be distributed pursuant to Paragraph 2 below.
2. Two-thirds (2/3) to the Settlor’s brother, DONALD MESTER, and nephews, BRADLEY P. MESTER, DR. STEPHEN W. MESTER and BARRY GEN-DLER, in equal shares, per stirpes.

On the same day, she executed her will, leaving tangible items to her brother and nephews, with the residue to be added to the principal of her trust. She died six months later; and the interim accounting was for the next twelve months. In the accounting, the personal representatives listed the E Bonds as follows:

U.S. Savings Bonds Series “E” Bonds (Schedule Attached Items 1-86)
Face Value 79,875.00
Interest accrued to date of death 343,563.60

They then added both figures and included the total in the other assets as “Total Principal Received.” The 706 was prepared in August, 1995, and showed under Schedule “G” — Transfers During Decedent’s Life. U.S. Savings Bonds Held by the Mildred Firman Berger T/U/A Dtd. 9/27/94:

Face Value of “E” Bonds 79,875.00
Interest Earned 343,563.60
Total 423,438.60

Appellee’s objection was the inclusion of interest accrued to date of death as principal in violation of section 738.04(3), Florida Statutes. Appellants’ response was that accrued interest on the date of death was not to be paid to Herman Berger, with which the trial court disagreed, saying:

As to objection 3, the Court finds that under Article 11(A) of The Mildred Firman Berger Revocable Trust Agreement, the net income of the Trust was distributable to the Settlor, Mildred Firman Berger. Therefore, pursuant to Florida Statute 738.04(4)(c), upon the death of Mildred Fir-man Berger, her estate was entitled to the periodic interest payments accrued to the date of her death. [1] That portion of the total $351,731.00 of accrued interest that is attributable to periodic payments is governed by F.S. 738.04(2)(b), and as such, the periodic payments accrued as of the date of death are principal and were properly allocated as such. [2] However, with respect to the $343,563.00 of accrued interest attributable to Series E bonds, neither F.S. 738.04(4) nor F.S. 738.04(2) applies, since the interest accrued on said Trust assets was not “undistributed”, “due”, or “periodic”. Therefore, the Series E bond interest accrued as of the date of death of Mildred Firman Berger is governed by F.S. 738.04(3) which provides that
“In all other cases, any receipt from an income-producing asset is income even though the receipt was earned or accrued in whole or in part before the date when the asset became subject to the trust.”
Furthermore, pursuant to F.S. 738.03, income includes money received as “(e) Accrued increment on bonds or other obligations issued at discount as provided in s. 738.07(2).” However, distribution of the Series E bond interest allocable to the trust for the benefit of Herman Berger [414]*414(consisting of one-third of the remaining assets of the Mildred Firman Berger Trust), is subject to F.S. 738.07(2), discussed below in connection with objection^”.
As to objection “4”, F.S. 738.07(2) provides that the increment in value of a bond bearing no stated interest but payable in the future is distributable as income. The Court concludes that this provision applies both to the portion of the Series E bond interest accrued on trust assets before death and also to the increments in value accrued after death and that these amounts are income. The question thus presented is what is the obligation of the Trustees to distribute accrued, but unrealized, trust income through principal distributions or through disposition of the bonds. Based on the record before this Court, the Court will not at this time compel the Trustees to distribute the Series E bond income to Herman Berger.

(Footnotes omitted).

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Bluebook (online)
696 So. 2d 412, 1997 Fla. App. LEXIS 7219, 1997 WL 345713, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mester-v-berger-fladistctapp-1997.