Herskowitz v. Smith (In re Estate of Herskowitz)

338 So. 2d 210 (1976)

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Herskowitz v. Smith (In re Estate of Herskowitz)

Florida District Court of Appeal
338 So. 2d 210 (1976)

  • Written by Liz Nakamura, JD

Facts

Bernard Herskowitz, decedent, executed a will leaving over $500,000 to a testamentary trust for the benefit of his minor children, Robert and Mark. Bernard named his brother, Marvin Herskowitz (plaintiff), as the trustee and executor of the estate. Following Bernard’s death, Sam Smith (defendant) was appointed Robert and Mark’s guardian ad litem. After the family allowance was expended, Smith petitioned the probate court to require Marvin, in his capacity as executor, to fund the testamentary trust, arguing that it constituted a support trust and Marvin should therefore be required to make regular support payments for the benefit of Robert and Mark. Marvin objected, arguing that he had sole discretion as the trustee to determine the payment of trust funds. The probate court held for Smith, ruling that (1) Bernard’s will demonstrated an intent to create a support trust for Robert and Mark, (2) the estate was liquid and had sufficient funds to pay all creditors and administration costs, and (3) Marvin’s refusal to fund the trust was arbitrary and capricious. The probate court ordered Marvin, as executor and trustee, to make a sufficient monetary distribution to himself as trustee of the trust and then to start making monthly support payments for Robert and Mark. Marvin appealed.

Rule of Law

Issue

Holding and Reasoning (Per curiam)

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