Headnotes FiledOct. 13, 1911.

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

Bill byR. C. M. Gaillard and others againstGeorge Lewis,executor and others.From an order overruling ademurrer tothe billdefendants appeal.Reversed.

This appeal is from an order overruling ademurrer toa bill of complaint.The bill as amended, is as follows:

'Rachel C. M. Gaillard andHenry Gaillard, her husband, of thecounty of Duval,state of Florida, for themselves and for and on behalf of all the heirs and distributees ofJames D. Westcott, late ofLeon county, Fla., deceased, and of his estate, bring this theirbill of complaint againstGeorge Lewis, ofLeon county, Fla., asexecutor of the last will and testament of saidJames D. Westcott, deceased, and astrustee thereunder and individually, andNathaniel P. Bryan, of Duval, county,A. L. Brown, ofLake county,J. C. Baisden, ofSuwannee county,P. K. Yonge, ofEscambia county, andT. B. King, ofDe Soto county, all of thestate of Florida, as members of the board of control, orthe state board of control, corporation under the laws of thestate of Florida, and the board of control, or state board of control, a corporation under the laws of Florida, andNapoleon B. Broward, Governor of thestate of Florida,H. C. Crawford, Secretary of State of thestate of Florida,William H. Ellis,Attorney General of thestate of Florida,W. V. Knott, Treasurer of thestate of Florida, andW. M. Holloway, superintendent of public instruction of thestate of Florida, as members ofthe state board of education of Florida, a corporation under the laws of Florida, andthe 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 ofApril, 1887,James D. Westcott died in saidcounty 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 ofthis 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 hisfather,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 hisexecutor 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 ofLeon 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 saiddefendantGeorge Lewis asexecutor of his said will.

'That shortly after the death of saidJames D. Westcott said will was proven and admitted to probate incourt of the county judge ofLeon county, Fla., and saiddefendantGeorge Lewis did duly qualify asthe executor of said will, and did thereby becometrustee 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 saidJames 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 inLeon county, Fla., and elsewhere in said state, and saiddefendantGeorge 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 saiddefendant Lewis did also proceed to act astrustee 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 saiddefendant Lewis has not as suchexecutor and astrustee 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, bystatute of thestate of Florida, to wit,chapter 5384 ofthe statutes of the said state approvedJune 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 saidJames D. Westcott for the benefit of the West Florida Seminary ceased and determined, and the property held by saiddefendant Lewis asexecutor ortrustee 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 saidJames D. Westcott or his estate, orthey became entitled thereto, and saidtrustee becametrustee 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 saiddefendant 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 thathe should account tothese complainants and the other heirs and distributees of the saidJames D. Westcott and his estate therefor and pay and compensate them for the same.

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

'Your orators are also informed and believe, and so allege, that saiddefendant 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 saidstatute 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 saidstatute 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 saidJames D. Westcott and his estate notified saiddefendantGeorge Lewis asexecutor andtrustee as aforesaid not to pay, transfer, convey or deliver any of said trust property or property of the estate ofJames 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, thathe account to said heirs and distributees for said property and all property of the estate of saidJames D. Westcott, deceased, whichhe has received or disposed of, and thathe 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 saiddefendant 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 ofa 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 saidexecutor andtrustee in the premises.Your orators further show that asthey 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 saidstatute, 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,...