In re Estate of Senz
In re Estate of Senz
Opinion of the Court
This proceeding involves an effort by a widow and the beneficiaries of an estate and a testamentary trust to remove the named personal representatives and trustees.
Moe Senz died in October, 1977, leaving Bertha Senz, his widow, and two daughters, Joyce Winston and Carole Turk. In his last will and testament Moe created a marital trust
On appeal, the daughters make much of the trial judge’s comments at trial, which reprimanded the fiduciaries for the manner in which they administered the estate and trust. After the judge’s critical comments, the daughters were no doubt surprised when he ultimately denied their petition for removal. The tendency of counsel to rely upon a judge’s remarks made during court proceedings for some substantive weight bears out the biblical adage that an over-speaking judge is no well tuned cymbal. This leads us to observe that unnecessary critical or laudatory comments by judges should be avoided since they are often seized upon as having some judgmental impact. Generally speaking, such remarks do not constitute findings or holdings of the court and should not be considered as such. The court usually speaks through its written orders and judgments.
If the trial judge’s comments during trial were our only concern, we would necessarily affirm his denial of the petition for re
The final judgment acknowledged all the foregoing instances of mismanagement. In addition, while foreswearing any insinuation that the fiduciaries were guilty of dishonesty or self-dealing, the trial judge found that the nephew was “totally inept in handling of this estate,” that lines of communication between the parties had collapsed and that the beneficiaries had lost all confidence in the personal representatives. With reference to the mismanagement of the estate, the final judgment ordered the personal representatives to:
a) Transfer to the widow the partnership interest referred to above.
b) Deliver the bearer bonds taken from the safety deposit box to the widow.
c) “Make appropriate adjustments, as necessary, as a result of the transfer of the interest in [the partnership] and the bearer bonds to Bertha Senz,” the widow.
d) File an amended income tax return for 1977 to reflect the ommitted item of $10,000; any penalties, interest or costs to be borne by the personal representatives.
The trial court and the fiduciaries cite In re Estate of Murphy, 336 So.2d 697 (Fla. 4th DCA 1976), to support the court’s denial of the removal petition. However, a cursory reading reveals that the Murphy mismanagement was minimal compared to this case. Therefore, in Murphy the court was only required to accommodate a slight mismanagement of the estate in honoring the testator’s right to name the personal representative of his estate. In the present case the tension between the testator’s right to name his representatives and the court’s interest in assuring the proper administration of the estate and trust is much greater. Thus, when we consider this record in the light of the interests to be protected, the trial court’s refusal to remove the fiduciaries appears to be an abuse of discretion.
For the foregoing reasons, we reverse that aspect of the final judgment denying the petition for removal of the personal representatives and trustees and remand the cause with directions to grant the petition for removal.
REVERSED AND REMANDED, with directions.
. The marital trust was activated but later terminated because the widow elected to take dower. Thus only one trust is presently involved.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.