## Facts

- John Cobden’s will created a testamentary trust.
- In a codicil, John appointed his wife, Elizabeth Cobden, and his brother, Edward Cobden, as co-executors and cotrustees.
- The codicil further provided that if “either of said Executors or Trustees” predeceased John, failed to serve as trustee, or “having served” then died, John appointed Barnett First National Bank of Jacksonville, Florida (the Bank) as successor trustee.
- John died in 1979, and Elizabeth and Edward began serving as cotrustees.
- In 1980, Elizabeth was adjudicated incompetent.
- After Elizabeth’s adjudication, Edward petitioned the probate court to appoint John Turney as cotrustee in Elizabeth’s place.
- The record contained no evidence of any relationship between John Cobden and Turney.
- Edward argued that the codicil did not call for the Bank because Elizabeth had served and had not died, so the successor-trustee conditions had not occurred.
- The Bank argued the codicil showed John’s intent that the Bank take over if either individual cotrustee could not serve or continue to serve.
- The trial court appointed Turney as cotrustee, and the Bank appealed.

## Issues

1. Whether a cotrustee’s adjudicated incompetency constitutes a “fail[ure] to serve” (or otherwise triggers the codicil’s succession clause) requiring appointment of the Bank as the named successor trustee.
2. Whether the probate court may appoint a different individual cotrustee, notwithstanding an express successor-trustee designation in the codicil.

## Decision

- The appellate court reversed the order appointing John Turney as cotrustee.
- The court concluded that, read as a whole, the codicil reflected John Cobden’s intent that the Bank succeed to the trusteeship when a named cotrustee could not serve or could not continue serving.
- The court remanded for proceedings consistent with enforcing the codicil’s successor-trustee designation in favor of the Bank.

## Legal Principles

- A testator’s intent, as expressed in the will and codicil, governs construction of testamentary documents.
- Testamentary provisions are construed from the instrument as a whole, giving effect to language selecting fiduciaries where reasonably possible.
- A court’s authority to fill a vacancy in a trusteeship is subordinate to an express succession plan stated in the testamentary instrument, absent a legal bar to the named successor’s service.
- Terms such as “fail to serve” are not read so narrowly that they defeat an evident plan for continuity of administration; a trustee’s legal inability to act (such as adjudicated incompetency) may be treated as triggering the successor clause.

## Conclusion

The court held that John Cobden’s codicil should be construed to carry out his expressed plan for trustee succession: when Elizabeth, a named cotrustee, was adjudicated incompetent and could no longer function as trustee, the vacancy was to be filled by the Bank identified in the codicil, not by a court-selected individual with no shown connection to the testator.


Barnett First National Bank of Jacksonville v. Cobden, 393 So. 2d 78 (1981)