Furlong v. Leybourne, 61-173
Citation | 138 So.2d 352 |
Decision Date | 01 March 1962 |
Docket Number | No. 61-173,61-173 |
Parties | Martha Joe FURLONG, Sylvia Carnes and Sally Leybourne, Appellants, v. Charlotte LEYBOURNE, individually and as Executrix of the Estate of James G. Leybourne, Deceased, Appellee. |
Court | Court of Appeal of Florida (US) |
Robert M. Brake, Coral Gables, for appellants.
Redfearn, Ferrell & Simon, Miami, for appellee.
Before HORTON, BARKDULL and HENDRY, JJ.
This is an appeal to review an order of the lower court entered in a suit for a declaratory decree. Appellants, plaintiffs below, are the children of James G. Leybourne, deceased. Appellee is a widow of the deceased and the stepmother of the appellants. James G. Leybourne died October 1, 1958. His will provided that his entire estate be distributed to the appellee who was also named executrix. About one year prior to his death the deceased and the appellee, as husband and wife, joined in making a negotiable note to the Coral Gables Federal Savings & Loan Associaton, hereinafter referred to as Federal, in the amount of $27,500, and in executing a mortgage to the Federal to secure the same, encumbering the homestead property which was owned by the deceased. 1 The proceeds of the aforesaid loan were used to pay back income taxes of the deceased which accrued prior to his marriage to the appellee.
Appellants previously brought an action for a declaratory decree seeking to determine whether it was the obligation of their father's estate or the appellee, as the case may be, to pay the principal due under the nonpurchase money mortgage. The complaint therein was filed against the appellee individually and as executrix of the estate of the deceased and against the Federal as creditor-mortgagee of the homestead property. That complaint alleged that the unpaid portion of the note secured by the mortgage was in excess of $26,000; that the Federal failed to file a claim against the estate within the prescribed time; that appellants had timely filed a claim in their own behalf; that the appellee was demanding that the appellants pay the principal owing on the note for which the mortgage was security; and that as a result of the above, the appellants were entitled to have the rights of the parties determined relative to the obligations concerning the homestead property.
The orders in that declaratory action were adverse to the children and they appealed. This court in affirming 2 the lower court's orders stated:
* * *'
'It is clear that such doctrine could have no application in this case, because of the failure of the mortgagee to file a claim in the estate. * * *'
Appellants filed a petition for rehearing and alleged that the court completely overlooked their request to determine the liability of the appellee in her individual capacity as co-maker of the note and that they were entitled to have this request adjudicated, separate and apart from any liability of the appellee as executrix of the estate.
This court after consideration of the petition stated at page 802:
'The questions as to the effect of the widow's personal liability on the mortgage as a co-maker of the mortgage note, as they bear on the rights, remedies and defenses of the parties, were not determined in the decree, but were within the pleadings and before the court, and we are of the opinion that for substantial justice to be done between the parties such questions also should be determined.'
'Therefore, this cause is hereby remanded with directions to the chancellor to declare the rights and liabilities of the parties in the respects hereinabove referred to, upon consideration of the pleadings and evidence and with the aid of such further proceedings and evidence as may come before the chancellor in his discretion. * * *'
Upon remand of the cause the lower court, after further proceedings were had, entered the supplemental final order from which appellants take the present appeal. The order reads in part as follows:
'IT IS ORDERED ADJUDGED AND DECREED that:
'1. The said Charlotte C. Leybourne, as the co-maker of the said mortgage and note, is entitled to the protection of having the mortgaged property, in the event of default, first applied to the payment of said mortgage indebtedness, and then, if the mortgaged property is insufficient to pay the mortgage indebtedness in full, she would be obligated to pay the deficiency. As between the widow and the remaindermen, the widow has no obligation to pay any part of said note except the interest. It is the obligation of the plaintiffs as remaindermen to pay the principal of said mortgage indebtedness as the same accrues if they desire to retain their interest in said real estate.
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