39, Marshall Lodge No. 39, A. F. & A. M., v. Woodson

• Decision Date: 28 July 1939
• Citation: 139 Fla. 579,190 So. 749
• Parties: MARSHALL LODGE NO. 39, A. F. & A. M. v. WOODSON et al.
• Court: Florida Supreme Court

190 So. 749

139 Fla. 579

MARSHALL LODGE NO. 39, A. F. & A. M. v. WOODSON et al.

Florida Supreme Court

July 28, 1939

En Banc.

Error to Circuit Court, Pinellas County; to avoid effect of statute of non-claim.

Action by Marshall Lodge No. 39, A. F. & A. M., a Virginia corporation, against Gladys P. Woodson and another, as executors of the estate of Henry P. Woodson, deceased, on a promissory note. Judgment for defendants, and plaintiff brings error.

Reversed and cause remanded.

WHITFIELD and BUFORD, JJ., dissenting.

COUNSEL McMullen, McMullen & Pogue and Ralph Richards all of Clearwater, for plaintiff in error.

M. H Jones, of Clearwater, for defendants in error.

OPINION

BROWN Justice.

The first question involved, as stated by plaintiff in error, is as follows:

'Under the law as it existed before the enactment of the 1933 probate act [Acts 1933, c. 16103], could an executor, by paying interest on a debt within the time allowed for filing claim, and by otherwise recognizing the debt as a valid claim against the estate, waive the filing of the debt as a claim against the estate?'

This writ of error is addressed to a final judgment on demurrer in favor of the executors of the estate of Henry P. Woodson deceased, who were defendants in the court below. The court sustained a demurrer to the plaintiff's amended declaration, and the plaintiff declining to amend further, entered judgment for the defendants.

The amended declaration filed by the plaintiff in the court below, Marshall Lodge No. 39 A. F. & A. M., a Virginia corporation, alleged that T. G. Woodson and Henry P. Woodson, the latter being the deceased person whose estate is involved, executed and delivered to the plaintiff, on Joun 10, 1932, a certain promissory note in the sum of $6,955.25, payable to the plaintiff at the office of its Secretary in Lynchburg, Virginia, said note being made payable in annual installments, with interest at 6 per cent and providing that in case of default in the payment of any of said installments the entire unpaid balance should become due and payable; that at the time suit was filed, the entire amount of the principal and interest, less $834.60, which had been paid on interest, was due and unpaid. That Henry P. Woodson died on August 17, 1933, in Pinellas County, Florida, and that the defendants were appointed executors on August 28, 1933, and were duly qualified as such. That notice to creditors was published once a week for eight consecutive weeks, commencing August 28, 1933, as required by the statute. That shortly thereafter A. S. Nowlin, one of the executors, had a conference in Lynchburg, Virginia with a committee of the plaintiff Lodge, which committee was handling the matter of collecting said promissory note; that during said conference said executor, in discussing the promissory note, stated to one of the members of the committee that everything would be all right and that the note held by the Lodge would be paid, and shortly thereafter made a similar statement to the Secretary of said Lodge. That at that time plaintiff was not advised of the laws of Florida with reference to the filing of claims against a decedent estate; that said executor had been known to the members of the Lodge for a long time as trustworthy and honorable, and that said Lodge, relying upon the assurance given to them by said executor Nowlin, took no steps to file its claim as required by the statutes of Florida then in effect. That shortly thereafter on December 9, 1933, one of the executors, in pursuance of such agreement, executed and delivered a check in the sum of $208.65 in payment of the interest on said promissory note, which check was drawn on the funds of the estate in a Clearwater bank and was signed by Mrs. Gladys Woodson as Executriz. That on June 6, 1934, a similar check was delivered and paid to the plaintiff in the same amount, representing the interest on said note, said interest being paid in accordance with the understanding had between said co-executor and the plaintiff. That Nowlin, one of the executors, on May 31, 1934, acknowledged in writing to the plaintiff that said promissory note was a legal obligation of the estate and that payments on the principal thereof would be made as funds were received by the executors, and requested a discount of the principal and interest on the note for a full cash settlement. That the will of Henry P. Woodson, deceased, in its first paragraph, provided that:

'I will and direct that as soon as possible after my death my executrix and executor, herein after named, shall pay all my just debts and funeral expenses.'

It is further alleged that the annual reports filed by the executors with the County Judge showed disbursements up to June 6, 1934, $18,632.08, and on June 1, 1935, disbursements in the sum of $16,033.87, and on June 1, 1936, disbursements in the sum of $15,296.98; that included in the disbursements above set forth are debts owed by the deceased during his life time, but in spite of the large amount of such disbursements, no creditor had filed with the County Judge, as required by law, any claim against the above mentioned estate, within the time allowed by law for filing such claim; that therefore the said executors were acting under the provisions contained in the will in paying claims against the estate. That on July 5, 1934, executor Nowlin advised the County Judge that the estate was indebted in the sum of $11,000, and plaintiff avers that the above mentioned promissory note was included in the $11,000 indebtedness which the said Nowlin admitted by his written statement to the County Judge; that before his death said Henry P. Woodson had acknowledged the justness of the debt represented by the promissory note, and plaintiff avers that by the quoted provision in his will the said Henry P. Woodson intended and commanded that his said executors pay the promissory note above described.

The declaration further alleges that although plaintiff did not file its claim as required by law with the County Judge of Pinellas County, Florida, the defendants, by their course of conduct above set forth, had admitted the debt and are estopped to set forth as a defence to this action the statute of non claim, and that they are also estopped from doing so by the quoted provision of the will of Henry P. Woodson, deceased. That said executors had failed and neglected to pay their promissory note or any part thereof, except interest payments above referred to, and that it had become necessary for the plaintiff to bring suit on said note. A copy of the note was attached to the declaration.

The defendants filed a demurrer, one of the grounds of which was that the declaration affirmatively shows that the claim sued upon is not a valid and binding claim against the estate of Henry P. Woodson, deceased, and another ground is that the declaration shows on its face that the claim sued upon has been barred by the statute of non-claim. Also that the declaration fails to allege facts sufficient to avoid the effect of the statute of non-claim, and that in attempting to set forth a valid claim against these defendants, notwithstanding its failure to file its claim as required by law, the allegations of the declaration consist of conclusions of the pleader and fail to allege issuable facts capable of trial by jury. Also upon the ground that the amended declaration fails to allege any attempt on the part of the plaintiff at any time to file its claim as required by law.

We do not think that the provision of the will directing the executors to pay all of the just debts of the testator had any effect upon the operation of the statute of non-claim. But disregarding this allegation of the declaration, as well as any allegations of mere conclusions of the pleader, the declaration in our opinion sufficiently alleges that one of the executors had made two interest payments on the note in question within the time allowed by law for filing proof of claim in the County Judge's office, and also that the other executor had during the time recognized said promissory note as constituting a valid debt against the estate.

The question is, do these facts give validity to the claim of the plaintiff in the court below, evidenced by the promissory note, as a claim against the estate, in view of the provisions of the statute which was then in full force and effect?

The statute referred to, as set out in Compiled Gen.Laws of 1927, reads as follows:

'5599, 5600. Claims against estate to be sworn to; limitations.--No claims or demands shall be valid or binding upon an estate, or the executor or administrator thereof, unless the same shall be duly sworn to and presented to the county judge of the county granting letters testamentary or of administration on an estate, at his office in the court house of said county; and any claims or demands not so presented within twelve months from the time of the first publication of the notice provided for in section 5597, shall be barred by limitation: Provided, however, that the lien of a duly recorded mortgage of real property and the right to foreclose same shall not be impaired or affected by failure to present same as hereinabove provided but that the limitation imposed by this law shall merely bar the right of enforcement of personal liability against the estate of the decedent. (Ch. 10119, Acts 1925, § 2; Ch. 11994, Acts 1927, § 2.)'

The plaintiff in error in oral argument and brief has cited a number of cases but relies mainly upon the case of Ramseyer v. Datson, 120 Fla. 414, 162 So. 904, and the cases therein cited; also upon Jefferson Standard Life Ins. Co. v. Lovera's Estate, 125 Fla. 682, 171 So. 512, and Clark v. Fullerton, 130 Fla. 150, 177 So. 851....