Allen v. Allen
| Decision Date | 09 August 1933 |
| Citation | 111 Fla. 733,150 So. 237 |
| Parties | ALLEN v. ALLEN. |
| Court | Florida Supreme Court |
Rehearing Denied Oct, 3, 1933.
Suit by Annie H. Allen, a divorced woman, against Marie L. Allen, a widow, as administratrix of the estate of Ben Hill Allen deceased, and as the sole heir at law of Ben Hill Allen deceased. From a decree for plaintiff, defendant appeals.
Affirmed. Appeal from Circuit Court, Hillsborough County L. L. Parks, judge.
A. C Brooks and S. S. Sandford, both of Tampa, for appellant.
Chancey & Thomas and Thomas Quinby, all of Tampa, for appellee.
In September, 1929, Annie H. Allen was divorced from Ben Hill Allen. The decree for divorce carried alimony in the sum of $100 per month. About the time the decree of divorce was granted, Ben Hill Allen executed his note and agreement to Annie H. Allen, agreeing to pay her alimony in the sum of $100 per month during her natural life or so long as she remained unmarried. The note and agreement also provided that, in the event of the death of Ben Hill Allen before the death of Annie H. Allen, his heirs, executors, and administrators should pay said alimony.
In March, 1931, Ben Hill Allen died, but prior to his death he had married Marie L. Allen, the appellant herein. He paid all claims for alimony due Annie H. Allen as per terms of his agreement up to his death, but no part of said alimony has been paid by his administratrix, Marie L. Allen. In April 1931, Annie H. Allen filed her claim in the probate court of Hillsborough county for alimony, and later she filed another claim in the same court for $35,000, money alleged to have been advanced to Ben Hill Allen during their coverture.
In May, 1932, Annie H. Allen filed her bill of complaint against Marie L. Allen, alleging, among others, the foregoing facts, the appointment of Marie L. Allen as administratrix of the estate of Ben Hill Allen, her mismanagement and dissipation of said estate, and prayer for her removal and the appointment of a receiver to take charge of and manage said estate pending the disposition of said cause. The prayer for a receiver was granted, and this appeal is from that order. In December, 1932, this court entered its order under section 5 of article 5 of the Constitution of Florida restraining the plaintiff and the receiver from taking any steps or exercising any authority whatever, pursuant to the order of the court below, with respect to the property involved, until further ordered by this court.
The sole assignment of error is that the court below erred in appointing a receiver. The receiver was appointed on the showing that the estate was being maladministrated and converted wrongfully to the use of the administratrix.
The pith of appellant's predicate for error is that the administratrix was the sole heir of Ben Hill Allen; that the claim of appellee for $35,000, money advanced to Ben Hill Allen, was barred by estoppel; and that appellee's claim for alimony is void because the contract therefor was made in aid of divorce.
It is competent to appoint a receiver for the estate of a decedent when the administrator is guilty of waste, misuse of assets, or misconduct in its management. 53 C.J. § 27, page 43, note 37, and cases there cited. It is also settled law that, in cases involving the administration of estates, courts of equity have concurrent jurisdiction with courts of law. Ritch v. Bellamy, 14 Fla. 537; Sanderson's Adm'rs v. Sanderson, 17 Fla. 820; Deans v. Wilcoxon, 25 Fla. 980, 7 So. 163; Benedict v. Wilmarth, 46 Fla. 535, 35 So. 84, 4 Ann. Cas. 1033; Opitz v. Morgan, 68 Fla. 469, 67 So. 67; First Trust & Savings Bank v. Henderson, 101 Fla. 1437, 136 So. 370; Cole v. Cole (Fla.) 143 So. 235. We are not unmindful of the holding in some jurisdictions to the effect that estates should not be administered through a receiver, but such holdings are controlled by statute and do not influence the case at bar. Huston v. King, 119 Miss. 347, 80 So. 779.
It is the law that agreements to facilitate or promote divorce are illegal as contrary to public policy. Gallemore v. Gallemore, 94 Fla. 516, 114 So. 371. Agreements to facilitate or promote divorce have reference to such agreements as those withdrawing opposition to the divorce or not to contest it or to conceal the true cause thereof by alleging another. They have no reference to bona fide agreements relating to alimony or the adjustment of property rights between husband and wife, though in contemplation of divorce, if they are not directly conducive to the procurement of it.
For all the record shows, the agreement brought in question was of the latter class, and, if so, it may be enforced. As a general rule the obligation to pay alimony dies...
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...have not occurred. 'This was in effect a part of our holding in Underwood v. Underwood, Fla.1953, 64 So.2d 281; and Allen v. Allen, 111 Fla. 733, 150 So. 237, 238. In the case last cited, we held: '* * * As a general rule the obligation to pay alimony dies with the person, but agreements of......
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