Anders' Estate, In re, J--141

• Decision Date: 16 April 1968
• Docket Number: No. J--141,J--141
• Citation: 209 So.2d 269
• Parties: In re ESTATE of Ernest Elbert ANDERS, Deceased. Earl M. WHEBY, Jr., Appellant, v. FLORIDA NATIONAL BANK OF JACKSONVILLE, as Executor of the Estate of Ernest Elbert Anders et al., Appellees.
• Court: Florida District Court of Appeals

Page 269

209 So.2d 269

In re ESTATE of Ernest Elbert ANDERS, Deceased.

Earl M. WHEBY, Jr., Appellant, v. FLORIDA NATIONAL BANK OF JACKSONVILLE, as Executor of the Estate of Ernest Elbert Anders et al., Appellees.

No. J--141.

District Court of Appeal of Florida, First District.

April 16, 1968.

Earl M. Wheby, Jr., pro se, for appellant.

John A. Rush and Arthur T. Boone, Jacksonville, for appellees.

PER CURIAM.

A contingent beneficiary under a testamentary trust has appealed from an order entered by the County Judges' Court for Duval County denying his petition seeking the discharge of the counsel for the executor of the estate in question.

The basic question presented in this appeal is whether the appellant is a proper party in this proceeding; that is, whether the appellant, as such contingent beneficiary, has a sufficient judicial standing to file his said petition.

The testator, Ernest E. Anders, died in 1962, and the appellee bank was appointed as the executor of his estate. The decedent left surviving three heirs at law and beneficiaries under his will: his widow and two daughters, one of whom is the petitioner's mother.

The petitioner's rights as a contingent beneficiary under the terms of the trust created in Anders' will may or may not arise in the future, dependent upon whether the petitioner's mother should die during the existence of the trust, leaving the petitioner as her child. In the instant petition he designated himself as the 'ultimate beneficiary of a trust.'

In 1967 the petitioner filed his said petition in the said court seeking the discharge of the attorney for the appellee-executor, on grounds, among others, of conflicts of interest. The executor filed a motion to dismiss the petition on the ground that the petitioner was not a proper party. To the petition the mother of the petitioner filed an answer disassociating herself from the petition and moving to dismiss the petition. In the order appealed from the court denied the petition.

The precise question presented in this appeal evidently makes this a case of first impression in this state, if not in other jurisdictions, too, so we must resort to general principles and considerations in the determination of this question. The parties to this appeal have cited before us no case from Florida or elsewhere in which this question has been directly ruled upon, and our independent research has revealed none.

Among those general principles and considerations are the following:

The petitioner here does not now have, and may never have, a vested interest in the estate. He has only a contingent interest under the Anders will and can hold nothing more thereunder unless his mother should predecease him.

His mother, who holds the said vested interest, not only did not join in his said petition, but filed a motion to dismiss the petition, as did the executor.

Under the statutory and decisional law of this state, the county judge's court necessarily has a broad judicial discretion in the administration of decedents' estates. Both the county judge and the personal representative of an estate have the duty to protect the interests of all parties with either vested or contingent interests in an estate.

Pursuant to the provisions of Article V of the Florida Constitution, the Supreme Court of Florida has adopted rules setting up procedures for the disciplining of Florida attorneys who violate the canons of professional ethics, including the canon relating to conflicts of interest.

An appellate court should not ordinarily substitute its judgment for that of the county judge on factual questions in the area of the administration of decedents' estates.

No statute of Florida provides for the removal or discharge of an executor's attorney. Sec. 734.11, Florida Statutes, F.S.A., however, provides for the removal of a personal representative of an estate for any one of ten causes, including...