Armistead's Estate, In re
| Decision Date | 10 November 1970 |
| Docket Number | No. L--478,L--478 |
| Citation | 240 So.2d 830 |
| Parties | In re ESTATE of Francis R. ARMISTEAD, Deceased. |
| Court | Florida District Court of Appeals |
Raymond, Wilson, Karl, Conway & Barr, Daytona Beach, for appellant.
John E. Chisholm, New Smyrna Beach, for appellee.
By this appeal from an order construing her late husband's will, Appellant Elinor Armistead contends there is no authority for granting a rehearing of a final order entered by a probate court.
Appellee-Executor filed a petition in the probate court for construction of decedent's will. Issue was joined by the widow and upon final hearing the probate court entered its order dated June 13, 1968, construing the term 'gross estate' as used in the will to be not inclusive of homestead property and certain personal property held by the husband and wife in an estate by the entireties. The Executor filed a motion for rehearing on June 24, 1968; rehearing was granted by an order dated July 11, 1968; and ultimately on March 5, 1969, the probate judge entered an order rescinding the initial construction and including the homestead property in the computation of decedent's gross estate as defined in the will.
There is no contention by appellee that the initial order entered on June 13, 1968, was not a final order. We observe that it was of 'appealable finality.' In the absence of a rule promulgated by competent authority authorizing a petition for rehearing or motion for new trial subsequent to the entrance of a final order, a probate court loses jurisdiction as to that order save for those matters involving the inherent power and jurisdiction of the probate court as discussed in State ex rel. Booth v. Byington, 168 So.2d 164 (Fla.App.1st 1964). Also see The Florida Bar Practice Manual No. 8, Florida Probate Practice § 18.9, p. 777. As noted in the Byington opinion, we were not there reviewing final action upon the mentioned orders.
We cannot find any authority permitting a rehearing or new trial by a probate judge subsequent to the entrance of a final order. Appellee argues strenuously that the procedure of entertaining petitions for rehearing is common among probate courts. We observe that neither the probate courts nor this court has the power or authority to promulgate rules of procedure. Such power is the exclusive prerogative of the Supreme Court of this State conferred upon it by the provisions of Article V, Florida Constitution, 1968,...
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Beeman's Estate, In re, 78-834
...to alter, modify or amend it. Though the time sequence is different, the court reached the same conclusion in In re Estate of Armistead, 240 So.2d 830, 831 (Fla. 1st DCA 1970), and In the absence of a rule promulgated by competent authority authorizing a petition for rehearing or motion for......
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Crissey's Estate, In re, 72--748
...a party should abandon the petition, file a notice of appeal and pursue the appeal. . . .' (Emphasis added.) See also In re Estate of Armistead, Fla.App.1970, 240 So.2d 830. Inasmuch as the petition for rehearing did not have the effect of tolling the time for the taking of the instant appe......
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Blye v. University of Florida, S--454
...for respondents. ON MOTION TO DISMISS PER CURIAM. Motion to dismiss the appeal herein is granted on authority of In Re Estate of Armistead, 240 So.2d 830 (Fla.App.1970). SPECTOR, C.J., and RAWLS and JOHNSON, JJ., ...
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Armistead v. Armistead's Estate, Y-65
...denied appellant's motion for allowance of attorney's fees for a previous appeal by appellant in this estate. (In Re: Estate of Armistead, Fla.App. (1st), 240 So.2d 830.) Appellant contends that the trial court abused its discretion in fixing the date from which interest would accrue on app......