Aston's Trust, In re

• Decision Date: 08 March 1971
• Docket Number: No. 70--343,70--343
• Citation: 245 So.2d 674
• Parties: In re TRUST Under the Will of Fred A. ASTON, Deceased.
• Court: Florida District Court of Appeals

Page 674

245 So.2d 674

In re TRUST Under the Will of Fred A. ASTON, Deceased.

No. 70--343.

District Court of Appeal of Florida, Fourth District.

March 8, 1971.

John H. Wahl, Jr., and Charles P. Sacher of Walton, Lantaff, Schroeder, Carson & Wahl, Miami, for appellant, Fred A. Aston, III.

John C. Strickroot and Charles Lea Hume of Fowler, White, Humkey, Burnett, Hurley & Banick, Miami, for appellees, Jayne M. Aston and John W. Aston.

WALDEN, Judge.

This appeal challenges the correctness of a post judgment order which granted a petition for rehearing under the auspices of Rule 1.540(b), F.R.C.P., 31 F.S.A. We reverse as a matter of procedural law.

Based upon the answer, waiver and consent filed in proper person by John W. Aston and Jayne M. Aston, the circuit court entered its final appealable order construing the will of Ada E. Aston. The critical ruling was that Ada E. Aston had exercised the power of appointment contained in a certain testamentary trust. This was done on November 13, 1969. This judgment was not appealed or in anywise stayed. Seventy-seven days later, after the time for rehearing ¹ and after the time for taking an appeal ² had long since expired, John W. Aston and Jayne M. Aston filed an unverified petition, stating:

'1. Through misunderstanding, the petitioners heretofore had been of the impression and opinion that their individual interests, both jointly and severally, were being represented by counsel of record on behalf of the trustee in the subject cause, and had been so represented at the hearing heretofore held on the Amended Petition for Construction of Will; that subsequent thereto, and subsequent to the expiration of ten days from November 13, 1969, the petitioners have been advised that to the contrary, counsel on behalf of JAYNE M. ASTON, Trustee, appeared before this Court in their capacity as counsel for the Trustee only and not as counsel for either JAYNE M. ASTON individually, or her son JOHN W. ASTON.

'2. That each of the petitioners, jointly and severally, have an adversary position related to the construction of the Will of Ada E. Aston, and are directly and materially affected by any construction thereof; that the order on Amended Petition for Construction of Will heretofore entered on November 13, 1969, in the absence of argument and in the absence of direct representation in their behalves, jointly and severally, at the hearing on said petition has been and is prejudicial to their individual interests.

'3. That the petitioners have, as a result of the foregoing misunderstanding, retained counsel of record to appear in their individual behalves, and to present to this Court their position as it pertains to the valid and proper construction of the Will of Ada E. Aston; that the petitioners respectfully suggest unto the Court that the order on the Amended Petition for Construction of Will is erroneous and was entered by this Court without full and complete argument being presented as to all issues in question pertaining thereto.

'4. That this Court, by the aforesaid order retain (sic) jurisdiction over this Trust, and accordingly has at this time jurisdiction over the subject matter including further argument as to a proper and appropriate construction of the Will in question.

'WHEREFORE, the petitioners respectfully request a rehearing on the Amended Petition for Construction of Will following a reasonable opportunity for their undersigned individual counsel to prepare therefor, and an interim stay of all proceedings in this cause pending a ruling on the said requested rehearing.'

The appellant's motion to strike the petition on the grounds of untimeliness was denied, although the petition was grossly tardy.

The circuit court granted the petition for a rehearing and indicated that it was being 'treated as a motion under Rule 1.540(b), (F.R.C.P.)' Thereafter, the trial court completely reversed its initial judgment and construction of the will by determining that Ada E. Aston had Not exercised the power of appointment.

The critical question before us is whether the trial court correctly entertained the petition. We think not.

Under Rule 1.540(b), F.R.C.P., the vehicle used by the trial court, the only possible avenue open to John and Jayne Aston would rest upon a showing of mistake or excusable neglect.

Dissecting the petition down to bare frame, in light of this rule, we see only that petitioners '(t)hrough misunderstanding, * * *' thought they were represented by counsel at the hearing. We are in no way told the circumstances leading up to and provoking the misunderstanding. We do not know who caused the misunderstanding or whether it was justified or...