Bateman's Estate, In re, 73-599
| Decision Date | 12 February 1974 |
| Docket Number | No. 73-599,73-599 |
| Parties | In re ESTATE of Will Paul BATEMAN, Deceased. |
| Court | Florida District Court of Appeals |
John H. Lewis, Hollywood, for appellant.
Shutts & Bowen and Phillip G. Newcomm, Miami, for appellee.
Before BARKDULL, C. J., and HENDRY and HAVERFIELD, JJ.
On February 2, 1971, the appellant filed in the trial court a petition to re-open the administration of the Estate of Will Paul Bateman. Appellant is a cousin of the decedent, and he seeks to claim a legacy under the will of $5,000 in cash and certain watches. However, the terms of the will provided that the bequest, if the same were not claimed in writing from the executor within eight months of the testator's death, would lapse.
On March 4, 1966, the executor of the estate was discharged, and no timely claim for the bequest had been made. Therefore, the bequest lapsed and became a part of the residuary estate which in turn became part of the corpus of a testamentary trust established by the testator.
The trustees, appellees H. N. Boureau and the First National Bank of Miami, filed a motion to dismiss the petition for reopening which the trial court granted, and dismissed the petition with prejudice.
Appellant raises two points on appeal: (1) the petition for re-opening was proper under Fla.Stat. § 734.26, F.S.A., and Fla.Stat. § 734.23, F.S.A., is not applicable to this case; and (2) the bequest did not lapse by virtue of appellant's failure to comply with the condition stated in the will because the executor did not exercise reasonable diligence to locate him.
With respect to appellant's first point, we hold that Section 734.23 is applicable in this case, and Section 734.26 is not. The latter statute is clearly applicable to situations wherein newly discovered property is involved or 'if it becomes necessary or proper for any cause that further administration of the estate be had.' See In re Sackett's Estate, Fla.App.1965, 171 So.2d 906.
Section 734.23 bars suits against a personal representative unless commenced within one year from the date of discharge. This section is not an absolute bar to a suit filed after the one year period, for example in a situation where the personal representative has exercised fraud. Karpo v. Deitsch, Fla.App.1967, 196 So.2d 180. However, we do not accept the appellant's narrow interpretation that the statute is intended only to limit the liability of a personal representative, and is inapplicable in the instant case. Appellant concedes that the executor acted neither fraudulently nor dishonestly in the cause sub judice, but only that he 'failed to make reasonably diligent efforts to locate' the appellant so that he could comply with the condition...
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Van Dusen v. Southeast First Nat. Bank of Miami
...(Fla. 3d DCA 1967) (construing section 734.23, Florida Statutes, the predecessor to section 733.901(5)); see also In re Estate of Bateman, 290 So.2d 528, 530 (Fla. 3d DCA 1974) In Karpo, heirs of the decedent charged the administratrix with concealing from them the true worth of the estate ......
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Klem v. Espejo-Norton, 3D06-3080.
...to find her, ... with affirmance of the order before us denying her motion to reopen the estate [is in order]. See Estate of Bateman, 290 So.2d 528 (Fla. 3d DCA 1974); Phillips v. Ball, 1960 OK 145, 358 P.2d 193 It should be pointed out, however, a separate action may now be successfully ma......
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Wooster School Corp. v. Hammerer
...generally speaking, where a testamentary gift is subject to a valid condition, performance thereof is required. In Re Estate of Bateman, 290 So.2d 528 (Fla. 3rd DCA 1974). In some instances the courts have held that impossibility of performance will not excuse failure of a devisee to comply......
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