Berger v. Jackson

• Decision Date: 20 July 1945
• Citation: 156 Fla. 768,23 So.2d 265,156 Fla. 251
• Parties: BERGER v. JACKSON.
• Court: Florida Supreme Court

23 So.2d 265

156 Fla. 251, 156 Fla. 768

BERGER v. JACKSON.

Florida Supreme Court

July 20, 1945

Rehearing Denied Oct. 5, 1945.

Appeal from Circuit Court, Hillsborough County; Frank A Smith, judge.

Whitaker Bros. and Cooper & Cooper, all of Tampa, for appellant.

Mabry Reaves, Carlton, Anderson & Fields, of Tampa, for appellee.

BROWN, Justice.

The appellant here was plaintiff in the court below. He brought suit against the appellee, Wm. H. Jackson, as administrator ad litem of the estate of Letitia v. Graham, deceased. The suit was an action in assumpsit for money alleged to be owing plaintiff below by virtue of an agreement made by Mrs. Graham in her lifetime with the plaintiff to compensate him upon her death. The plaintiff and Riley J. McMaster were executors of the estate of Mrs. Graham, but when the plaintiff Ernest Berger filed this claim the County Judge appointed the appellee as administrator ad litem with reference to this particular matter and appellee, as such administrator ad litem, rejected the claim; whereupon this action at law was instituted in the Circuit Court of Hillsborough County within twelve months from the first publication of notice to creditors.

Mrs. Letitia V Graham, a resident of Hillsborough County, died testate, at an advanced age, on December 16, 1938. Within a few days after her death, Mrs. Beatrice Newport filed for probate in the County Judge's Court a purported will, and a few days later, a second will, which antedated the first and a codicil thereto, was also filed in the County Judge's Court which will, by a codicil thereto, named as coexecutors Ernest Berger and Riley J. McMaster. The validity of the first will filed by Mrs. Newport was hotly and vigorously contested. This litigation lasted for several years. The County Judge made an order that he would not appoint a personal representative of the estate until the validity of these respective wills had been duly determined, and appointed a curator on December 19, 1938. In his order the County Judge stated that he did not intend to admit to probate 'any of the wills or codicils, theretofore filed or which may here after be filed in this court, of the said Letitia V. Graham' until a full hearing thereon and the determination by the court as to which is the true last will and testament of said decedent; and that 'It is necessary that a curator be appointed to take charge of the estate of said Letitia V. Graham, deceased, until letters are granted for the administration of her said estate,' and proceeded to appoint the First Savings & Trust Company of Tampa as such curator, and authorized and empowered said curator 'to perform any and all duties or functions of an administrator or executor under such special orders of this court as may from time to time hereafter be entered in this cause.' The court further directed the curator to file an inventory of the property of the estate, and that upon the qualification of the personal representative of the estate of the decedent, the curator shall immediately account to such personal representative and deliver to him all of the assets of the estate.

The litigation concerning the validity of what is referred to as the Newport will was vigorously waged and lasted for some three years. A vast amount of testimony was taken and documentary evidence adduced. The County Judge held that this will was invalid. Upon appeal, the Circuit Court held it to be valid, and on appeal from that judgment to this court the Circuit Court was reversed. Meanwhile, said curator properly assumed its duties under the orders of the County Judge's Court and performed any acts which any administrator or executor would have been compelled to perform during that period. The curator preserved and protected the estate and paid out various sums amounting in all to about $100,000 for funeral expenses, for caring for the property of the estate, for court costs and attorneys fees, and for fees and commissions to it for performing many other duties and acts in the administration of said estate, as shown by the files and records in the County Judge's office. It was not until December 19, 1941, that this court entered its judgment reversing the Circuit Court and remanding the cause for further proceedings in accordance with its judgment and opinion. On May 22, 1942, Hon. T. Frank Hobson of the 6th Judicial Circuit, acting pro hac vice as Circuit Judge of the 13th Circuit by assignment of the Governor, duly entered an order whereby the former Circuit Court judgment was reversed, and the order of the County Judge, denying said petition of Mrs. Newport, was affirmed and remanded the cause to the County Judge's Court for further appropriate proceedings, whereupon the County Judge's Court resumed jurisdiction and probated the last will and codicil thereto of Mrs. Graham, dated June 19, 1934 (the codicil being dated October 6, 1936), and, on July 7, 1942, the County Judge's Court admitted said will of June 19, 1934, and the said codicil, to probate, and on December 22, 1942 issued letters testamentary to said Ernest Berger and Riley J. McMaster. During the period of its administration of said estate, the curator maintained the position that no letters testamentary could or should be issued by said County Judge's Court pending the final outcome and determination of the controversy over the validity of said Newport will. Plaintiff alleged that the defendant administrator ad litem, by succeeding in privity under the curator, is estopped from maintaining his fifth plea, which plea alleged that 'letters testamentary or of administration were not taken out within three years after the death of said Letitia V. Graham, and this action was not brought until after three years from her death.'

The facts above related were alleged in the defendant's replication to plaintiff's fifth plea, and other pleas.

The learned Trial Judge in his rulings on the pleadings held that plaintiff's cause of action was not barred by the three year statute of limitations, Section 95.11(5)(e), Florida Statutes of 1941, F.S.A. He also held that the oral agreement, such as was sued on here, was not within the statute of frauds, Sec. 725.01, F.S.1941, F.S.A., which pertains to an agreement that is not to be performed within the space of one year within the making thereof, etc. Appellee has filed cross-assignments of error to these two rulings. In view of the case of Exchange Bank of Tampa v. Bryan, 122 Fla. 479, 165 So. 685, 686, and Yates v. Ball, 132 Fla. 132, 181 So. 341 and other authorities hereinafter cited, we are not, on this record, prepared to disturb the court's rulings on those two questions. But the Circuit Court held that plaintiff was not entitled to recover because of Section 186 of the probate act of 1933, now appearing as section 734.29, F.S.1941, F.S.A.

The controlling question here is the first of the 'questions involved' stated by appellant, which is in substance as follows: 'Is an estate unadministered within the intent, purview and meaning of Section 734.29, F.S.1941, being section 186 of the Probate Act of 1933, (quoting the statute) where, within three years from the death of the testator, there has been filed in the Probate Court two proper petitions for letters testamentary and there has been as much litigation, disbursement of monies, determination of controversies, and exercise of jurisdiction by the Probate Court over the estate, as is set forth in, and indicated by, plaintiff's replication to defendant's specified pleas?

This we think presents the controlling question here.

Section 734.29, F.S.1941, F.S.A., being section 186 of the Probate Act of 1933, Chapter 16103 of the General Laws of 1933, reads as follows: 'Section 186. LIMITATION AGAINST UNADMINISTERED ESTATES.--After three years from the death of any person, his estate shall not be liable for any obligation or upon any cause of action unless letters testamentary or of administration shall have been taken out within said three years; provided, however, that the lien of any duly recorded mortgage and the lien of any person in possession of any personal property and the right to foreclose and enforce such mortgage or lien shall not be impaired or affected by the limitation imposed hereby, but the same shall bar the right to enforce any personal liability against the estate of the decedent.'

We must give due weight and effect to the title of this section, which was placed at the beginning of the section by the legislature itself, and in capital letters. Indeed we have already done so, as shown by what was said by Mr. Justice Thomas, speaking for the Court, in his opinion in the case of Gilpen v. Bower, 152 Fla. 733, 12 So.2d 884, which was: 'By referring to Section 186 of the Probate Act, Section 734.29, Florida Statutes, 1941, F.S.A. § 734.29 we find that an estate unadministered for three years is not liable for debts excepting, only, liens of those in possession of personal property and recorded mortgages.' (Emphasis supplied.)

The heading of this section is not to be classed with words or titles used by compilers of statutes as a sort of index to what the section itself is about or has reference to, but it is the legislature speaking and it says in effect that section 186 is intended to be a 'limitation against unadministered estates.' In the light of the facts as shown by this record, this estate was being administered upon by the Probate Court within a few days after the death of Mrs Graham, when the Newport will was filed for probate, and when a second and different will was filed for probate, and when the County Judge made his order that he would not issue any letters testamentary until it was determined which of these wills, if either, was a valid will, and when,...