Boling v. Barnes
| Decision Date | 11 December 1968 |
| Docket Number | No. 68--51,68--51 |
| Citation | 216 So.2d 804 |
| Parties | Patricia P. BOLING and St. Petersburg Bank and Trust Company, as Executors of the Estate of R. Lee Boling, Deceased, Appellants, v. Myrtle BARNES, Appellee. |
| Court | Florida District Court of Appeals |
William L. Johnson, of Harrison, Greene, Mann, Davenport, Rowe & Stanton, St. Petersburg, for appellants.
William E. Nodine, of Richards, Nodine, Gilkey & Fite, Clearwater, for appellee.
Plaintiff-appellee sued defendant-appellants in Chancery for the imposition of a constructive trust and for damages resulting from an alleged conversion of shares of stock. The trial judge found for the appellee and appellants appeal.
Appellee was the aunt and foster parent of decedent, R. Lee Boling. During his lifetime, Dr. Boling was reared and cared for by his aunt, Myrtle Barnes. He later became a successful physician with extensive business and financial affairs. After the death of her husband, appellee deposited $9,000 in a savings account in her name only, which was the proceeds from the sale of two homes belonging to appellee and her deceased husband. Subsequently, Mrs. Barnes changed the account to a joint tenancy with the right of survivorship in the names of Dr. Boling and herself. Shortly thereafter, acting on her nephew's advice, $9,000 was withdrawn from the account and used to purchase 754 shares of Shareholders' Trust of Boston. This stock was registered in the joint names of Myrtle Barnes and R. Lee Boling, with right of survivorship. As a result of this investment, Mrs. Barnes received $55.00 per month. Subsequently, Dr. Boling with Mrs. Barnes' consent sold the Shareholders' Trust stock and purchased shares of Chase Fund. These shares were registered in his sole name.
Thereafter, Dr. Boling mortgaged the Chase Fund shares to secure a loan with St. Petersburg Bank and Trust Company. Upon the death of Dr. Boling, Patricia P. Boling and St. Petersburg Bank and Trust Company were named executors of his estate.
Upon learning that the Chase Fund shares were purchased in the sole name of the decedent, R. Lee Boling, Mrs. Barnes filed a claim against the estate which was denied. She then filed a suit in equity to impress a trust and to reclaim the Chase Fund shares. Plaintiff moved for a summary judgment and in support thereof filed affidavits. There was contained in her affidavit the following paragraph:
'The decedent, R. Lee Boling, assisted the affiant over the last ten (10) years in any business where financial matters with which she was concerned and the affiant reposed complete confidence and trust in him during his entire lifetime.'
The trial court denied appellee's motion for summary judgment and the cause came on to be heard before the trial judge.
At the trial, evidence was attempted to be elicited from the plaintiff, who was the only witness regarding the assistance and advice afforded Mrs. Barnes by the decedent. This testimony was objected to as being barred by the so- called Dead Man's Statute, F.S. § 90.05, F.S.A. The trial court ruled that since this information had been contained in the affidavit of the plaintiff in support of her motion for summary judgment that the objection thereto under the Dead Man's Statute had been waived and that such a waiver continued throughout the proceedings. The trial judge allowed the testimony on this point. At the conclusion of the trial, he made a finding of fact and entered judgment for the plaintiff-appellee, Myrtle Barnes.
In the trial judge's finding of fact, he based the same upon the case of ...
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Polk v. Crittenden, 88-633
...it is deemed waived for the remainder. Briscoe v. Florida National Bank of Miami, 394 So.2d 492 (Fla. 3d DCA 1981); Boling v. Barnes, 216 So.2d 804 (Fla. 2d DCA 1968), cert. discharged, 225 So.2d 510 (Fla.1969). A more difficult question, presented in this case, is the extent of the waiver ......
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Davis v. Davis
...which extends to all further proceedings in the same action. See also Barber v. Adams, Fla.App., 208 So.2d 869 (1968); Boling v. Barnes, Fla.App., 216 So.2d 804 (1969). 12 O.S.1971 § 442, 'The deposition, so taken, shall be sealed up and indorsed with the title of the cause and the name of ......
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Robinson v. Miller
...Mrs. Miller waived the protection of the Dead Man's Statute. Rich v. Hunter, 135 Fla. 309, 185 So. 141 (1938); Boling v. Barnes, Fla.App.2d 1968, 216 So.2d 804; Sessions v. Summers, Fla.App.1st 1965, 177 So.2d 720. Since multiple defendants are involved, the waiver of the statute's protecti......
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Boling v. Barnes, 38236
...By petition for writ of certiorari we are requested to review a decision of the District Court of Appeal, Second District reported at 216 So.2d 804, which allegedly conflicts with prior decisions of this Court and other District Courts of Our initial examination of the petition and record s......
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Dead man talking - requiem for summary judgment under Florida's "dead man's" statute.
...it is deemed waived for the remainder. Briscoe v. Florida National Bank of Miami, 394 So. 2d 492 (Fla. 3d DCA 1981); Boling v. Barnes, 216 So. 2d 804 (Fla. 2d DCA 1968), cert. discharged, 225 So. 2d 510 (Fla. 1969). A more difficult question, presented in this case, is the extent of the wai......