Bourne v. State Bank of Orlando & Trust Co.

• Decision Date: 27 June 1932
• Citation: 142 So. 810,106 Fla. 46
• Parties: BOURNE v. STATE BANK OF ORLANDO & TRUST CO. et al.
• Court: Florida Supreme Court

142 So. 810

106 Fla. 46

BOURNE v. STATE BANK OF ORLANDO & TRUST CO. et al.

Florida Supreme Court

June 27, 1932

Commissioners' Decision.

Bill of interpleader by the State Bank of Orlando & Trust Company, as executor of the last will and testament of Carrie W. Temple deceased, wherein Charlton Bourne and Dorothea Temple Mason were made parties, as claimants to certain jewelry, and wherein Charlton Bourne and Dorothea Temple Mason, joined by her husband and next friend, A. W. Mason, filed supplementary bills to the said bill of interpleader. From the decree therein, Charlton Bourne appeals.

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

COUNSEL

E. W. &amp R. C. Davis and Merton S. Horrell, all of Orlando, for appellant.

Hope Strong, of Winter Park, and G. P. Garrett, of Orlando, for appellees.

OPINION

DAVIS C.

The State Bank of Orlando & Trust Company, a corporation, as executor of the last will and testament of Carrie W. Temple deceased, filed a bill of interpleader in the circuit court, in and for Orange county, with reference to certain jewelry in the hands of said trust company, as executor, and made as parties thereto claimants to said jewelry, namely Dorothea Temple Mason, the only daughter of testatrix, and Charlton Bourne, legatee under the will, and thereafter the court entered its interlocutory decree requiring that said jewelry be deposited in the registry of the court subject to the order of the court, to be delivered to whomsoever might, under the decree of the court, be found to have the right thereto, and releasing the executor and discharging it from all claim or liability to either of the defendants for, or upon, or by reason of said personal property, and ordering the said defendants to interplead and settle and adjust their several claims, demands, and matters in controversy in said suit, as between themselves.

Pursuant to the order of the court, the jewelry was deposited in the registry of the court. It was stipulated by said defendants, represented by their solicitors, that 'whereas the answer by the respective defendants heretofore filed may not fully and completely set out the respective claims of each; that the respective defendants file a bill setting out their respective claims and that the pleadings subsequent thereto shall be in accordance and conformity with the rules of practice governing Courts of Equity in this State.' Pursuant to the terms of said agreement, Charlton Bourne filed what was termed a 'bill supplementary to said bill of interpleader,' wherein it was shown that she was a beneficiary under the last will of Carrie W. Temple, the mother of Dorothea Temple Mason, who devised and bequeathed to her, the said Charlton Bourne, all such of testatrix' 'finest jewels, as she might select to be turned over to her by' testatrix' executor; that the said Carrie W. Temple died seized and possessed of jewels and jewelry mentioned in a schedule attached to and made a part of said bill as Exhibit B, all of which were turned over to and were then in the possession, custody, and control of the said executor; that she had demanded of the executor certain jewelry therein listed by her in her bill as having been selected by her under the terms of the will and that the executor refused to turn over to her the said jewelry, except a small portion thereof enumerated in a schedule attached to and made a part of her said bill as Exhibit C; and prayed that the court decree, among other things, that the said jewelry should be, by virtue of said will, her property. To this bill, Dorothea Temple Mason, joined by her husband, interposed an answer, wherein, among other things, they denied that Carrie W. Temple 'died seized and possessed of the jewels and jewelry mentioned in 'Schedule 'B,' attached to the bill, and denied further that 'at present time any of said jewelry is now in the possession, custody, or control of the State Bank of Orlando & Trust Company, as executor of the estate of Carrie W. Temple, deceased.' It is further averred that certain jewels, listed in schedules attached to and made a part of said answer as Exhibits 1 and 2, 'were not the property of Carrie W. Temple at the time of her death, but on the contrary, were at the time of the death of the said Carrie W. Temple, the property of the said Dorothea Temple Mason. Those articles of jewelry described in Exhibit 1 hereto, were, at the time of the death of Carrie W. Temple, the property of Dorothea Temple Mason, defendant herein, and consisted of gifts given to said Dorothea Temple Mason by W. C. Temple, her father, and by Carrie W. Temple, her mother, or by other persons or were purchased by Dorothea Temple Mason for herself and owned by her and never were a part of the estate of Carrie W. Temple.' That the jewels described in Exhibit 2 were jewels that belonged to W. C. Temple at the time of his death and that as to said jewelry said W. C. Temple died intestate; that the defendant Dorothea Temple Mason was the sole and only child of W. C. Temple and Carrie W. Temple, and was therefore the sole heir of said W. C. Temple, deceased, and as such sole heir inherited said jewels from her father, and that at the time of the death of Carrie W. Temple she (Dorothea Temple Mason) was and still is entitled to the possession of and owned the same; that said jewelry was never taken into the possession of Carrie W. Temple during her lifetime, or during her lifetime severed from the estate of W. C. Temple, or during her lifetime distributed to Carrie W. Temple, and was not any part or parcel attempted to be bequeathed by the said Carrie W. Temple; that Carrie W. Temple was not an heir of W. C. Temple and had no dower in his estate, because she was provided for by his will and accepted the provisions of said will; that if the court should hold that the will of W. C. Temple bequeathed his said jewels, then the same were not in and by his said will bequeathed to Carrie W. Temple, but, on the contrary, were left in trust to the trustee named in said will, for the purposes stated in said will. It is further averred that the reason that the jewels in question were found in the safety deposit box in the State Bank of Orlando & Trust Company, wherein jewelry belonging to Carrie W. Temple was found, was that the said box was used, not only for the jewels of Carrie W. Temple, but for jewels which she knew belonged to Dorothea Temple Mason and to which Carrie W. Temple made no claim and which she allowed her daughter, Dorothea Temple Mason, to deposit therein for an accommodation for the handling of said jewels only; that said box was known as the family safety deposit box of the Temple family and that there was no 'intention on the part of Carrie W. Temple to claim all the contents of the same or to assert that all the jewelry kept in the safety deposit box belonged to her.' It is further averred that the jewels contained in said box and described in Exhibits 1 and 2 (which are the jewels in controversy here) were not claimed by Carrie W. Temple to belong to her.

The defendants Dorothea Temple Mason, joined by her husband and next friend, A. W. Mason, also filed what was termed a 'supplementary bill to said bill of interpleader,' setting up in substance the matters set out in their answer to the bill filed by Charlton Bourne to which bill Charlton Bourne demurred upon the grounds that the bill showed that the said complainant therein, Dorothea Temple Mason, was guilty of laches and that said bill was without equity. This demurrer was overruled by the court, whereupon Charlton Bourne filed a plea to the said bill of Dorothea Temple Mason, wherein she asserted that the said Dorothea Temple Mason 'did not within twelve months from the date of March 21st, 1925 (the same being the date of the publication of the notice required to be given to creditors, legatees, distributors and all persons having claims or demands against the estate of testatrix), present to the County Judge granting letters testamentary on said estate, at his office in the Court House of said County, any sworn claim or demand or proof thereof, as and when required by said chapter 10119, Acts of Florida, 1925,' and therefore that the supposed claim or demand of the said Dorothea Temple Mason was barred. Whereupon, the said Dorothea Temple Mason and A. W. Mason, her husband, ordered the said plea set down for argument and requested the clerk to enter such order in the chancery order book.

To the answer of Dorothea Temple Mason and her husband, Charlton Bourne, by leave of the court, filed a replication setting up in substance the matters set out in her plea to the bill filed by Dorothea Temple Mason, joined by her husband and next friend.

An order was entered by the court sustaining the plea of Charlton Bourne to the bill of Dorothea Temple Mason and husband; a special master was appointed to take testimony and report the same to the court.

With reference to the jewelry listed as Exhibit 1, attached to the said joint and several answer of Dorothea Temple Mason to the bill of Charlton Bourne, the court found the same to be the property of the said Dorothea Temple Mason, and decreed that it be delivered to her. With reference to the jewelry described in Exhibit 2, attached to said answer, the court found the same to be the property of W. C. Temple's estate and that it ought to be turned over the properly authorized representative of said estate, upon application being made for the same. The court found further that the jewelry listed in said Exhibits 1 and 2 was all of the jewelry that was in controversy and that Charlton Bourne is without any right, title, or interest in any of it. The court decreed that the jewelry listed in Exhibit 2 be held by the...