Brickell v. Di Pietro

• Decision Date: 11 October 1940
• Parties: BRICKELL et al. v. DI PIETRO.
• Court: Florida Supreme Court

198 So. 806

145 Fla. 23

BRICKELL et al. v. DI PIETRO.

Florida Supreme Court, Division B.

October 11, 1940

Rehearing Denied Nov. 26, 1940.

Certiorari to Circuit Court, Dade County; Ross Williams, Judge.

Action by Elizabeth DiPietro, by her next friend, her husband Pietro DiPietro, against Belle Brickell and Maude E Brickell, single women, for a partition and other relief. To review an order overruling defendants' motion to dismiss bill of complaint, defendants bring certiorari. Fannie Brickell, a widow, James Bain Brickell and wife Allegra Brickell filed in Supreme Court a petition for leave and authority to intervene and were permitted to file briefs.

Petition for writ of certiorari denied.

On Petition for Rehearing.

COUNSEL Stapp, Ward & Ward, of Miami, for petitioners.

Morrow & Mayes, of Miami, for respondent Elizabeth DiPietro and another.

H Pierre Branning and Cecil C. Curry, both of Miami, for respondents Fannie Brickell and others.

OPINION

CHAPMAN Justice.

On October 27, 1938, Elizabeth DiPietro, by her husband and next friend, Pietro DiPietro, filed in the Circuit Court of Dade County, Florida, her bill of complaint seeking a partition and other relief against Belle Brickell, Maude E. Brickell and other named defendants of the Brickell family. It was alleged therein that Mary Brickell, on January 13, 1922, was seized and possessed in fee simple of certain described real estate situated in Dade County, Florida, and that Mary Brickell died testate and her last will and testament was admitted to probate in the County Judge's Court of Dade County on January 21, 1922. The property involved in this suit was, in part, the homestead of Mary Brickell and pertinent portions of her last will and testament are, viz.:

'Item 4. I designate my home place or residence at Brickell Point, Dade County, Florida, with all the furniture and furnishings therein contained, together with the land attached and belonging thereto, as a homestead, and I desire and direct that the same be retained as a home for my unmarried children as long as they or any of them may live and remain unmarried, and my executors, hereinafter named, are hereby directed to maintain said premises, as hereinafter provided, out of the funds or income of my estate during the period as above mentioned. At the expiration of the period named for the maintenance of the same as a homestead, it is my will, and I hereby direct, that the said homestead premises shall be disposed of by my executors, hereinafter named, in the same manner as the other real property belonging to my estate is herein directed to be disposed of. The Homestead property referred to is more particularly described as follows: to-wit:' (Description omitted.)

'Item 5. All the rest, residue and remainder of my estate, real, personal and mixed, of which I may die possessed, remaining after the payment of my just debts, funeral expenses and expenses of administration, and not herein otherwise well and effectually disposed of, I devise and bequeath to and direct that the same shall be distributed share and share alike to my five remaining children. * * *'

'Item 6. The executors of this, my last will and testament, hereinafter named, are hereby given full and complete power and authority to collect all interest and dividends, rents and all other income and profits of every character arising from my said estate, real, personal or mixed, and to sell from time to time, when and in such manner as they may deem for the best interest of the said estate, such portion or portions of the real estate and personal property as their judgment may dictate, without being required to obtain therefor an order of any court, and, after paying from the proceeds of such income and sales the current expenses of administration, taxes, assessments, and all lawful charges against the said estate, including the maintenance of the home place, the family burial ground, approaches and grounds appurtenant thereto, as well as the expenses incident to keeping the property of the estate insured and in proper repair. * * *'

'Item 7. It is my desire and I hereby direct that the family burial ground located upon my homestead tract, and referred to in Item Four (4) of this my last will and testament, shall forever be held and maintained, and kept sacred as a family burial ground for those already interred together with myself and such unmarried children of mine as desire to be buried there, and my executors, hereinafter named, are hereby authorized and directed to have the same carefully looked after and maintained, expending such sum or sums annually as may be necessary to keep the burial plot, and roads of ingress and egress, as well as such grounds appurtenant thereto. * * *'

'Item 9. By this my last will and testament I have disposed of my estate after due consideration of the respective needs and rights of all persons. * * *'

'Item 11. I hereby appoint my daughter, Maude E. Brickell, of Miami, Florida, and Frank Clark, of Gainesville, Florida, as executors of this my last will and testament and I hereby give to and invest them, and their successors with such powers over and such title to and estate in the property in this will devised and bequested as may be necessary or convenient to carry into full effect my intentions and designs in the execution of this will, and the several devises, donations and legacies herein specified and made, * * *'.

On November 15, 1923, the heirs at law and devisees of the said Mary Brickell entered into an agreement with the executors named in the last will and testament of Mary Brickell whereby the said devisees and heirs purported to cancel the duties and charges of the testatrix set out in her last will and testament. The heirs of the late Mary Brickell, by warranty deed, conveyed their interest in and to the lands described in the bill of complaint to Bille G. Brickell, Maude E. Brickell and Alice A. Brickell. The other heirs, viz.: George M. Brickell, William B. Brickell and Charles C. Brickell, in consideration of releasing and conveying their interests to their said sisters, took other property by lawful conveyance, and copies of each of these said conveyances are attached to the bill of complaint and by appropriate allegations made a part thereof. The effect of said conveyances, it is alleged, placed the fee-simple title in Alice Brickell, Maude Brickell and Belle Brickell and each owned a one-third undivided interest in the lands therein described.

On September 12, 1924, Alice Brickell died intestate, leaving heirs at law surviving, viz.: William B. Brickell, Maude E. Brickell, Belle G. Brickell, George M. Brickell, and Charles C. Brickell, who succeeded to the right in the estate of the late Alice A. Brickell. On September 6, 1931, William B. Brickell died testate and his wife, Olive B. Brickell, by the terms of his last will and testament, succeeded to the rights and estate of William B. Brickell as an heir at law of the late Alice A. Brickell in and to the real estate described.

On February 5, 1930, Maude E. Brickell was adjudged a bankrupt in the United States Court for the Southern District of Florida and trustees were appointed, and on June 3, 1933, the trustees in bankruptcy of the estate of Maude E. Brickell sold all the rights, title and interest of the trustees in and to the said property to Elizabeth DiPietro. The report of the sale as made by the trustees was confirmed on June 5, 1933, by an order of the United States District Court, and on the same date the trustees of the estate of Maude E. Brickell executed and delivered a trustee's deed to Elizabeth DiPietro conveying their rights, title and interest in and to the property and the said deed was recorded in Deed Book 1535 at page 133, appearing in the office of the Clerk of the Circuit Court of Dade County, Florida. The interests of the respective parties to the suit in and to said property is described and set forth in the bill of complaint.

The prayer of the Bill is for: (a) appointment of a receiver; (b) an accounting; (c) a division or partition of the interests of the respective parties in and to the property described in the bill of complaint.

On December 8, 1938, Maude E. Brickell and Belle G. Brickell through counsel filed a motion to dismiss the bill of complaint on grounds, viz.: (a) there is no equity in the bill; (b) the bill of complaint shows that the title to the property sought to be partitioned is held in an irrevocable trust; (c) there is no relation of co-tenant or joint ownership entitling the plaintiff to a partition of the interests of the respective parties; (d) the purchase of the interest of Maude E. Brickell and the acquisition of a trustee's deed to the alleged interest failed to convey such an interest as would authorize the maintenance of said partition suit; (e) the alleged conveyance to the plaintiff of Maude E. Brickell's interest through bankruptcy proceedings is insufficient in law to entitle the plaintiff to maintain said suit.

The lower court heard extensive arguments on the motion to dismiss the bill of complaint and on the 4th day of June, 1940, made and entered an order overruling and denying the motions to dismiss and required the parties to file their answers to the bill of complaint on or before the rule day in July, 1940.

Maude E. Brickell and Belle G. Brickell, defendants below, on July 27, 1940, filed in this court their petition for a writ of certiorari seeking a review on the part of this court of the order of the Circuit Court of Dade County, Florida, dated June 4, 1940, overruling and denying their motion to dismiss the said bill of complaint. On July 27, 1940, Fannie Brickell, a widow, James Bain Brickell and wife Allegra Brickell,...