Comerford v. Cherry
| Decision Date | 31 January 1958 |
| Citation | 67 A.L.R.2d 796,100 So.2d 385 |
| Parties | George C. COMERFORD, Appellant, v. Joseph R. CHERRY and Aleese S. Cherry, Appellees. |
| Court | Florida Supreme Court |
Will A. Nason, West Palm Beach, for appellant.
Robert D. Tylander, West Palm Beach, for appellees.
The County Judge of Palm Beach County, after hearing the testimony of the parties, appointed Joseph R. cherry and his wife, Aleese S. Cherry, guardians of the persons and property of William Chester Comerford, Jr., and James Russell Comerford, minor sons of William Chester Comerford, deceased. The guardians are the maternal grandparents of the children, whose mother predeceased their father. Upon appeal the circuit court affirmed the order of the county judge and this appeal from his judgment was duly taken by George C. Comerford, paternal uncle of the monors, who was named guardian of the children in the last will testament of his brother, the father of the children.
The will of William Comerford executed about one week before his death, provided:
'Third: I do hereby nominate, constitute and appoint my brother, George E. Comerford, to be the legal guardian, and have the custody of my two minor children hereinabove named.'
This will was duly admitted to probate on December 15, 1954. By the will appellant was also appointed executor, and trustee of a trust for the boys during their minority. The executor qualified and was issued letters testamentary. The regularity of the proceedings is not questioned.
On December 17, 1954, the grandparents petitioned the county judge for appointment as guardians of the persons and property of the children. They alleged their relationship to the boys, ages five and four years; that the boys were beneficiaries under the testamentary trust from which income should be derived; that the boys were residing with their paternal grandmother (mother of appellant) and prayed their appointment as noted.
Appellant moved to dismiss the petition on the ground that he had been appointed guardian of the boys by the will of his deceased brother, as set forth supra. The motion was denied on January 11, 1955. On January 31, 1955, the uncle petitioned the county judge that he be appointed guardian of the person and the property of the boys. He alleged his relationship; the boys' residence in his household; his appointment as guardian of the persons and the property of the children by will; his appointment as executor and his possession of all assets of the estate except a few cattle, alleged to be in possession of appellees.
It will be noted that neither the grandparents nor the uncle alleged that the other was not qualified to act by reason of unfitness or for any other reason which might affect the general welfare and proper upbringing of the children.
The cause came on for hearing before the county judge on the petition of the grandparents and the counter petition of the uncle. The record shows that a prior will of decedent, executed about six weeks before his death and five weeks before the probated will, was received in evidence, by which decedent named appellee, Aleese s. Cherry, executrix of his estate and provided that she, or anyone she should name, should be guardian or guardians of the boys during their minority and trustee of the estate assets for their benefit.
The record of the evidence is not brought here on this appeal.
The pertinent part of the order of the county judge appointing the maternal grandparents guardians of the persons and the property of the minors is:
'* * * after having heard testimony on the question as to who should be appointed as guardian of said minors and having given due consideration to the appointment of one of the next of kin of said minors and likewise to any person designated as guardian in any will in which the said minors are beneficiaries, the court finds that said children are minors who own property in this state and that it is necessary for a guardian or guardians to be appointed for the person and property of such children; and that it is to the best interest and welfare of said children that Joseph R. Cherry and Aleese S. Cherry be guardians of the person and property of said minors; and that the said Joseph R. Cherry and Aleese S. Cherry are qualified and competent to act as guardians of said minors * * *'
Appellant advances one point for determination which is that the 'appointment' of a testamentary guardian of the person of a minor is binding upon the court until such guardian becomes disqualified.
Appellees contend that in addition to the above point there are presented others which in sum are: (1) Did the county judge, under the facts outlined above, abuse his discretion; (2) Is it necessary to remove a 'testamentary guardian' who has not qualified by procuring an order of the county judge appointing him? In other words, does the will of itself convey any power to act upon the testamentary guardian, or must his authority come from the county judge by his recognition and approval of the 'testamentary guardian', evidenced by an order formally appointing him.
The circuit court, in affirming the county judge, held that a guardian receives his power from the order of the county judge rather than from the will, that the county judge has discretion in the appointment, and that the 'appointment' by will is not binding upon the county judge (citing F.S.1955, §§ 744.33, 744.34, 744.35, 744.10, F.S.A.).
On the record it appears that this case presents to the Court for interpretation two provisions of the Florida guardianship law enacted as Chapter 22750, Laws of 1945, said act being a complete overhaul of our statutory law on the subject. These two provisions are F.S. § 744.14 and 744.35, F.S.A. The first reads as follows:
Appellant concedes that under the provisions of Sec. 744.14, supra, a testator has no power to appoint a guardian of the property of a minor. By its specific terms, which are free of any ambiguity, the statute confers on a surviving parent the right to name a guardian of the person only.
This leaves the question of whether, as a matter of law, the county judge, under the provisions of Sec. 744.35, supra, has the power in the exercise of his discretion to appoint some other qualified person to act as guardian of the person of the minor, notwithstanding the provisions of the will. There is no issue of fact before the Court since the testimony heard by the county judge was not made a part of the record.
The legislature defined certain pertinent words in the guardianship law:
(1) 'A 'guardian' is one to whom the law has entrusted the custody and control of the person or of the property or of both, of an incompetent. * * *' (F.S. § 744.03(1), F.S.A.)
(2) 'An 'incompetent' is any person who, because of minority, senility, lunacy, insanity, imbecility, idiocy, drunkenness, excessive use of drugs or other physical or mental incapacity, is incapable of either managing his property or caring for himself, or both.' (F.S. § 744.03(5), F.S.A.)
(3) 'A 'testamentary guardian' is one appointed for the person of a minor child by the will of its parent.' (F.S. § 744.03(4), F.S.A.)
Considered in the light of these definitions the language of Sec. 744.35, quoted supra, would seem to lead to the following conclusions. This statute applies to both guardians of the person and guardians of the property. The legislature was careful to designate specifically a guardian as being a guardian of the person or guardian of the property when specific provisions of the act apply solely to one type or the other. See Secs. 744.38, 744.48, 744.49, 744.50, 744.51, 744.52, and Chapter 745, F.S.1955, F.S.A.
Section 744.35, supra, applies to all classes of incompetents, the incompetency of infancy being only one. This statute is broad in scope, and lays down certain guides for the county judge in the exercise of his discretion whenever he is called upon to act under its provisions, whatever the nature of the incompetency, and in many cases the...
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...S.E.2d 233 (1982)). 33. Id. at 194, 454 S.E.2d 769. Accord Fowler v. Knebel, 266 Ga. 317, 467 S.E.2d 177 (1996). 34. Comerford v. Cherry, 100 So.2d 385, 390 (Fla. 1958). 35. Majority opinion at 36. Majority opinion at 700-701. 37. Wrightson v. Wrightson, 266 Ga. 493, 496, 467 S.E.2d 578 (19......
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Pontrello v. Estate of Kepler, 87-2033
...because the executor derives his powers from the appointment of the testator and not from appointment by the court. Cf. Comerford v. Cherry, 100 So.2d 385 (Fla.1958) (testamentary guardian derives his powers from appointment by testator, not from appointment by court). A judge treads on sac......
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