Cone v. Benjamin

• Decision Date: 26 July 1946
• Citation: 27 So.2d 90,157 Fla. 800
• Parties: CONE et al. v. BENJAMIN et al.
• Court: Florida Supreme Court

27 So.2d 90

157 Fla. 800

CONE et al. v. BENJAMIN et al.

Florida Supreme Court

July 26, 1946

[Copyrighted Material Omitted]

Appeal from Circuit Court, Pinellas County; T. Frank Hobson, judge.

James H Finch, of Marianna, Tage Joranson, of Chicago, Harry H Wells, of Tallahassee, and Edward Schatz, of Chicago, Ill., for appellants.

Carey & Harrison, Joe W. Davis, and Harold G. Davis, all of St. Petersburg, for appellees.

BROWN, Justice.

On January 28 1931, Harrison J. Stewart and Ada Cone Stewart, his wife, an aged and childless couple, who had been residents of St. Petersburg, Florida, for some twenty years, lost their lives in that city as a result of a collision between an automobile in which they were riding and a train. Both died on the day of the collision, but the husband died about an hour prior to the death of his wife. Each of them left a will giving to the other all of his or her estate. Both wills were duly probated.

Soon thereafter the County Judge of Pinellas County appointed Roy L. Benjamin as administrator with the will annexed of the estates of each of the deceased persons, and he duly qualified as such. The estate of Harrison J. Stewart consisted mostly of personal property, stocks, bonds, mortgages, etc., which the administrator's inventory showed amounted to $47,803.13, and some real estate of the value of $10,000, or more. The inventory of Ada Cone Stewart's estate showed no assets discovered. Notice to creditors, legatees, distributees, etc., was duly published for eight weeks, and proof of publication filed, as required by Sections 5597, 5598, C.G.L. of 1927.

On February 15, 1932, Roy L. Benjamin, as administrator c. t. a. of the estate of Harrison J. Stewart, filed a bill of complaint in the Circuit Court of Pinellas County, entitled 'A bill for instructions to administrator,' against himself, as administrator of Ada Cone Stewart's estate, the New England Life Insurance Company, and unknown heirs of Ada Cone Stewart. The purpose of the bill was to determine which of the decedents died first, and who were the proper heirs and beneficiaries to receive the assets of the two estates. The bill alleged that several named persons had been ascertained to be the heirs of Harrison J. Stewart, to-wit, one brother, three sisters, and the children of deceased sisters; that plaintiff had made diligent search and inquiry for any heirs of Ada Cone Stewart, but was unable to locate or discover any such; that he believed that some there were or might be; and the unknown heirs of Ada Cone Stewart were made parties defendant to the bill to the end that they might answer the same. An administrator ad litem was appointed by the chancellor to represent the estate of Ada Cone Stewart and a guardian ad litem was appointed to represent all unknown parties who were her proper heirs, and each of the persons so appointed filed appropriate answers and demanded strict proof of the allegations of the bill.

In such chancery suit, service by publication was ordered and was undertaken to be procured on the unknown heirs of Ada Cone Stewart, but none appeared personally or by attorney, and a decree pro confesso was entered against them. The order for publication (omitting the style of the case, the name of the court, the signature of the clerk, etc.) was dated Februar 17, 1932, and read as follows: 'It appearing by affidavit filed in the above stated cause that affiant has made diligent search and inquiry for the whereabouts of any heirs of Ada Cone Stewart (also known as Ada C. Stewart) deceased, and is unable to locate any such heirs, but is informed and believes that there are, or might be heirs of the said decedent whose names, ages, addresses and places of residence are unknown, who claim some interest in the subject matter and property described in the Bill filed herein by virtue of such heirship, the defendants therein named, that there is no one in the State of Florida service of subpoena upon whom would be binding upon said unknown defendants; it is therefore ordered that said unknown defendants be and they are hereby required to appear to the bill of complaint filed in said cause on or before Monday, the 4th day of April, A. D. 1932, otherwise the allegations of said bill will be taken as confessed by said defendants.'

The testimony of several ladies, who had been personal friends and neighbors of Mrs. Stewart, in St. Petersburg, was taken in the chancery suit. They testified that they had known Mrs. Stewart quite intimately for some nineteen or twenty years and that she had told them that she had no living relatives, and that as she told one of them she was 'the last of her line'; that she and Mr. Stewart had had one child who had died in early childhood, and that she, Mrs. Stewart, had no relatives at all. There was also testimony as to when and how Mr. and Mrs. Stewart had been injured and a physician testified as to the times of their respective deaths.

Final decree was filed May 3, 1932. The chancellor found that the court had jurisdiction of the parties and the subject matter; the decree pro confesso against the unknown heirs of Ada Cone Stewart was confirmed; that Harrison J. Stewart died on January 28, 1931, at 5:30 p. m., and that all of his property passed under his will to Ada Cone Stewart, who died on the same day at 6:30 p. m.; that at the time of her death Ada Cone Stewart had no living children, father, mother, brothers or sisters, or their descendants, nor any paternal or maternal kindred or living relatives, and that her said husband had predeceased her; but that at the time of her death there were living heirs and kindred of her deceased husband, Harrison J. Stewart; that under Section 5485, C.G.L., Fla. 1927, all of Ada Cone Stewart's property shall go to the kindred of her husband, Harrison J. Stewart, in like course as if said husband had survived the said Ada Cone Stewart and had then died entitled to the estate, and that the heirs of Harrison J. Stewart 'do receive the same' under the proper administration of the estate of said Ada Cone Stewart deceased.

No appeal was taken from this decree, and the administration of the two estates proceeded under the supervision and orders of the Probate Court of Pinellas County and distribution of the assets (corporation stocks and cash) was made to the fourteen heirs of Harrison J. Stewart, by the County Judge's order, pursuant to the Circuit Court's decree above referred to. One of these heirs was Lottie K. Benjamin, a niece of H. J. Stewart, who received $1,250 in money and four shares of stock.

After he had filed his final reports and his applications for discharge late in 1934, but before his application for discharge as administrator of Ada Cone Stewart's estate had been acted upon by the County Judge, Roy L. Benjamin died on January 12, 1935, and thereafter his widow, Mrs. Lottie K. Benjamin, was appointed and qualified as administratrix c.t.a., de bonis non, of the estate of Ada C. Stewart, and Joseph W. Davis was appointed administrator c.t.a., de bonis non of Harrison J. Stewart's estate. On November 25, 1935, after due approval of his final report, Joseph W. Davis was discharged as such administrator of Harrison J. Stewart's estate, and on September 19, 1936, after approval of her final report, Lottie K. Benjamin was discharged as such administratrix c.t.a., de bonis non of Ada Cone Stewart's estate. In each of these orders of discharge the sureties on the respective administrative bonds were also discharged and letters of dismissal were granted. The Probate Court, in its orders of discharge, stated that the estates had been regularly and honestly administered. Thus the administration of these two estates was fully completed and closed on September 19, 1936.

Eleven months later, on August 19, 1937, a bill of complaint was filed in the Circuit Court of Pinellas County, which bill named Charles S. Cone and twelve others as plaintiffs, who alleged that they were the heirs of Ada Cone Stewart, the defendants therein named being the above-mentioned administrators of the estate of Harrison J. Stewart and Ada Cone Stewart, and the sureties on their respective administrative bonds, and the fourteen distributees who were the heirs of Harrison J. Stewart, who had received he assets of the two estates. Some nine named persons were made defendants who were alleged to be other heirs of the deceased Mrs. Stewart but who had not joined in the suit, 'and all other parties claiming interests under Ada Cone Stewart, deceased, or otherwise.' The purpose of the bill was to secure possession of the assets which, nearly two years before, had been distributed through the administrative proceedings on the estate of Ada Cone Stewart, above outlined, and the real estate as well.

On August 17, 1938 the plaintiffs in the original bill of complaint, filed an 'amended bill of complaint in the nature of a bill of review' against the said distributees and the sureties on the bonds of the administrators in the probate proceedings above referred to. The bill alleged that the decree in the chancery suit was void as to these plaintiffs, because the chancery court had never obtained jurisdiction of them, and that the orders of distribution made by the probate court, based upon the chancery decree, were likewise void. The amended bill alleged that 'not until within three months of the filing of the original bill of complaint herein did the plaintiffs herein, or any of them, have any notice or knowledge whatsoever of the death of either Ada or Harrison, or that these plaintiffs or either of them were and are heirs of Ada, or of the proceedings aforementioned,' and that by the exercise of reasonable diligence they could not have sooner learned of said events or...