Constant v. Tillitson

• Decision Date: 19 September 1968
• Docket Number: No. K--89,K--89
• Citation: Constant v. Tillitson, 214 So.2d 91 (Fla. App. 1968)
• Parties: Viola CONSTANT, as Executrix of the Estate of Tillithia Jane Edwards, Deceased, Appellant, v. Mary E. TILLITSON, Appellee.
• Court: Florida District Court of Appeals

Page 91

214 So.2d 91

Viola CONSTANT, as Executrix of the Estate of Tillithia Jane Edwards, Deceased, Appellant, v. Mary E. TILLITSON, Appellee.

No. K--89.

District Court of Appeal of Florida, First District.

Sept. 19, 1968.

A. K. Black, Lake City, for appellant.

Brannon, Brown, Norris, Vocelle & Haley, Lake City, for appellee.

WIGGINTON, Chief Judge.

Appellant as executrix of her mother's estate has appealed a final order rendered by the County Judge of Columbia County, in probate, finding that the sole remaining assets of the estate administered by her are owned by a stranger to the estate, and ordering that the fund be paid over to the one found entitled thereto. Appellant questions the probate court's jurisdiction to determine ownership of the estate assets and to order that it be paid to the claimant thereto under the circumstances shown by this record.

Frank R. Edwards and Tillithia Jane Edwards, husband and wife, were fatally injured in an automobile collision in September, 1964. The husband survived the wife by only a few days before expiring. After his death there was found among his personal possessions a cashier's check dated only a few days prior to his death in the sum of $4,100.00. Both the husband and wife were named as payees of the check. There is no clear or persuasive evidence in the record to indicate the source or origin of the funds represented by the check. There is an inference that the check might have represented the proceeds derived from the sale of a contract owned and assigned by both the decedents shortly prior to their death involving a parcel of land in Columbia County, but such an inference is only speculative.

Appellant, Viola Constant, daughter of Tillithia Jane Edwards, petitioned the court and was appointed executrix of the will of her deceased mother. As the stepdaughter of the husband, Frank R. Edwards, she also petitioned the court and was appointed administrator of his estate. After qualifying as personal representative of both decedents' estates, appellant filed a motion praying for an order authorizing her in her respective representative capacities to endorse the cashier's check and deposit one-half of the proceeds to the credit of each of the estates administered by her. After hearing, the motion was granted and an order duly rendered authorizing appellant to cash the check and divide the funds equally between the estates in accordance with the prayer of her motion.

Such division was made by appellant as authorized by the court and thereafter each estate was duly administered and various expenses incurred in connection with the administration were paid. The estate of Tillithia Jane Edwards was possessed of no assets other than the proceeds received from the cashier's check mentioned above.

Two years and five days following receipt of the funds derived from the check in question, the county judge held a hearing on appellant's motion for approval of her final report and for the allowance of attorney's and executrix' fees. At the conclusion of the hearing the court rendered its final order disallowing any additional fees to the attorney for the estate, refusing to award any compensation to the executrix for her services in connection with the administration of the estate, and further holding as follows:

'(5) That at the time of the death of Frank R. Edwards he was the owner of the $2,050.00 received by the said Executrix, having become the owner thereof by virtue of an Estate by the Entireties and that the sum of $1,837.38, this being the amount unexpended, should be and it is directed the same be paid over to the Estate of Frank R. Edwards.

'(6) That the challenge made by the Executrix to the effect the Court is without jurisdiction to determine the ownership of the $2,050.00 is hereby overruled.'

It is the above-quoted provision of the foregoing final order rendered by the county judge that is challenged on this appeal.

Appellant contends, and we agree, that the county judge was without jurisdiction to make the determination set forth in his final order rendered in this case. No claim against the estate to Tillithia Jane Edwards was ever filed by anyone interested in the estate of Frank R. Edwards, nor...