Cooey v. Cooey

• Decision Date: 09 June 1938
• Parties: COOEY et al. v. COOEY.
• Court: Florida Supreme Court

182 So. 202

132 Fla. 716

COOEY et al. v. COOEY.

Florida Supreme Court

June 9, 1938

Suit to establish ownership of a note by gift to plaintiff from W. M Cooey, deceased, by Julia Lee Cooey against Mattie H. Cooey and another, individually and as administrators of the estate of W. M. Cooey, deceased. Decree for plaintiff, and defendants appeal.

Affirmed. Appeal from Circuit Court, Holmes County; E. C Welch, Judge.

COUNSEL

John H Carter and John H. Carter, Jr., both of Marianna, for appellants.

James N. Daniel, of Chipley, for appellee.

OPINION

BUFORD Justice.

Bill of complaint was filed by Julia Lee Cooey against Mattie H. Cooey and Walter Cooey, individually and as Administrators of the estate of W. M. Cooey, deceased, in which it was alleged in substance that complainant was a daughter of W. M. Cooey; that during his lifetime her father made certain loans to Boards of Public Instruction of three Counties and that prior to his death he made gifts of the notes, due bills and warrants evidencing these loans and gave to plaintiff a $2,000.00 note made by the Board of Public Instruction of Bay County, Florida. It was alleged that the decedent caused the Board of Public Instruction of Bay County to issue a note payable to the plaintiff of $2,000.00 but the note was not actually delivered to plaintiff but was retained by her father so that he collected the interest thereon from time to time; that it was the intention of her father to make a gift of the principal to her and she accepted the same; that at her father's death the defendants took charge and possession of his papers and personal assets, including this note and were contending that the note was an asset of the estate; that the said note was not included in the inventory of the personal property. It was also alleged that the decedent had openly declared and stated that he had given the note for $2,000.00 to the plaintiff and the plaintiff claimed either a valid gift or the execution of a trust in her favor and that the facts and circumstances showed a valid trust in favor of plaintiff with delivery of the note to her father, W. M. Cooey, as trustee. There are certain other allegations as to necessity for discovery. The prayer was that the Court would require the production of the original note and decree that the plaintiff was the owner of it and entitled to its possession; that if for any reason the defendants were unable to deliver the note that judgment be entered against them as individuals and as representatives of the estate. On June 2, 1936, the defendants answered the bill, each representative filing a separate answer. The administrator, Walker Cooey, answered that he was without knowledge as to whether a gift of the note for $2,000 was made to the plaintiff and admitted that it was not inventoried as an asset of the estate. The administratrix, Mattie Hester Cooey, widow of the decedent and stepmother of the plaintiff, denied that the deceased intended a gift of the note to the plaintiff and claimed that before his death, W. M. Cooey gave the note to the defendant as his wife and that she was to have the note and claimed a valid gift to her. She further denied that she has ever contended that the note was an asset of the estate and contended in her answer that the note was her property but she says that if her contention is not sound the note would then be an asset of the estate. A copy of the note is in the transcript.

In September, 1936, a second amendment was filed to the original answers setting up that the defendants were appointed administrator and administratrix on June 26, 1934, and forthwith published notice to creditors and the plaintiff did not within eight months from the first publication, or at any other time, file in the office of the County Judge her claim for the amount of the note, or for the note, and that, therefore, her claim is void. The plaintiff moved to strike this amendment on the grounds that plaintiff was not required to file a claim on this note, that the statute of non-claim is not applicable, that the defendants do not claim the note as an asset of the estate. The Court granted this motion as shown by supplement to the transcript. Thereafter testimony was taken and a final decree was rendered finding the equities to be with the plaintiff and that she is the owner of and entitled to the possession of the note and that the defendants should surrender it to her and pay the costs of the suit.

The only question for our determination is whether or not the complainant's right to the relief prayed is barred by the non-claim statute.

Appellant relies on the statute, Sec. 120 of Florida Probate Act of 1933, Acts 1933, c. 16103, which is as follows:

'Section 120. Form and Manner of Presenting Claims--Limitation.--No claim or demand, whether due or not, direct or contingent, liquidated or unliquidated, or claim for personal property in the possession of the personal representative or for damages, shall be valid or binding upon an estate, or upon the personal representative thereof, or upon any heir, legatee or devisee of the decedent unless the same shall be in writing and contain the place of residence and post office address of the claimant and shall be sworn to by the claimant, his agent or attorney and be filed in the office of the County Judge granting letters. Any such claim or demand not so filed within eight months from the time of the first publication of the notice to creditors shall be void even though the personal representative has recognized such claim or demand by paying a portion thereof or interest thereon or otherwise; provided, however, that the lien of any duly recorded mortgage and the lien of any person in possession of personal property and the right to foreclose and enforce such mortgage or lien shall not be impaired or affected by failure to file claim or demand as hereinabove provided, but such failure shall bar the right to enforce any personal liability against the estate, and the claimant shall be limited to the enforcement of the mortgage or lien against the specific property so mortgaged or held.

'Nothing herein contained shall be construed to require any legatee, devisee or heir at law to file any claim for the share or interest in the estate to which he may be entitled.'

The question is based on the order granting complainant's ...