Coral Gables First Nat. Bank v. Colee

• Decision Date: 23 January 1945
• Parties: CORAL GABLES FIRST NAT. BANK v. COLEE.
• Court: Florida Supreme Court

20 So.2d 675

155 Fla. 498

CORAL GABLES FIRST NAT. BANK v. COLEE.

Florida Supreme Court

January 23, 1945

Modified on Denial of Rehearing Feb. 19, 1945.

Howell, McCarthy, Lane & Howell, of Jacksonville for petitioner.

Hendricks & Hendricks, of Miami, for respondent.

TERRELL, Justice.

This is a companion case to Coral Gables First National Bank v. Hart, 20 So.2d 647. In this case, Catherine H. Colee died intestate in Miami, April 29, 1944; her husband, Otis M. Colee, the respondent, was her sole heir and her only asset consisted of a bank deposit in Coral Gables First National Bank in the amount of $1,827.75. The husband secured an order of 'No Administration Necessary' as provided by Chapter 735, Florida Statutes 1941, F.S.A.

The bank refused to pay over the funds and suit was brought in the Civil Court of Record of Dade County alleging the salient facts and attaching a copy of the order of 'No Administration Necessary' to the declaration. A demurrer was overruled and pleas were filed denying that the estate was not indebted but alleging on the other hand that it was in fact indebted for funeral expenses of the decedent in the sum of $150. The pleas also alleged that order of 'No Administration Necessary' was unconstitutional. A demurrer to the pleas was sustained and final judgment was entered. On appeal to the Circuit Court the final judgment was affirmed. This is an appeal by certiorari to review the judgment of the Circuit Court.

What we said in Coral Gables First National Bank v. Hart, 20 So.2d 647, is equally applicable to and conclusive of the question of interpretation and constitutional validity of Chapter 735 Florida Statutes of 1941, F.S.A., raised in this case.

The only other question we are called on to adjudicate is whether or not funeral expenses of a married woman constitute an indebtedness against her estate and if so, can her debtor the bank in this case, challenge the County Judge's determination that her estate was not indebted.

Under the common law, the husband was responsible for his wife's funeral expenses. A majority of the jurisdictions in this country have approved the commonlaw rule through very respectable authority by statute and for other reasons approves the rule that a married woman's funeral expenses may be charged against her estate. See Hall v. Stewart, 135 Va. 384, 116 S.E. 469, 31 A.L.R. 1499, 1503, and Magrath v. Sheehan, 296 Mass. 263, 5 N.E.2d 547, 108 A.L.R. 1226, 1229, where the cases on both sides are collected. In Fletcher v. Rickey, 114 Fla. 563, 154 So. 147, this Court approved the majority rule on the theory that the common law was still in effect in this State on that point.

As affecting the point in the case at bar, the situation has changed materially. The Probate Act, F.S.A. § 731.01 et seq., was not applicable to Fletcher v. Rickey. We have held repeatedly in the beauty parlor cases and the free dealer acts that judgments may be imposed against a married woman and in the recent case of Taylor v. Dorsey, 19 So.2d 876, we upheld the constitutional validity of Chapter 21932, Acts of 1943, F.S.A. § 708.08, relating to the rights of married women. If all this can be accomplished without violating Article Eleven of the...