Dalton's Estate, In re

• Decision Date: 09 March 1971
• Docket Number: No. 69--1019,69--1019
• Citation: 246 So.2d 612
• Parties: In re ESTATE of Ann V. DALTON, Deceased.
• Court: Florida District Court of Appeals

Page 612

246 So.2d 612

In re ESTATE of Ann V. DALTON, Deceased.

No. 69--1019.

District Court of Appeal of Florida, Third District.

March 9, 1971.

Rehearing Denied April 30, 1971.

Watson & Watson, Horton & Schwartz, Ralph & Anderson, Sams, Anderson, Alper & Spencer, Miami, Roy L. Struble, Miami Beach, for appellants.

Dixon, Bradford, Williams, McKay & Kimbrell, Sam Daniels, Lane, French, Primm, Lane & Carrier, Podhurst & Orseck, Miami, and John J. Hunt, N. Miami, for appellees.

Before PEARSON, C.J., and HENDRY and SWANN, JJ.

PER CURIAM.

This appeal is from a final order that denied various petitions for revocation of probate filed by several nieces and nephews of Ann V. Dalton, deceased. A final evidentiary hearing was held before the rendition of the final order. This cause was here before on different questions. See In Re Estate of Dalton, Fla.App.1968, 206 So.2d 264.

STANDING

The 'standing' of appellants to take the residuary portion of the estate of Ann Dalton as 'heirs at law' under an intestate estate has been raised in this appeal. Appellants can receive the residuary portion of this estate only if the residuary bequest in the codicil of Ann Dalton is invalid or fails. In that event the residuary estate would pass as if Ann Dalton had died intestate and appellants would then be entitled to take as 'heirs at law'. The appellants contend the residuary bequest in the codicil may be void if procured by the undue influence of William A. Lane, Sr., and that the remainder of the codicil not procured by undue influence may still be valid. See § 731.08, Fla.Stat., F.S.A.

If we examine this point we need to consider only the clause of the codicil which bequeaths the residuary estate to determine if appellants are entitled to take as 'heirs at law' of Ann Dalton under the laws of intestacy if the residuary bequest in the codicil is invalid or fails. Cf. Hopkins v. McClure, Fla.1950, 45 So.2d 656. It is our opinion that a determination of this appeal on the merits is the better solution to this problem. Accordingly, we do not reach the issue of 'standing' but observe that there may have been no showing that the residuary estate bequeathed by the codicil of Ann Dalton could pass to these nieces and nephews (appellants) under the laws of intestacy as there was no showing that the residuary estate could or would fail to pass under and in accordance with the terms of the codicil. Cf. Liles Package Store, Inc. v. Walgreen Co., Fla.App.1970, 239 So.2d 271; Wellman v. Carter, 286 Mass. 237, 190 N.E. 493 (1934); In Re Carothers' Estate, 300 Pa. 185, 150 A. 585 (1930); 3 Page, Wills § 26.52 and 57 Am.Jur. Wills § 994.

JURISDICTION

At the threshold of this appeal, we are presented with a question which the appellants say is jurisdictional. The point is presented by appellants as their last point on appeal and is as follows:

'Whether the court erred in denying, on procedural grounds and without trial, the opponents' petition to dismiss the cause as an original proceeding for lack of jurisdiction over the subject matter.'

A brief statement of the probate history of this estate is, we think, pertinent here.

Ann V. Dalton died on Jan. 12, 1963 in Miami, Florida. Her co-executors invoked the jurisdiction of the County Judges Court in and for Dade County, Florida by filing a petition for probate of will and alleged that at the time of her death she was domiciled in Dade County, Florida. On February 18, 1963, the will and codicil were admitted to probate. When these appellants filed their petitions to revoke in 1966 and 1967 they did not suggest that there was any question as to Mrs. Dalton's residence. They affirmatively alleged the court's jurisdiction by declaring that the court should exercise its jurisdiction to hold the will and codicil invalid for want of testamentary capacity and undue influence.

For over three years, these parties litigated in the trial court and in this court and then on May 29, 1969, four days before trial on the merits was to begin appellants filed a 'petition for dismissal of proceedings and/or revocation of probate or for order that proceedings herein shall proceed as ancillary administration of the estate.' The prayer of the petition was in the alternative. The court was asked to either dismiss the proceeding or 'determine that the proceeding shall continue only as an ancillary administration. The trial court ruled that because the appellants had not raised the issue at the time of appearance and had submitted themselves to the jurisdiction of the court by their petitions for affirmative relief, the petition to contest the domicile of the deceased would be denied.

We do not question the general rule that jurisdiction of the subject matter may ordinarily be raised at any stage of a proceeding. See Bohlinger v. Higginbotham, Fla.1954, 70 So.2d 911; and 8 Fla.Jur. Courts § 117. We find, however, that this rule has been limited in cases where the attack on jurisdiction is not upon the power of the court to adjudicate the class of cases to which the particular case belongs. See Wells v. Menn, 154 Fla. 173, 17 So.2d 217 (1944). Where, as in the present case, the appellants have prayed for special relief; participated in the litigation regarding that relief for a number of years, and accepted the benefits of appellate court rulings, the appellants may be held upon an application of equitable principles, ¹ to have waived the right to challenge the fact of domicile as distinguished from the general power of the court to adjudicate the class of cases to which the subject matter of the case belongs. Cf. In Re Estate of Rougeron, 17 N.Y.2d 264, 270 N.Y.S.2d 578, 217 N.E.2d 639 (1966). We so hold.

MERITS

Going to the merits the appellants argue that the residuary bequest in the codicil of Ann Dalton was invalid because of the undue influence of William A. Lane, Sr. They assert this was established by a presumption of law which was not rebutted. The County Judge found there was no presumption of undue influence here as a matter of law and that even if such presumption were to exist it had been fully overcome by clear and convincing credible evidence.

We note there was an admission below of a confidential relationship as required by law, between Ann Dalton and William A. Lane, Sr., hereinafter called Lane, Sr.

The question of the operative effect of a presumption of law in establishing undue influence where a confidential relationship and active participation in procurement exists and where the formal execution and attestation of a will have been established has been thoroughly and completely discussed by Judge Owen in In Re Estate of Carpenter, Fla.App.1970, 239 So.2d 506.

The record on appeal shows that Ann Dalton was a strong willed woman, who admittedly had testamentary capacity; that she was fully informed as to the changes which would be made in her prior will by the bequest of the residuary estate in her codicil; that she went over the codicil paragraph by paragraph; that an attorney called her attention to the fact that she was making a major change between the bequest of her residuary estate in the prior will and the bequest in the codicil in that a substantial portion of her estate would not go to her niece; that she said she 'wanted to give her residuary...