Dalton's Estate, In re
| Decision Date | 16 January 1968 |
| Docket Number | No. 67--170,67--170 |
| Citation | 206 So.2d 264 |
| Parties | In re ESTATE of Ann V. DALTON, Deceased. Nellie SIGLEY, Appellant, v. Joseph R. LILLAGORE and William A. Lane, Co-Executors of the Estate of Ann V. Dalton, Deceased, and the Dunspaugh-Dalton Foundation, Inc., Appellees. |
| Court | Florida District Court of Appeals |
Ralph & Anderson, Miami, Roy L. Struble, Miami Beach, for appellant.
Lane, French, Primm, Lane & Carrier, Miami, John J. Hunt, North Miami, Scott, McCarthy, Steel, Hector & Davis and Phillip Goldman, Miami, for Lillagore and Lane.
Sam Daniels, Miami, for Dunspaugh-Dalton.
Before PEARSON, BARKDULL and SWANN, JJ.
This appeal presents a question of whether the executors of an estate successfully invoked the shortened limitation provisions of Section 732.28, Florida Statutes, F.S.A., for revocation of probate despite their claimed failure to fully comply with the provisions of the statute. The appellant's petition for revocation of probate of a will and codicil was dismissed with prejudice and she has appealel.
It appears that the decedent's 'heirs at law' were nieces and nephews, the offspring of her five brothers and five sisters. The appellant, Nellie Sigley, is the daughter of the decedent's sister 'Jennie' and is admittedly an heir at law.
Ann V. Dalton, whose maiden name was Ann V. O'Donnell, died on January 12, 1963. Her last will and codicil was admitted to probate in Dade County, Florida on February 18, 1963.
The executors and their attorneys undertook an investigation to identify the heirs at law of the decedent so as to invoke the limitation provision for revocation of probate under Section 732.28, Florida Statutes, F.S.A. A letter from one of the executors, Joseph R. Lillagore, to an attorney for the co-executors, dated January 22, 1963, included a brief sketch of the family tree of the decedent in which it was indicated that there were possible descendents of the decedent's sister, 'Jenny'. On April 2 1963, an attorney for the executors wrote to a private investigating firm in Philadelphia, requesting information concerning the heirs of Ann Dalton, generally, and asking them to check into the matter of a story which persisted 'that there is a family by the name of Romick in Catasaqua, Pennsylvania, who are descendants of Jennie or Catherine.'
On April 10, 1963, prior to receiving a full investigative report of this matter, the executors filed a sworn statement for notice of probate under the terms of Section 732.28, Florida Statutes, F.S.A. This sworn statement asserted that 'diligent search (had) been made to ascertain the names * * * of * * * each heir at law * * *' (Brackets ours). It did not include the name or address of the appellant, Nellie Sigley, although she admittedly fell within the classification of 'heirs at law.' It appears that the investigators first made contact with appellant on April 15, 1963 and they made a full report of her status to the executors on May 20, 1963.
Subsequently, on June 7, 1963, after receiving the investigators' report, an 'Amended Sworn Statement for Notice of Probate' was filed in which Nellie Sigley's name and address appeared. This amended statement, however, was apparently misfiled and no notice was ever mailed to the parties named in it and no certificate of such mailing was filed by the county judge under the amended sworn statement.
On July 28, 1966, prior to the discharge of the personal representatives named in the will, the appellant filed her petition for revocation of probate of the will and codicil, pursuant to Section 732.30, Florida Statutes, F.S.A. This petition was subsequently amended and, upon the stipulation of the parties, the court heard evidence upon the various motions to dismiss. In granting a dismissal of the petition for revocation with prejudice, the county judge's order provided in part:
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The County Judge also found that the appellant was estopped to seek revocation of the will and that her claim was barred by laches.
We turn first to the question of whether the applicable period of limitation is the six months provided by Section 732.28, Florida Statutes, F.S.A.
Nellie Sigley was not listed in the original sworn statement and it is undisputed that no notice was mailed to her before or after the filing of the amended sworn statement in which her name was included. The executors argue, however, that to require more than a diligent search for heirs at law is to require the impossible. They argue further that the provision for general notice by publication is sufficient to cure any failure to give notice by mail so long as a diligent search and inquiry was made by them to list each heir at law. We do not so construe the statute.
Fla.Stat. § 732.28, F.S.A. is an optional alternative procedure, not a mandatory one. It is available only in cases where actual compliance is successfully carried out. § 732.28 provides, in pertinent part:
'(1) Upon the admission of a will to probate, the personal representative or any other interested party May, at his option, file in the office of the county judge A sworn statement containing the name and residence or post-office address of each legatee or devisee named in the will and of the surviving spouse and Each heir at law of the decedent.
'(3) Thereupon, the county judge shall cause to be published once a week for four consecutive weeks in a newspaper published in the county, four publications being sufficient, a notice addressed To all persons interested, in substantially the following form:
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'You are hereby commanded within six calendar months from the date of the first publication of this notice to appear in said court and show cause, if any you can, * * *' (All emphasis added.)
In construing the effect of this statute, the Supreme Court, in State ex rel. Ashby v. Haddock, Fla.1962, 149 So.2d 552, stated the following:
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'* * * Since, however, the latter procedure (732.28) is optional, the contrary time limit expressed in 732.30, allowing revocation 'at any time before final discharge', does under our view serve the reasonable purpose of delimiting the remedy in any instance where the Procedure for notice of probate is omitted or improperly executed.' (Brackets and emphasis ours)
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It further held that the statute 'clearly contemplates mailing of notice only to those parties...
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