Estate of Hatcher, In re

• Decision Date: 25 October 1983
• Docket Number: No. 82-1906,82-1906
• Citation: 439 So.2d 977
• Parties: In re The Estate of Helena HATCHER, deceased. Barbara MESSER, Personal Representative of the Estate of Helena Hatcher, deceased, Appellant, v. William L. DODD, Jr., Lillian Dodd and Leo Catsonis, Appellees.
• Court: Florida District Court of Appeals

Page 977

439 So.2d 977

In re The Estate of Helena HATCHER, deceased.

Barbara MESSER, Personal Representative of the Estate of Helena Hatcher, deceased, Appellant, v. William L. DODD, Jr., Lillian Dodd and Leo Catsonis, Appellees.

No. 82-1906.

District Court of Appeal of Florida,

Third District.

Oct. 25, 1983.

Kenney, Boswell & Kaufman and Timothy H. Kenney, Palm Beach, for appellant.

William A. Daniel, Jr., Stuart, for appellees.

Before HENDRY, HUBBART and JORGENSON, JJ.

HENDRY, Judge.

This cause comes before the court following hearings by the trial court ostensibly to determine whether the decedent, Helena Hatcher, intended to change her domicile permanently from Florida to West Virginia. At issue are two wills, one executed in Florida (the "Miami will") which left the entire estate to decedent's granddaughter and a second, subsequent will executed in West Virginia (the "West Virginia will") which left $7500 to the granddaughter and the balance of the estate to decedent's brother and sister-in-law. The trial court, in its order, findings of fact, and conclusions of law stated that:

The issue which was tried by this Court was confined solely to whether, on July 14, 1981, Mrs. Hatcher's domicile was the State of West Virginia when she executed her West Virginia will.

The next paragraph stated:

The initial burden of proof was placed upon Petitioners by the Court and Petitioners proved that Mrs. Hatcher executed a subsequent will which was valid under both Florida and West Virginia law and which will expressly revoked her prior Florida Will.

Because we find that the trial court's order was overbroad in light of the issues raised by the pleadings as well as the enunciated purpose of the hearings, we affirm the trial court's determination of the decedent's domicile, but we remand for further hearings on the substantive validity of the West Virginia will.

Mrs. Hatcher died of cancer on July 20, 1981, in Charleston, West Virginia. Until July 12, she had been a patient at Jackson Memorial Hospital. She was released on that date because her disease had progressed to its final stage and death was imminent. That same day, decedent left Miami, where she had been a long time resident, accompanied by Lillian Dodd, her sister-in-law. On July 13, appellee William Dodd, decedent's brother, contacted appellee Leo Catsonis, a Charleston attorney, about writing a new will for decedent. Mr. Catsonis went to the Dodds' home that evening and spoke with the decedent about the disposition of her property. Also that same evening, Dr. Alfred Pfister went to the Dodds' home at William Dodd's request, to meet Mrs. Hatcher and to examine her. On July 14, the decedent executed her West Virginia will which expressly revoked the Miami will, and she also executed a general power of attorney in favor of William Dodd. On July 19, the decedent was admitted to Charleston Medical Center in a coma. She died early the next morning. Both wills were immediately filed for probate in their respective locales.

Appellees filed a caveat with the trial court in Miami pursuant to section 731.110, Florida Statutes (1981), and a petition for revocation of probate on the basis that a valid subsequent will had been executed by the decedent. Both the petition and its supporting memorandum of law stated that in accordance with section 732.502(2), Florida Statutes (1981), the Florida trial court lacked proper jurisdiction and venue to determine whether the subsequent will was valid and that a West Virginia court should be allowed to determine whether the decedent had formed a present intention to make West Virginia her domicile when she executed the West Virginia will. Hearings were held on the petition during the course of which the judge and both attorneys for the parties made statements reflecting the fact that the hearing was concerned solely with the issue of domicile. The final order found that the decedent was a West Virginia domiciliary when she executed the West Virginia will and that said will was valid.

At the outset it must be stated that the trial court had jurisdiction to rule on the validity of the West Virginia will because all of the decedent's property remained located in Dade County, Florida. Hanson v. Denckla, 357 U.S. 235, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958); In Re Estate of Roberg, 396 So.2d 235 (Fla. 2d DCA 1981); Biederman v. Cheatham, 161 So.2d 538 (Fla. 2d DCA 1964). Additionally, in In Re Estate of Swanson, 397 So.2d 465 (Fla. 2d DCA 1981), the court there discussed whether a Florida court had jurisdiction to rule on the substantive validity of a will executed in another state. The court found that section 732.502(2), Florida Statutes (1981) is concerned with procedural validity only; that is, whether there is compliance with the formal procedural elements of execution. Substantive considerations, such as mental capacity or undue influence, are not dealt with by the statute. When property ¹ is devised, the common law dictates that the validity of the will is to be determined according to the law of the situs of the property. The court went on to hold that the common law gives persons challenging a foreign will the right to attack that will in a Florida court, on substantive grounds, based on their interest in property located in Florida. Id. at 466.

Subject matter jurisdiction--the power of the court to adjudicate the class of cases to which the particular case belongs--is inchoate; the jurisdiction and power of a court remain at rest until called into action by some suitor. The action of the court must be called into exercise by pleading and process. Florida Power and Light Co. v. Canal Authority, 423 So.2d 421, 424 (Fla. 5th DCA 1982). Florida law clearly holds that a trial court lacks jurisdiction to hear and to determine matters which are not the subject of proper pleading ² and notice. Bartolucci v. McKay, 428 So.2d 378 (Fla. 5th DCA 1983); Fine v. Fine, 400 So.2d 1254 (Fla. 5th DCA 1981); Defreitas v. Defreitas, 398 So.2d 991 (Fla. 4th DCA 1981). In short:

If a court should render a judgment in a case where it had jurisdiction of the parties, upon a matter entirely outside of the issues made, it would, of necessity, be arbitrary and unjust as being outside the jurisdiction of the subject-matter of the particular case, and such judgment would be void and would not withstand a collateral attack, for upon such matter a presumption would arise that the parties had had no opportunity to be heard.

Florida Power and Light v. Canal Authority, supra, at 424-425, quoting Lovett v. Lovett, 93 Fla. 611, 112 So. 768 (1927); see also Bartolucci v. McKay, supra, at 379.

In the instant case, the petition did not ask the court to determine the validity of the West Virginia will. The hearing was to determine whether the decedent had formed a present intention to leave Florida and to make West Virginia her domicile. It was clearly erroneous for the trial court to rule on the validity of the West Virginia will without proper notice and pleadings. Additionally, by its action, the trial court foreclosed appellant's opportunity to contest the West Virginia will on the substantive grounds of mental capacity and undue influence and relieved the appellees of having to rebut the presumption of undue influence. Cripe v. Atlantic First National Bank of Daytona Beach, 422 So.2d 820 (Fla.1982); In Re Estate of Carpenter, 253 So.2d 697 (Fla.1971); Evers v. Zelyk, 422 So.2d 925 (Fla. 2d DCA 1982); In Re Estate of Lamberson, 407 So.2d 358 (Fla. 5th DCA 1981); Meth v. Sparaga, 406 So.2d 97 (Fla. 3d DCA 1981). We find that the trial court erred in holding the West Virginia will valid and we remand this cause to the trial court for further hearings on the substantive validity of the will.

Appellant's second issue on appeal, whether the testimony of Leo Catsonis should have been...