Estate of Peterson, In re

• Decision Date: 13 July 1983
• Docket Number: No. 82-2219,82-2219
• Citation: 433 So.2d 1358
• Parties: In re ESTATE OF George PETERSON, Deceased. George PETERSON, III, as Personal Representative, Appellant, v. Drew N. BARRINGER and Judith M. Barringer, as Co-Personal Representatives of the Estate of Alberta Newcombe Peterson, Deceased, Appellees.
• Court: Florida District Court of Appeals

Page 1358

433 So.2d 1358

In re ESTATE OF George PETERSON, Deceased.

George PETERSON, III, as Personal Representative, Appellant, v. Drew N. BARRINGER and Judith M. Barringer, as Co-Personal

Representatives of the Estate of Alberta Newcombe

Peterson, Deceased, Appellees.

No. 82-2219.

District Court of Appeal of Florida,

Fourth District.

July 13, 1983.

Mary Copeland of Copeland & Chambliss, P.A., Fort Lauderdale, for appellant.

Rohan Kelley of Rohan Kelley, P.A., Fort Lauderdale, for appellees.

HERSEY, Judge.

This appeal from an order in the probate division denying a motion to strike an untimely claim filed against a decedent's estate presents the issue of whether one of the exceptions to the non-claims statute, Section 733.702, Florida Statutes (1981), preserves the claim involved in these probate proceedings.

George Peterson was appointed personal representative of his deceased wife's estate and in that fiduciary capacity failed to file the required estate tax returns.

Upon the subsequent death of George, the heirs and successor personal representatives of the wife's estate filed a claim in George's estate alleging liability in the amount of $35,000 as a result of George's breach of fiduciary duty in failing to file the estate tax returns. The claim was filed beyond the period of non-claims, but a motion to strike the claim was nonetheless denied, resulting in this appeal.

It is appellees' position that the claim in question falls within the trust or estoppel exception to the non-claims statute.

The "trust" exception refers to a situation where at the time of death the decedent held bare legal title to property, the equitable title or beneficial ownership having become vested in another who now claims the property adverse to the estate. Fisher v. Creamer, 332 So.2d 50 (Fla. 3d DCA), cert. dismissed, 336 So.2d 600 (Fla.1976) (interpreting predecessor statute); Stern v. Morris, 380 So.2d 1048 (Fla. 3d DCA 1980); Grossman v. Selewacz, 417 So.2d 728 (Fla. 4th DCA 1982). Obviously, this exception affords no comfort to appellees' position. Nothing in the record suggests the existence of a trust relationship or grounds to support the imposition of a trust.

The second exception, based upon estoppel, similarly has no application here. A possible basis for permitting such an exception, discussed by this court in North v. Culmer, 193 So.2d 701 (Fla. 4th DCA 1967), was disapproved in Rinker Materials Corp. v. Palmer First Nat'l Bank & Trust Co. of Sarasota, 361 So.2d 156, 159 (Fla.1978). Under the test established by Rinker there must, as a minimum, be some form of affirmative deception involved...