Feldman's Estate, In re, 174

• Court: Court of Appeal of Florida (US)
• Citation: 109 So.2d 407
• Docket Number: No. 174,174
• Parties: In re the ESTATE of Joseph FELDMAN, Deceased. E. J. FIELDMAN and Balfoura Gordon, heirs and legatees under the will of their father Joseph Feldman, deceased, Appellants, v. Sadie FELDMAN, widow of Joseph Feldman, deceased, and Max Ganz, Executor of said estate, Appellees.
• Decision Date: 06 February 1959

Page 407

109 So.2d 407 In re the ESTATE of Joseph FELDMAN, Deceased.
E. J. FIELDMAN and Balfoura Gordon, heirs and legatees under the will of their father Joseph Feldman, deceased, Appellants,
v.
Sadie FELDMAN, widow of Joseph Feldman, deceased, and Max Ganz, Executor of said estate, Appellees. No. 174. District Court of Appeal of Florida, Second District. Feb. 6, 1959.
Rehearing Denied March 19, 1959.

J. Field Wardlaw, of Wardlaw & Stewart, West Palm Beach, for appellants.

Page 408

Charles H. Warwick, Jr., of Warwick, Paul & Warwick, West Palm Beach, for appellees.

SHANNON, Judge.

This is an appeal by two of the heirs and legatees under the will of their father, Joseph Feldman, deceased, against the widow and the executor of said estate.

The points involved are five in number and raise in substance the following questions:

1. Whether the order of the county judge entered October 5, 1956, dealing with the agreement between the parties rendered the question res judicata, and whether the court's subsequent order dated July 23, 1957, materially changing the terms of the first order is therefore null and void;

2. Whether the court's order of July 23, 1957, in attempting to grant specific performance of the alleged agreement, violates the exclusive jurisdiction over controversies involving the title of real estate vested in circuit courts by the Constitution of the State of Florida;

3. Whether the court erred in attempting to exercise jurisdiction over, and to compel a conveyance of, homestead property;

4. Whether the alleged agreement of February 14, 1956, is too vague, indefinite and uncertain to meet the legal requirements of the remedy of specific performance; and

5. Whether the court erred, in the supplemental order of September 6, 1957, in denying and holding in abeyance payment of judgments against the estate held by the appellants.

We have set forth the points of law raised by appellants, but in deciding this case, we think that we can obviate several of the various questions of law advanced.

Joseph Feldman, deceased, left a will which, after making quite a few specific bequests, substantially follows the laws of descent in the State of Florida.

The appellee-widow elected to take dower before there was any agreement between her and the appellants. Thereafter she entered into an agreement with the appellants for the purpose of settling the estate. It was agreed in part as follows:

'1. The party of the first is to receive her dower rights in and to all of the assets of the estate including all mortgages, loans, accounts receivable, cash in the bank or banks, cash in the vault in the name of Balfoura Gordon, and vaults maintained in the name of the deceased, Joseph Feldman, collections, and stocks and bonds, all in accordance with the schedules now filed with the Probate Court of Palm Beach County, Florida, U. S. A., * * *.'

The agreement then provides for the widow to receive certain specific assets of the estate, but unfortunately, the agreement is silent as to whether these would be part of her dower or in addition to her dower. There are also some ambiguities in particular paragraphs of the agreement; for instance, the second and third paragraphs read as follows:

'2. It is further agreed between the parties that the Hewson Mortgage in the sum of Five Thousand ($5,000.00) Dollars is to be turned over to be the sole property of the party of the first part.

'3. The party of the first part is to receive for her sole and exclusive use the homestead at 160 Seabreeze Avenue, in the City of Palm Beach, Florida, U. S. A., together with the contents therein, excepting for the ring, the painting by Max Band, and the painting by Smith, the sterling silver bearing the engraved initial 'F', the books, Persian rugs and objects of are which shall all be distributed in accordance with the terms of the original Will.' (emphasis added)

Page 409

The fourth paragraph is also somewhat uncertain as to the title which the widow is to receive in a certain lot. The fourth paragraph reads as follows:

'4. The party of the first part is to receive for her sole and exclusive use and ownership the lot in Stotesbury Park, Palm Beach, Florida.' (emphasis added)

After she had signed this agreement she filed her selection of dower, and in this pleading eliminated certain items included in the agreement for the purpose of computing dower, contemplating that these items would be given to her absolutely under the said agreement. The court below entered an order regarding assignment of dower October 5, 1956, which reads in part:

'The court finds that there is uncertainty, lack of agreement and dispute between the parties as to the meaning of the agreement of February 14, 1956; that the same is not binding upon the executor. The court finds, therefore, that the assignment of dower to the widow must be made under and pursuant to the statute and the rights of all the parties in interest must be determined according to the will and to law, any provision of said agreement of February 14, 1956, to the contrary notwithstanding.

'It Is Ordered, Adjudged and Decreed:

'1. The assignment of dower to the widow shall be made under and pursuant to the statute and the rights of all the parties in interest shall be determined according to the will and to law, any provision of said agreement of February 14, 1956, to the contrary notwithstanding.'

Thereafter, on January 30, 1957, the lower court entered judgment in dower based on an assignment put of the entire assets of the estate, excluding the homestead, and including all other items which were covered by the agreement between the parties, pursuant to the order of October 5, 1956, quoted above.

Immediately after the entry of the judgment in dower the widow submitted a pleading styled 'Answer of Sadie Feldman to executor's petition for distribution,' in which she alleged that the agreement was for final distribution after determination of her dower, and prayed for distribution in accordance with the terms of the agreement. The judge, still on the same day, entered an order staying those portions of the judgment in dower in conflict with the agreement, pending a consideration of the widow's request. Appellants moved to rescind this stay order, and this motion, together with others pending, and the widow's 'answer to executor's petition' were called up for hearing by the executor on July 2, 1957. This hearing culminated in the order appealed from, which found the 'agreement, duly executed, providing for a settlement between the said parties after the determination of the widow's dower,' and therefore ordered that:

'* * * the Motion of E. J. Fieldman and Balfoura Gordon to rescind Stay Order heretofore entered by this Court, be and the same is hereby denied; it is further

'Ordered that Max Ganz, Executor herein, convey Lot 10, Stotesbury Park, a...