Fields v. Fields

• Decision Date: 17 October 1939
• Citation: 140 Fla. 269,191 So. 512
• Parties: FIELDS v. FIELDS.
• Court: Florida Supreme Court

191 So. 512

140 Fla. 269

FIELDS v. FIELDS.

Florida Supreme Court, Division B.

October 17, 1939

Error to Circuit Court, Indian River County; Elwyn Thomas, Judge.

Action on promissory note by Julia E. Fields, a feme sole, against Jessie B. Fields, as administratrix of the estate of G. H Fields, deceased. To review a judgment for plaintiff, the defendant brings error.

Affirmed.

COUNSEL

Otis M. Cobb, Sherman N. Smith, and C. P. Diamond all of Vero Beach, for plaintiff in error.

Charles A. Mitchell and S. N. Smith, Jr., both of Vero Beach, and T B. Ellis, Jr., of Fort Pierce, for defendant in error.

OPINION

PER CURIAM.

Writ of error from the final judgment of the Circuit Court of the Ninth Judicial Circuit. Plaintiff in error is the administratrix of the estate of G. H. Fields, deceased. Defendant in error is the divorced wife of deceased, and claimant under the promissory note sued on in the lower court. The final decree of divorce between claimant and deceased was entered February 3, 1926. Pursuant to an agreement, deceased conveyed certain lands to his former wife, and on February 5, 1926, executed a note to her for $1,000, the settlement being in lieu of alimony, maintenance and support. The collection of said note, which has since been destroyed by fire, is the purpose of this suit.

Claimant filed claim for the note in the office of the County Judge of Indian River County, in accordance with Section 120, Probate Act of 1933, c. 16103, but failed to attach a copy of the note to the claim, and did not allege the destruction by fire. The claim being unpaid, claimant brought suit in the Circuit Court of the Ninth Circuit to collect said note, alleging, inter alia, that the note was under seal, and hence not barred by the Statute of Limitations.

At the trial, the attorney who represented Mrs. Fields, claimant, in her divorce action testified as to the form of notes he used in his practice, such forms being the same as those prepared and used by the Ft. Pierce Bank and Trust Company. Two employees of that bank testified as to the form of the notes used, by the bank both saying the notes had 'seal' on them. A copy of each form of note was introduced into evidence as Plaintiff's Exhibits 'F' and 'G'.

Miss Jewell Fields, daughter of deceased and Mrs. Fields, testified that she had heard several conversations between deceased and her mother, in which deceased admitted that the note had not yet been paid.

Claimant took the stand on her behalf, saying she had had the note, but that it had been burned and destroyed when her home in Sebastian was destroyed by fire. Defendant objected to all this testimony, and to the introduction of the two notes into evidence.

At the end of all testimony both parties moved for directed verdict. Trial Judge directed verdict for claimant in the sum of $1,200, and entered final judgment for that amount. Administratrix moved for a new trial. The motion being denied, writ of error was taken.

The first question presented for determination here is whether or not the claim filed against the estate of decedent, stating that decedent was indebted to claimant in a stated sum and that decedent executed a note to claimant for such sum, and that same is just, due and unpaid, is a sufficient statement and presentation of the claim under section 120 of the 1933 Probate Act to entitle claimant to maintain a suit against the estate on the note as a lost note, the note having been destroyed by fire prior to filing of the claim. The trial court answered this question in the affirmative, and there appears no error in that respect, inasmuch as the claim appears in regular order, and complies with the only mandatory provisions of Section 120, supra, that the claim '* * * shall be in writing and contain the place of residence and post office address of the claimant, * * * his agent or attorney and be filed in the office of the County Judge granting letters * * * within eight months from the time of the first publication of the notice to creditors * * *.'

Administratrix questions the ability of the divorced wife to hold the personal representative of the deceased's estate liable on such a note. The deceased gave the note and conveyed the property to claimant in lieu of alimony, maintenance and support. Of this there is no question. This Court in Gallemore v. Gallemore, 94 Fla. 516, 114 So. 371, 372, has said:

'By parity of reasoning according to the weight of authority, bona fide agreements relating to alimony or the adjustment of property rights between husband and wife, though in contemplation of divorce, will be upheld, if not directly conducive to the procurement of a divorce. Julier v. Julier, 62 Ohio St. 90, 56 N.E. 661, 78 Am.St.Rep. 697, notes; 11 Ann.Cas. 379, and cases cited; Ann.Cas.1915A, 811; 9 R.C.L. 256; Appleby v. Appleby, 100 Minn. 408, 111 N.W. 305, 10 Ann.Cas. 563, 117 Am.St.Rep. 709, 10 L.R.A. (N.S.) 590.'

The note here was certainly executed in furtherance of an agreement relative to the adjustment of property between the parties.

In Biscayne Trust Co. v. American Security & Trust Co., 57 App.D.C. 251, 20 F.2d 267, the administrator of the divorced wife's estate sued administrator of the husband's estate for past due alimony; held, recovery allowed for accrued alimony and interest. And in Kalben v. King, 166 Md. 632, 172 A. 80, 82, it is said:

'The weight of authority in this country is that a wife may recover accrued alimony against a deceased husband's estate to the date of his death, and it is generally done by bringing in his executor as a party to the proceedings for the sole purpose of enforcing the demand. 1 R.C.L. 953; 2 L.R.A. (N.S.) 242, note; Martin v. Thison, 153 Mich. 516, 116 N.W. 1013, 18 L.R.A. (N.S.) 257, 126 Am.St.Rep. 537; McIlroy v. McIlroy, 208 Mass. 458, 94 N.E. 696, Ann.Cas.1912A, 934; Gilbert v. Hayward, 37 R.I. 303, 92 A. 625; Van Ness v. Ransom, 215 N.Y. 557, 109 N.E. 593, L.R.A. 1916B, 852, Ann.Cas.1917A, 580.

Thus we see that alimony, in the strictest sense of the term, is collectible from the estate of decedent, and we are unable to find any authority holding that a note, given in lieu of alimony, is not collectible from the estate, nor can we find anything in Chapter 16780, Laws of Florida 1935, to limit the wife's remedy for collection of the note to a suit in Chancery.

Using the testimony of the wife's divorce attorney and that of the two bank employees as a foundation for the admission of the forms of the two notes used by the Ft. Pierce Bank and Trust Co., we can find no error in the ruling of the trial judge admitting the forms into evidence.

By proper objection and assignments of error, administratrix questions the admission of the testimony of Jewell Fields, daughter of claimant. Objections were made on the grounds that her testimony comes under the prohibition of section 4372, C.G.L., in that it is a 'transaction or communication' with deceased. In the case of Rich v. Hunter, Fla., 185 So. 141, 145, in construing the section the court said:

'Under the rules of the common law all persons who were interested in the event of a suit were disqualified from testifying therein, whether their adversaries were living or dead. The purpose of Sec. 4372 (2705), C.G.L., was to remove the common-law disability arising from interest, except where one of the parties to a...