First Nat. Bank of Miami v. Bobcik

• Decision Date: 10 August 1961
• Docket Number: No. 60-685,60-685
• Citation: First Nat. Bank of Miami v. Bobcik, 132 So.2d 299 (Fla. App. 1961)
• Parties: FIRST NATIONAL BANK OF MIAMI, as Trustee, and Homestead Hospital, Appellants, v. Marian BOBCICK, Appellee.
• Court: Florida District Court of Appeals

Page 299

132 So.2d 299

FIRST NATIONAL BANK OF MIAMI, as Trustee, and Homestead Hospital, Appellants, v. Marian BOBCICK, Appellee.

No. 60-685.

District Court of Appeal of Florida, Third District.

Aug. 10, 1961.

Scott, McCarthy, Preston, Steel & Gilleland, Miami, and Goehring, McWhinney & Grubbs, Pittsburgh, Pa., for appellants.

Daniel Sepler, Hialeah, Redfearn, Ferrell & Simon, Miami, for appellee.

Before PEARSON, TILLMAN, C. J., and HORTON and CARROLL, JJ.

CARROLL, CHAS., Judge.

The question presented by this appeal is whether one who is adopted after the death of a testator by an adopter who also dies, may take under a will as being a living descendant of the adopter. The factual background against which the arguments are projected is sufficiently presented by the final decree, which was as follows: 'This cause came on for final hearing upon the complaint of the plaintiff, the answer of the defendant, The First National Bank of Miami, as Trustee, the answer of the intervener, Homestead Hospital, of Homestead, Pennsylvania, and the evidence, and the court having before it the original court files of this court in causes bearing chancery numbers 58C-5517 and 60C-4292, respectively, and the court having considered the record in said cases and being otherwise fully advised, it is

'Considered, Ordered, Adjudged and Decreed as follows:

'1. The plaintiff, Marian Bobcik, is the adopted daughter of Joseph Gordon Cooper and his wife, Margaret Cooper, by virtue of an order of adoption entered in this court on the 11th day of July, 1958, in chancery case No. 58C-5517, and as such the plaintiff was and is the child and legal heir of Joseph Gordon Cooper and his wife, Margaret Cooper, her adoptive parents, and entitled to all rights and privileges and subject to all obligations of a child born to such adopters in lawful wedlock, and under the laws of Florida Marian Bobcik was and is a lineal descendant of Joseph Cooper, deceased. Joseph Cooper was the same person as Joseph Gordon Cooper.

'2. Upon the death of Sarah Ellen Oursler, the defendant, The First National Bank of Miami, took into its possession, as trustee, 25% of all the rest, residue, and remainder of the estate of the said Sarah Ellen Oursler, designated as the 'Edna Cooper Fund' and paid the net income therefrom in accordance with the terms of the will of Sarah Ellen Oursler to Edna Cooper, the siter-in-law of Sarah Ellen Oursler, and upon the death of Edna Cooper the said defendant then paid the net income from said 'Edna Cooper Fund' to Joseph Gordon Cooper, the son of Edna Cooper and the adoptive father of the plaintiff, Marian Bobcik, until the death of Joseph Gordon Cooper on November 12, 1959. Since his death the said The First National Bank of Miami has held and now holds all of the principal assets of said 'Edna Cooper Fund' and the accumulations and increases thereto, notwithstanding the demand made by the plaintiff to pay over and deliver to her all of said trust assets in said trust as Joseph Cooper's living descendant.

'3. In Article IV-B of the will of said Sarah Ellen Oursler it is provided that:

"Upon the death of the survivor of Joseph Cooper, said Edna Cooper and myself the then principal of the 'Edna Cooper Fund' shall be paid over and delivered per stirpes to Joseph Cooper's then living descendants, if any, [and if none * * * said fund shall be retained by my Trustee and the entire net income therefrom paid to the Homestead Hospital, of Homestead, Pennsylvania, in perpetuity."]

which provision, in the light of all provisions of said will, requires all of the principal of the said 'Edna Cooper Fund' to be paid over and delivered to the plaintiff, Marian Bobcik, upon the death of the said Joseph Cooper on November 12, 1959, as the said Joseph Cooper's then living descendant.

'4. The defendant, The First National Bank of Miami, as Trustee, shall...