Flagler v. Flagler
| Decision Date | 17 April 1957 |
| Citation | 94 So.2d 592 |
| Parties | Nellie Dregne FLAGLER, Appellant, v. Harold G. FLAGLER, Appellee. |
| Court | Florida Supreme Court |
Miller, Hewitt & Cone, West Palm Beach, for appellant.
Burns, Middleton, Rogers & Farrell, West Palm Beach, for appellee.
Harold Flagler secured a divorce from Nellie Flagler in January, 1949, obtaining service on her by publication. At the time of the divorce Nellie Flagler was alleged to be a resident of Wisconsin. Also, at the time, she was pregnant and was delivered of a female child on September 4, 1949. On November 19, 1949, Harold Flagler executed his will in which he made no reference to the minor child or to his former wife, but left the bulk of his estate to his then wife, Juanita Flagler. In January of 1950 Nellie Flagler petitioned the court to have the divorce decree set aside and to compel Harold Flagler to support the child. In the latter proceeding Harold denied the paternity of the child and objected to any allowance for the child's support. The court denied Nellie's petition to set aside the divorce, but held that Harold did not overcome the legal presumption that he was the father of the child. Harold was ordered to pay $300.00 per month for the support of the child. He made all payments until his death on January 6, 1955. Juanita Flagler has been duly appointed as administratrix of Harold's estate in Illinois and is now the ancillary executrix in Florida of Harold's last will and testament and of his estate, which is value in excess of $400,000.00.
Thereafter, Nellie Flagler, claiming that neither she nor the minor child have any funds whatever, petitioned the lower court to substitute Juanita Flagler, as ancillary executrix, for Harold Flagler as the obligor under the support decree, and for a decree requiring the ancillary executrix to continue to make payments for the support of the child until the child reaches her majority. The lower court ruled against Nellie Flagler and followed an earlier decision of this court in the case of Guinta v. Lo Re, 159 Fla. 488, 31 So.2d 704, holding that the obligation of the father to support the minor child terminated upon the death of the father.
Nellie Flagler has appealed, asserting that helpless minor children should be given the full protection of equity courts and that, to hold otherwise in this instance, would create manifest social injustice and cast the child upon public charity rather than requiring the estate of the father to support the child. Appellant also urges that the case of Guinta v. Lo Re, supra, turned largely on a procedural point and that such case should be either distinguished to overruled.
We readily agree that minors in divorce cases are wards of the court and should receive every protection consistent with the law. But we cannot agree that courts of equity have any right or power under the law of Florida to issue such order it considers to be in the best interest of 'social justice' at the particular moment without regard to established law. This court has no authority to change the law simply because the law seems to us to be inadequate in some particular case. The right of a parent to disinherit his children seems to be firmly rooted in our law, subject only to the provisions of the Probate Act or such other laws as the legislature may enact.
This court does not necessarily prefer to protect the father's power of testamentary disposition rather than the welfare of the child, but the court does feel that only the legislature has the authority to enact laws dealing with this problem. It is significant that at the next session of the legislature following our decision in Guinta v. Lo Re, supra, Section 733.20, Florida Statutes, was amended to provide for the support of any dependent minor child from the estate of a parent dying testate, when there is no legally responsible surviving natural or adoptive parent, such amendment being 'designed to afford reasonable protection to any dependent minor child who has been excluded from the provisions of the parents' will under circumstances which deprive it of an effective legal substitute for the continuing obligation of the parent, while living, for support and maintenance during the period of its minority.' Chapter 25274, Laws of Florida, Acts of 1949, § 733.20(j), Florida Statutes 1955, F.S.A. Apparently it was not the intention of the legislature to place a dependent minor child in whose favor a support decree was in existence at the time of a parent's death in a preferred position over a dependent minor child not having the benefit of a support decree.
Lacking authority of law to hold that the ancillary executrix may be compelled to carry out the terms of the support decree under the facts and circumstances hereinabove outlined, we can do nothing but affirm the lower court.
Affirmed.
In 1949 Harold G. Flagler and Nellie Dregne Flagler were divorced and subsequently, in 1952, a decree was entered by which Harold G. Flagler was required to pay his former wife $300 each month for the support of the infant daughter of the parties. About six years after the divorce the father died leaving a large estate. Meanwhile he had married Juanita Flagler who is now ancillary executrix. Neither the mother nor the child was a beneficiary and it is claimed that both are without funds.
The appellant undertook to have the ancillary executrix substituted for the father as obligor under the support decree and her effort was unavailing. Upon her petition for such relief the chancellor issued an order commanding the ancillary executrix to show cause why the substitution should not be made, but upon reconsidering the matter on the answer containing a motion to quash the rule was discharged.
The motion was based on the ground that the claim on behalf of the child terminated with the father's death; it was granted on the ground that the question was resolved by the decision in Guinta v. Lo Re, 159 Fla. 448, 31 So.2d 704.
The problem is the propriety of the ruling that the ancillary executrix could not be made amenable to the decree against the testator.
Before considering the immediate question, a brief chronology of the relevant events and proceedings ending in the order under review should be given. The appellant and the testator were divorced 20 April 1949. At that time the appellant was pregnant and her child was born 4 September 1949. No provision was made in the...
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