Forbes v. Burket

• Decision Date: 05 January 1966
• Docket Number: No. 5506,5506
• Citation: 181 So.2d 682
• Parties: Peter Craig FORBES, Appellant, v. Juhn F. BURKET, Jr., and Palmer First National Bank & Trust Company of Sarasota, as Executors under the Last Will and Testament of Laura Hately Forbes, deceased, et al., Appellees.
• Court: Florida District Court of Appeals

Page 682

181 So.2d 682

Peter Craig FORBES, Appellant, v. Juhn F. BURKET, Jr., and Palmer First National Bank & Trust Company of Sarasota, as Executors under the Last Will and Testament of Laura Hately Forbes, deceased, et al., Appellees.

No. 5506.

District Court of Appeal of Florida, Second District.

Jan. 5, 1966.

Rehearing Denied Jan. 28, 1966.

E. F. P. Brigham and Peter C. Forbes, of Brigham, Smith & Brigham, Miami, for appellant.

M. A. Braswell, of Braswell & Brown, Venice, Francis C. Dart, of Dart, Bell & Dickinson, David B. Bowman, of Burket, Smith & Bowman, Sarasota, and T. Minton Baughman, Ft. Lauderdale, for appellees.

ALLEN, Chief Judge.

This is an appeal by the plaintiff, Peter Craig Forbes, of an order dismissing with prejudice his complaint seeking a declaration of his rights under the Will of his grandmother, Laura Hately Forbes .

The condensation of the facts alleged in the plaintiff's complaint are as follows: The deceased, Mrs. Forbes, executed a Will on February 10, 1953, devising her home, which was located adjacent to the defendant-hospital to the plaintiff. The defendants, Gordon and Sumner Forbes, were named as residuary legatees. On June 9, 1958, the deceased executed a codicil to her 1953 Will, and in said codicil reaffirmed her specific devise of the home to the plaintiff. In November of 1958, the deceased, who was then 81 years old, was adjudicated an incompetent, and her brother, W. Gordon Hately, was appointed as the guardian of her person and property. In April of 1963, W. Gordon Hately having died, the defendant-Palmer First National Bank & Trust Company was named guardian. In June of 1959, W. Gordon Hately, as guardian, obtained an order from the County Judge authorizing the sale of her home to the defendant-hospital for the sum of $12,000. The hospital purchased the property for expansion purposes. In his petition for Order Authorizing Sale, the guardian set forth that:

'* * * the incompetent is failing quite rapidly both mentally and physically, and Petitioner [guardian] deems it in the best interest of said incompetent to place her in a nursing home * * *'

and that:

'* * * in view of these conditions, Petitioner deems it in the best interests of the guardianship estate to sell the above described real estate [ward's home] * * *.'

Simultaneously with the sale of the house to the defendant-hospital, her guardian made a cash gift of $2,500 to said hospital. An additional cash gift of $1,100 was given to the defendant-hospital at a later date. Authorization was obtained from the County Judge to make such gifts by the guardian. In the guardian's petition he stated that:

'* * * the guardianship estate has a large annual income of approximately SEVENTY THOUSAND ($70,000.00) DOLLARS per year before taxes and administrative expenses, and that it is the desire of the guardianship estate to give a tax-free charitable gift to the South Sarasota County Memorial Hospital Association, Inc., a non-profit corporation organized under the laws of Florida. Petitioner further shows to the Court that prior to her incompetency, Petitioner's ward was in the habit of making many and sizeable charitable gifts and Petitioner is of the opinion that if the ward were competent at this time, she would approve of the making of such gift. * * *'

Mrs. Forbes died without having ever regained her competency. When her Will was admitted to probate, the plaintiff then learned that he had been devised the home, and that the same had been sold to the defendant-hospital.

The plaintiff then filed the instant suit seeking a declaratory decree as to his rights under the Will of Mrs. Forbes. The plaintiff alleged that 'the sale of said home property was a positive interference with the dispositive intention of the testatrix to devise the home property to the plaintiff,' which was expressed in her Will and codicil. The plaintiff claimed that the County Judge was 'without jurisdiction to approve the sale of plaintiff's devise to the defendant hospital, and to authorize the gifts because there was no statutory ground alleged or found to exist to justify the sale or the gifts.' Moreover, the plaintiff claimed that if the sale of the home was valid, it did not adeem his devise.

The defendants filed motions to dismiss for failure to state a cause of action, and failure to join indispensable parties, to-wit: The estate of the deceased guardian and the surety on his bond. The motions to dismiss were granted with prejudice, the plaintiff having advised the court that he was unable to amend. The trial judge stated at the hearings on the motions that, 'I can't question the validity of the Order of the County Judge in this connection,' and that the plaintiff's 'action can not be substituted for that which was available to you in the way of an appeal.' He further held that, 'Apparently the law of this State bearing upon this subject is [the] Common Law as it existed prior to July 4, 1776, which was to the effect that an ademption would occur under these circumstances.'

The appellant-plaintiff contends that the sale of the property was void because the jurisdiction of the County Judge does not appear on the face of the record, and that the reason for allowing the sale--for the best interests of the guardianship estate--was not a valid reason under § 745.05, F.S.A. Alternatively, the plaintiff contends that, assuming the sale was valid, the devise was not adeemed by said sale and that he is entitled to the unused proceeds received from the sale. The plaintiff further maintains that the guardian had no authority to make the cash gifts to the hospital, and that the gifts should be returned to the estate of the deceased-ward. Lastly, the plaintiff asserts his remedy was not by appeal of the order allowing the sale, simply because he was not a party to the action, and that under the circumstances his complaint for declaratory decree was a proper remedy.

Several appellees filed separate briefs in response to the plaintiff's-appellant's brief. The appellees assert that the plaintiff may not collaterally attack the orders of the County Judge authorizing the sale of the property in question, and that the plaintiff may not maintain the present action because the Orders of the County Judge do not come within the purview of § 87.02, Fla.Stats., authorizing suits for declaratory relief. As to the cash gifts to the hospital, the appellee-hospital contends the plaintiff's remedy, if any, is against the estate of the deceased guardian and his surety on the guardian's bond. The appellee-hospital did not argue the point as to whether or not the devise to the appellant adeemed. The appellees, Gordon and Sumner Forbes, legatees under the deceased's Will, contend that the devise adeemed when the property was sold to the hospital. They argue that 'the 'identity' rule [as opposed to the 'intention' rule] is the majority rule in America and, since prior to 1776, also the majority rule in the English common law; this is accordingly the law in Florida.' The appellee, Palmer First National Bank, trustee and guardian of the deceased's estate contends that a suit for a declaratory decree could be maintained to determine the plaintiff's right but could not be maintained to collaterally attack the prior orders of the County Judge, and that on this ground the order dismissing the complaint was proper. The appellee-bank states that the Circuit Judge at no time ruled on the question of whether a declaratory decree was the proper form of action to determine the question of ademption. The appellee-bank has taken a neutral position on the ademption problem.

We are of the view that the County Judge's approval of the sale of the home of the deceased testatrix and the two gifts to the hospital is valid. The County Judge had jurisdiction and if his decision was erroneous in the giving of the three orders set forth in the plaintiff's action for declaratory decree, the declaratory act cannot be used to collaterally attack these orders, in effect as a substitute for an appeal.

However, the lower court erred in dismissing the complaint on the ground that it did not state a cause of action as the appellant, Peter Craig Forbes, stated in his complaint:

'* * * that, on the contrary, the Defendant Hospital claimed that the Court did have jurisdiction to approve the sale of said home property of the testatrix to it, and that said gifts of $2,500.00 and $1,100.00 respectively are valid gifts; further, Plaintiff claims that if the Court should decree that the sale of said home property of the testatrix devised to him was a valid sale to said Defendant Hospital, that said sale did not operate to adeem said devise to him, but that, on the contrary, he is entitled to have the proceeds of said sale, amounting to the sum of $12,000.00; that in view of the contrary claims of the respective parties herein alleged, the Plaintiff is in doubt whether said sale and said gifts to the Defendant Hospital are valid, and is in doubt whether, if said sale to said Defendant Hospital is valid, the same did adeem his said devise of the home property, and whether he is entitled to receive the proceeds of said sale of the home property, amounting to the sum of $12,000.00; that Plaintiff had no notice of said sale or said gifts, and did not consent to the same, and was unaware, until the Will was probated, that he had been devised the home property by the testatrix in her Will and Codicil.

'WHEREFORE, the premises considered, Plaintiff respectfully prays that the Court will decree:

'* * *

'3. In the alternative, that the sale of said home property, devised to the Plaintiff by testatrix, to said Defendant Hospital, did not adeem said devise to the Plaintiff, but only converted or reduced the same to the proceeds of sale paid by the Defendant Hospital to said guardian, in the sum of $12,000.00 and that Plaintiff is entitled to have the same paid to him forthwith, together with any...