Freedman's Estate, In re

• Decision Date: 16 September 1969
• Docket Number: Nos. 68--1003--68--1005,s. 68--1003--68--1005
• Citation: 226 So.2d 423
• Parties: In re ESTATE of Harry FREEDMAN, Deceased.
• Court: Florida District Court of Appeals

Page 423

226 So.2d 423

In re ESTATE of Harry FREEDMAN, Deceased.

Nos. 68--1003--68--1005.

District Court of Appeal of Florida, Third District.

Sept. 16, 1969.

Rehearing Denied Oct. 7, 1969.

Thomas A. Horkan, Jr., Dunn & Johnson, Lester, Oppenheimer & Gorman, Miami, for appellant.

Talianoff & Waller, Barrett, Christie & Shepard, Miami, and Paul S. Berger, Miami Beach, for appellees.

Before PEARSON, C.J., and BARKDULL, J., and LOPEZ, AQUILINO, Jr., Associate Judge.

PEARSON, Chief Judge.

These three appeals by Evelyn Patricia Freedman grow out of her attempt to participate in the estate of her natural father, Harry Freedman. Two of the appeals concern substantially the same matter. We therefore have two orders to review. The first is a denial of appellant's petition to revoke the probate of her father's will. ¹

The second is a denial of appellant's petition to appropriate a portion of the assets of the estate to the discharge of her claimed right as a pretermitted child.

'The Testator had at all times in question the finest of legal advice. He knew that he could always change his Will notwithstanding his Separation Agreements. He did in fact do so. The decedent was a man obviously wilful by nature but nevertheless one who keenly felt his responsibilities. During all of the time that he abandoned and separated himself from his wife and his lawful daughters, he provided for them. He felt so keenly his obligation towards the daughter born of his relationship with MRS. COHEN that he went into the Circuit Court of Dade County, Florida, and established judicially the fact of his paternity and asked that she be awarded his name of FREEDMAN. In his Last Will and Testament, and reaffirmed by the Codicils thereafter made to his Last Will, he acknowledged her as his daughter and commented upon the provisions that he had made for her welfare, and expressed his hope that he would be able to make additional provisions for her benefit during the remainder of her lifetime. The record is abundantly clear that the decedent not only provided for the lifetime of MRS. COHEN, but that he made substantial provisions for the care and maintenance and the future of his daughter, EVELYN PATRICIA, the Petitioner here. There is no substantial evidence before the Court that the Separation Agreements, the subsequent Last Will and Testament, and the Codicils thereto were other than the free and voluntary act of the decedent entered into and made by him after full advice of counsel and due consideration of all of the objects of his bounty, and that the same constitute his free acts and deed and were not induced or brought about as a result of duress, coercion or undue influence on the part of any person.'

Appellant has presented four points on the combined appeals. Points I, II, and IV are directed to the denial of the petition to revoke probate of the will. We will consider these points first and then Point III, which is directed to the denial of the petition to appropriate assets.

Point I urges that the county judge's court did not have jurisdiction over the subject matter. The argument under this point proceeds as follows: (1) the deceased was coerced by the fraud and harassment of his wife into making a property settlement agreement which was later made part of a New York judgment of separation; (2) the agreement and the judgment directed that the deceased should not change his will without the consent of his wife; (3) therefore the validity of the will depended upon the validity of the agreement; (4) since the county judge's court had no jurisdiction to determine the question of the validity of the agreement, that court committed error when it proceeded to deny the petition to revoke probate after the appellant attacked the validity of the agreement.

We must note in connection with this line of reasoning that the appellant invoked the jurisdiction of the county judge's court to determine the validity of the will when she filed her petition to revoke probate in that court. The county judge's court has exclusive jurisdiction to determine the validity of a will. In re Dahl's Estate, Fla.App.1960, 125 So.2d 332, 336. That court does not have power to determine the validity of a contract. In re Shepherd's Estate, Fla.App.1961, 130 So.2d 888, 892. If the appellant wished to attempt to set aside the New York judgment and invalidate the separation agreement, she should have made a direct attack in the proper court. We hold that when she collaterally raised the issue of the validity of the separation agreement in the county judge's court she did not thereby deprive that court of jurisdiction to proceed with a determination of her petition directed to the will. See In re Niernsee's Estate, 147 Fla. 388, 2 So.2d 737 (1941); State ex rel. Booth v. Byington, Fla.App.1964, 168 So.2d 164.

Appellant's Point II urges that the denial of several motions for continuance was error. We have examined the record in the light of the assignments argued under this point and find no error. See Fain v. Cartwright, 132 Fla. 855, 182 So. 302 (1938); Carol City Utilities, Inc. v. Gaines Construction Co., Fla.App.1967, 201 So.2d 242.

Appellant's Point IV is: 'The trial court misapprehended the legal effect of the evidence as it applies to the ambulatory and revocable characteristics of the alleged will.' The appellant is aware that a testator's contract not to revoke a will does not make a will irrevocable, since by definition a will is always revocable. See in re Shepherd's Estate, Fla.App.1961, 130 So.2d 888. But she urges that under the facts set forth in the record the instrument which was probated as a will was not a will because it was not revocable upon the choice of the testator. We cannot agree. The fact that the decedent did not care to accept the penalties for violating his contract by changing his will did not take from him the power to change his will with regard to the appellant. We hold that the trial judge correctly determined that the contract not to change the will with regard to the appellant did not render the will void.

Appellant's remaining point claims error upon the court's dismissal of her petition for the appropriation of assets for her benefit as a pretermitted child. Section 731.11, Fla.Stat., F.S.A., provides:

'Children born after execution of will When a testator omits to provide in his will for any of his children born after the making of the will and such child has not had bestowed upon him by way of advancement a portion of the testator's property equivalent to a child's part, unless it appears from the will that such omission was intentional, such child shall receive a share in the estate of the testator equal in value to that which he would have received if the testator had died intestate. The share of the estate which is assigned to such pretermitted child shall be raised in accordance with the order of appropriation of assets set forth in this law.'

The trial judge dismissed appellant's petition for the appropriation of assets. We must conclude that the judge determined that upon the facts shown by this record the appellant was not a pretermitted child. In order to decide whether this determination is correct we must consider the following summary of facts from the record: (1) the appellant was born in wedlock (i.e., while her mother was married to Benjamin Cohen) in 1946; (2) the testator's will is dated May 10, 1955; (4) that will contains a reference to Evelyn Patricia Deering; (5) upon the testator's petition the circuit court entered an 'Order re Paternity' on February 8, 1962, judicially declaring the appellant to be the child of Harry Freedman and changing her name to Evelyn Patricia Freedman; (6) a codicil dated March 19, 1959, declares 'I hereby ratify, confirm and republish my will bearing date the 10th day of May, 1955 * * *'; (7) a codicil dated July 11, 1966, bears the heading 'Codicil to the Last Will and Testament of Harry Freedman' but makes no specific reference to the will of May 10, 1955; (8) the Petition for Probate of Will, signed by the appellees, listed Evelyn Patricia Freedman as a daughter of the testator.

Among the legal problems we must resolve in deciding whether appellant is a pretermitted child are:

1. Did the Order re Paternity have the effect of an adoption thus making appellant eligible to share in the testator's estate as a pretermitted child? ²

2. Did the codicil of July 11, 1966, published after the Order re Paternity, republish the original will so that the appellant was not a '(child) born after the making of the will' as described in § 731.11, Fla.Stat., F.S.A.?

The trial judge did not find...