Frizzell's Estate, In re

• Decision Date: 04 September 1963
• Docket Number: No. 3573,3573
• Citation: 156 So.2d 558
• Parties: In re ESTATE of Arthur C. FRIZZELL, a/k/a A. C. Frizzell, deceased. Arthur Paul FRIZZELL et al., Appellants, v. FIRST NATIONAL BANK IN FORT MYERS, a corporation, as Executor of the Estate of Arthur C. Frizzell, deceased, Patti Lee Frizzell and Dorothy Carey Frizzell, Appellees.
• Court: Florida District Court of Appeals

Page 558

156 So.2d 558

In re ESTATE of Arthur C. FRIZZELL, a/k/a A. C. Frizzell, deceased Arthur Paul FRIZZELL et al., Appellants, v. FIRST NATIONAL BANK IN FORT MYERS, a corporation, as Executor of the Estate of Arthur C. Frizzell, deceased, Patti Lee Frizzell and Dorothy Carey Frizzell, Appellees.

No. 3573.

District Court of Appeal of Florida, Second District.

Sept. 4, 1963.

Rehearing Denied Oct. 15, 1963.

Leroy Hill, Punta Gorda, T. Paine Kelly, Jr., of Macfarlane, Ferguson, Allison & Kelly, Tampa, for appellants.

Leo Wotitzky, of Wotitzky, Wotitzky & Conrad, Punta Gorda, for appellee First Nat. Bank in Fort Myers.

W. A. Sheppard, of Sheppard & Woolslair, Fort Myers, for appellee Dorothy Carey Frizzell.

Edwin O. Simon of Redfearn & Simon, Miami, for appellee Elwood P. Safron, as guardian ad litem for appellee Patti Lee Frizzell.

ALLEN, Acting Chief Judge.

This appeal is from an order in probate declaring that appellee, Patti Lee Frizzell, is a pretermitted child of A. C. Frizzell, deceased, within the meaning of § 731.11, Florida Statutes, F.S.A. The appellants are beneficiaries named in decedent's will. The appellees, the executor and decedent's wife as well as Patti Lee Frizzell, answering by separate briefs favor the ruling of the County Judge.

We pause here to comment upon the able opinion of the County Judge in this case and also think all counsel for the well prepared briefs filed on behalf of both the appellants and the appellees.

Arthur C. Frizzell died at his home in Charlotte County, Florida, on January 6, 1961. Survivors included his wife, appellee Dorothy Carey Frizzell, an adult adopted son, Arthur Paul Frizzell, appellant herein, and an adopted infant daughter, Fatti Lee Frizzell. The infant adopted child was born prior to and adopted after execution of decedent's will and codicil thereto.

Decedent's Last Will was executed on February 15, 1960, and a Codicil was executed on July 9, 1960, changing the Executor and Trustee from Exchange National Bank in Tampa to First National Bank in Fort Myers. Decedent and his wife formally adopted Patti Lee Frizzell on October 10, 1960, and decedent's Will was never revised to provide for her. On the other hand, the Will did not show any intention of omitting any provision for her.

The main point on appeal is one of first impression in Florida and in 'whether a child adopted after the execution of a Will is a pretermitted child and would take a child's part within the meaning of Section 731.11, Florida Statutes.'

Contained in the record-on-appeal is a certificate, signed by the County Judge, to this effect:

'A. That the status of Patti Lee Frizzell, the adopted infant daughter of the above named decedent, could and should be adjudicated upon the said petitions and the pleadings filed in response thereto;

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'C. That taking of testimony to determine the status of Patti Lee Frizzell was unnecessary because the facts were * * * in the pleadings and the record and there was no controversy as to any material fact; so that the Court was not called upon to hold, and did not hold testimony to be inadmissible on the issue then before the Court.'

Accordingly, the issue here is limited to the question whether, as a matter of law, the protection of Section 731.11 extends to an adopted child.

Section 731.11, Florida Statutes, F.S.A., provides:

'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.'

Section 731.30, Florida Statutes, F.S.A., provides:

'An adopted child, whether adopted under the laws of Florida or of any other state or country, shall be an heir at law, and for the purpose of inheritance, shall be regarded as a lineal descendant of his adopting parents, and the adopting parents shall inherit from the adopting child. The adopted child shall be regarded as the natural brother or sister of the natural children and other adopted children of the adopting parents fof the purpose of inheritance from or by them. The adopted child shall inherit the estate of his blood parents, but his blood parents shall not inherit from the adopted child.'

Section 72.22, Florida Statutes, F.S.A., provides:

'By the decree of adoption the child shall be the child and legal heir of the adopting parent or parents, entitled to all the rights and privileges, and subject to all obligations, of a child born to such parent or parents in lawful wedlock. The natural parents of such adopted child, if living, shall, after the adoption, be relieved of all legal duties and obligations due from them to such child, and shall be divested of all rights with respect to such child; provided, when the adopting parent is married to one of the natural parents of such child, or thereafter inter-marries with one of such natural parents, then the relation of such child toward such natural parents shall be in no way altered by the adoption; provided further, that when an adopted child has been subsequently adopted by some third party or readopted by his natural parents or one of them, that such adopted child shall not inherit from an adopted parent when he was been subsequently adopted by another or by his natural parents or one of them, in the absence of some evidence in writing that such adopting parent considered such child his child for the purposes of inheritance, notwithstanding the subsequent adoption and provided further that nothing in this law shall be construed to prevent a legally adopted child from inheriting from the natural parents under the laws of this state or any state.'

In the case of Tsilidis v. Pedakis, Fla.App.1961, 132 So.2d 9, Judge Sturgis of the First District Court of Appeal, held that the statute authorizing an adult married couple, or the survivor, to adopt another adult implies that the adoption of an adult by a person who had never married was repugnant to Florida law or policy, and, therefore, the adopted adult could not, under Florida law, be the pretermitted heir to an estate. The appellant in that case claimed that he was entitled under Section 731.11, Florida Statutes, F.S.A., to inherit the estate of Constantine Prassas, deceased, claiming thus to be the pretermitted child by reason of his adoption in Greece. Prassas, who had never married, died after the decree of adoption was entered, leaving an estate of inheritance in Florida and a will that was executed prior to the entry of the foreign decree of adoption. The statute deemed controlling, Fla.Stat. § 72.34, (1959) F.S.A. provides:

'Any adult married couple, or the survivor thereof, residing in the state and wishing to adopt another adult, may apply by petition in chancery to the judge of the circuit court for the circuit in which such adopters may reside, for permission to adopt another adult, whether married or single, provided, however, that said adopters are more than ten (10) years older than the adoptee.'

Judge Sturgis, in his opinion, stated:

'* * * At first blush it would appear that F.S. § 731.30, F.S.A. brings appellant within the purview of F.S. § 731.11, F.S.A., but careful analysis discloses that this is not so.

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'The provisions of Chapter 72, Florida Statutes, F.S.A., relating to adoption of adults, are in derogation of the common law and must be strictly construed. The very fact that the legislature restricts the right to adopt an adult to a 'married couple, or the survivor thereof' (F.S. § 72.34, F.S.A., supra), establishes by exclusion the right of a single person to adopt an adult and implies that such is repugnant to the laws and policy of this state. We need proceed no further than the clear limitation of the statute in holding that the appellant is not entitled under the laws of Florida to share in the estate of Constantine Prassas.'

Thus, the observation, above quoted, concerning Fla.Stat. §§ 731.11, and 731.30, F.S.A., was dictum and a decision on the point was never reached. Similarly, decisions concerning § 731.30 including this court's recent decision that the adoption statute would not cut off an adopted child's right to inherit from his collateral blood kindred, In re Levy's Estate, Fla.App.1962, 141 So.2d 803, and the decision of the Supreme Court of Florida in the case of In re Hewett's Estate, 1943, 153 Fla. 137, 13 So.2d 904, holding that an adopted child could not inherit from a collateral relative of an adoptive parent, do not reach the question here involved.

As we have stated above, no Florida decision has decided the question now before this court. However, numerous decisions on this question have been rendered by the courts of our sister states and the subject has been considered by the text writers.

Atkinson on Wills, 2d Ed., Hornbook Series, page 430, states:

'Whether the adoption of a child is attended with the same consequences as the birth of issue depends to some extent upon the language of the statutes respecting revocation of wills and the adoption of children. Some decisions have been that the adoption of a child does not meet the legislative requirement of birth of issue. Most modern authorities declare that adoption of a child has the same effect as natural birth, ⁵⁶ being influenced by the terms of the adoption statutes declaring that adopted children shall have the full rights of children by birth. From a technical standpoint the cases could generally have been decided either way; the majority view is no doubt influenced by a judicial policy favoring...