Furlong v. Coral Gables Federal Sav. and Loan Ass'n, s. 59-326
| Decision Date | 23 June 1960 |
| Docket Number | 59-379,Nos. 59-326,s. 59-326 |
| Citation | 121 So.2d 797 |
| Parties | Martha Joe FURLONG, Sylvia Carnes, and Sally Leybourne, by Leo A. Furlong, Jr., her next friend, Appellants, v. CORAL GABLES FEDERAL SAVINGS & LOAN ASSOCIATION, and Charlotte Leybourne, Individually and as Executrix of the Estate of James G. Leybourne, deceased, Appellees. Martha Joe FURLONG, Sylvia Carnes, and Sally Leybourne, by Leo A. Furlong, Jr., her next friend, Appellants, v. Charlotte LEYBOURNE, Individually and as Executrix of the Estate of James G. Leybourne, Deceased, and The Coral Gables Federal Savings & Loan Association, Appellees. |
| Court | Florida District Court of Appeals |
Turner, Hendrick, Fascell & Brake, Coral Gables, for appellants.
Redfearn, Ferrell & Simon, Miami, for appellee Charlotte Leybourne.
Padgett, Teasley & Niles, Coral Gables, for appellee Coral Gables Federal Savings & Loan Assn.
The appeals in these two cases, which were consolidated for argument, are directed to orders entered in a suit for declaratory decree. The appellants Martha Joe Furlong, Sylvia Carnes and Sally Leybourne are surviving children of James G. Leybourne, deceased. The appellee Charlotte Leybourne is a widow of the deceased and the step-mother of the appellants. The appellee, The Coral Gables Federal Savings and Loan Association, hereinafter referred to as the Federal, was a creditor of the deceased, holding a mortgage on the latter's homestead property.
James G. Leybourne died October 1, 1958. He left a will which made his widow the sole beneficiary and named her as executrix. Approximately a year prior to his death the deceased and his widow, who was then his wife, had joined in making a note to the Federal in the amount of $27,500, and in the execution of a mortgage to the Federal to secure the same, encumbering the homestead property, the title to which was held by the deceased. 1
Appellants filed their complaint for declaratory decree against the widow individually and as executrix of the estate of the deceased against the Federal. In addition to the facts just stated, they alleged that the balance remaining unpaid on the note secured by the mortgage on the homestead property exceeded $26,000; that the Federal had failed to file a claim in the estate within the time allowed for filing such claims; that the appellants had filed a claim in the estate for themselves; 2 that the widow had made demand on the appellants to pay the principal owing on the indebtedness for which the homestead property was mortgaged; and plaintiffs prayed for the following relief:
'That this Court determine which party or parties have the primary obligation to pay the note for which said homestead premises were mortgaged as security.
'That if the estate of James A. [sic] Leybourne, deceased, be decreed to owe any of said sum due on said note, this Court thereupon decree either that said sum be paid at once to reduce the principal balance in advance, or provide for placing said sum in escrow, to be paid periodically.
'That if the second wife, Charlotte Leybourne, be decreed to owe any of said sum due on said note, this Court thereupon decree either than said sum be paid at once from the funds held by said Charlotte Leybourne to reduce said funds held by the said Charlotte Leybourne to reduce said principal balance in advance or provide for placing said sum in escrow from said funds held by the said Charlotte Leybourne.
'That this Court declare that the Coral Gables Federal Savings and Loan Association be estopped from foreclosing the interest of plaintiffs in and to said real property for so much of said obligation as may be due and payable from said estate if no claim for said sum is filed in said estate by said Federal.'
The widow answered, contending that as life tenant she was responsible only for payment of interest on the homestead mortgage and that the plaintiffs were responsible for payment of the principal, and averring that she was entitled to an equitable lien for principal she had advanced on the mortgage indebtedness but not seeking affirmative relief therefor in that proceeding.
The Federal filed a motion to dismiss, which was granted. Motions for summary judgment were filed by the plaintiffs, and by the defendant Charlotte Leybourne individually, and as executrix. The plaintiffs' motion was denied and the widow's motion was granted. 3
We affirm the action of the chancellor in dismissing the Federal from the cause, which was the subject of the appeal in case No. 59-326. The Federal, as the holder of a note made by the deceased and his wife and secured by a mortgage on property owned by the deceased, was entitled, under the applicable law, to elect whether to file a claim in the estate for the amount due under the mortgage debt, or to waive the filing of claim without loss of right to foreclose, and to look only to the security under the mortgage as a means of recovery. See § 733.16(1)(b), Fla.Stat., F.S.A. 4 ; In re Simpson's Estate, Fla.App. 1959, 113 So.2d 766; 22 Fla.Jur., Mortgages, § 508; 14 Fla.Jur., Executors and Administrators, §§ 136, 140.
We also affirm the chancellor in case No. 59-379, on his ruling as made in the summary decree. The main question in case No. 59-379, as raised by appellants, was whether the doctrine of exoneration, by which devisees of real property encumbered by a non-purchase money mortgage are entitled to have the lien on the mortgage discharged by payment from the personalty of the estate, was applicable as part of the law of Florida to require the executrix to pay the outstanding debt owed to the Federal.
It is clear that such doctrine could have no application in this case, because of the failure of the mortgagee to file a claim in the estate. This was determined by the Supreme Court in the case of In re Comstock's Estate, 143 Fla. 500, 197 So. 121, 122. In that case, one Harry Comstock and his wife had executed a mortgage upon his homestead property. Upon Comstock's death the widow acquired a life estate in the homestead with a vested remainder in the decedent's lineal descendants. Comstock's will directed the payment of debts, and set up a trust of the residue of his property. The holder of the mortgage on the homestead failed to file any claim against the decedent's estate. Upon petitions by the testamentary trustee and executor, the county judge directed the trust company to pay off and discharge the mortgage. That ruling was affirmed by the circuit court, but later was reversed on an appeal taken to the Supreme Court when the question presented was as follows:
'Where a person dies leaving homestead real estate which is subject to a mortgage, and the mortgagee fails to file a claim against the decedent's estate within eight months from the date of the first publication of the notice to creditors or thereafter, may the probate court direct the payment of the mortgage debt out of the decedent's estate?'
In holding that the estate could not pay the mortgagee when the mortgagee had failed to file claim, the Supreme Court said (197 So. at page 124):
'So, while it may be that the legislature has the power to make provisions by which the results sought here to be obtained would prevail, it has not done so. If there had been no mortgage securing the debt, the creditor, by failure to comply with the provisions of the statute, supra, would have lost all right to collect the debt and those who inherited the estate or acquired it by devise would then have acquired it free from that debt. It necessarily follows that those who acquire by devise an interest in decedent's property other than the homestead, acquired it free from that debt.
'While our sympathies are with the beneficiaries of the homestead, the law must be applied as we find it. The courts have no more authority to deprive one set of heirs or beneficiaries of their legal rights than they have to deprive another set of heirs or beneficiaries of their legal rights.
'The provisions of the law, as adopted in the wisdom of the legislature, have fixed it so that no property left by the decedent is available for the payment of this debt secured by a mortgage, except the mortgaged property, and the fact that that...
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Furlong v. Leybourne
...law, as determined by this court on two previous appeals, involving the same parties and factual situation. In Furlong v. Coral Gables Federal Savings & Loan Ass'n, note 2, supra, the first appeal , this court "We have considered also the contention of the appellants that the claim filed by......
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Furlong v. Leybourne, 61-173
...property passed to the appellants as the lineal descendants subject to a life estate to the widow.2 Furlong v. Coral Gables Federal Savings & Loan Ass'n, Fla.App.1960, 121 So.2d 797, 800.3 See Fowler v. Lee, 106 Fla. 712, 143 So. 613, and 30 Fla.Jur., Subrogation, § 8, to the effect that an......
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Ashkenazy v. Ashkenazy's Estate
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...law, as determined by this court on two previous appeals, involving the same parties and factual situation. In Furlong v. Coral Gables Federal Savings & Loan Ass'n, note 2, supra, the first appeal, this court 'We have considered also the contention of the appellants that the claim filed by ......