Hardcastle v. Mobley
| Decision Date | 21 August 1962 |
| Docket Number | No. 62-101,62-101 |
| Parties | Paul E. HARDCASTLE, Appellant, v. Virginia Lane MOBLEY, both individually and as Executrix of the Estate of Mark Edgington Hardcastle, deceased, Appellee. |
| Court | Florida District Court of Appeals |
Holcomb & Holcomb, Miami, for appellant.
Nelson & Spielvogel, Miami Beach, for appellee.
Before HORTON, BARKDULL and HENDRY, JJ.
The appellant seeks review of an adverse summary decree of dismissal entered by the chancellor upon the finding by the court '* * * that the Plaintiff cannot establish a Cause of Action enforceable in a Court of Equity, and is unable in any event to go forward with his proof of his alleged Cause of Action. * * *'.
The appellant filed a complaint for specific performance of a contract and to impress a trust upon the assets of the estate of a decedent, contending that he and the deceased, Mark Edgington Hardcastle, were twin brothers and that they had entered into an oral agreement to execute reciprocal wills making each other beneficiary of their respective wills; that at the time of the demise of the decedent his last will and testament failed to carry forward the provisions of the oral reciprocal agreement. Issue was joined by an answer which required the plaintiff to sustain the material allegations of his complaint. Certain interrogatories were addressed to the appellant and, in response thereto, he candidly admitted that 'no other person was personally present and overheard the discussion or conversation resulting in such agreement'. Thereafter, a motion for summary final decree was filed, asserting that there was no dispute as to any material fact and that it affirmatively appeared that the plaintiff was unable to proceed, his lips being sealed by § 90.05 Fla.Stat., F.S.A., known as the 'dead man's statute'. The cause then came on for hearing, at which hearing the appellant [through his counsel] attempted to submit an affidavit in opposition to the motion for summary final decree which in substance stated that the appellant had one or more witnesses [not named] who could testify that the deceased had admitted [during his lifetime] the existence of the oral contract sued upon. The chancellor rejected this affidavit upon the premise that it was not timely filed.
The appellant filed 4 points, each of which was a violation of the rule relative to clarity and conciseness in the stating of points on appeal. 3.7, subd. f, F.A.R., 31 F.S.A.; State v. City of Hialeah, Fla.1959, 109 So.2d 368; Serotkin v. Flavin, Fla.App.1959 111 So.2d 483. However, we have examined the points and find that the appellant relies on the following as grounds for reversal of the summary decree of dismissal filed in this cause: (1) That the prohibition of § 90.05 Fla.Stat., F.S.A., known as the 'dead man's statute', can only by raised at the time of trial; (2) that it could not be said that there was no issue as to a material fact; (3) that the appellant was entitled to an inference that he had other evidence which could be presented; and (4) that the affidavit filed at the time of hearing should not have been rejected by the chancellor as being untimely filed.
None of the errors urged by the appellant are found to be...
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...v. Pattishall, 127 Fla. 474, 129 Fla. 498, 176 So. 568 (1937); Triesback v. Tyler, 62 Fla. 580, 56 So. 947 (1911); Hardcastle v. Mobley, 143 So.2d 715 (Fla. 3d DCA 1962). The record discloses that although the deed recited a nominal consideration, none was actually given. The purely volunta......
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...the Florida Supreme Court in Harvey Building, Inc. v. Haley, Fla.1965, 175 So.2d 780, 782, where the court relying on Hardcastle v. Mobley, Fla.App.1962, 143 So.2d 715 'Obviously the Second and Third District Courts are in conflict on the point stated regarding the alleged burden of a movan......
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...So.2d 1062 (Fla.1987); Auerbach v. Alto, 281 So.2d 567 (Fla. 3d DCA 1973), cert. denied, 297 So.2d 31 (Fla.1974); and Hardcastle v. Mobley, 143 So.2d 715 (Fla. 3d DCA 1962). In addition to the cases previously discussed, Auerbach and Hardcastle also rely on the decision of Cleveland Trust C......
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