Haydon v. Weltmer

• Decision Date: 04 April 1939
• Citation: 137 Fla. 130,187 So. 772
• Parties: HAYDON v. WELTMER et al.
• Court: Florida Supreme Court

187 So. 772

137 Fla. 130

HAYDON v. WELTMER et al.

Florida Supreme Court, Division B.

April 4, 1939

Suit by Hannah Reber Weltmer, joined by her next friend and husband Harvey G. Weltmer, against Julian W. Haydon, for restoration of personalty to one entitled thereto under a will. From a decree for plaintiff, defendant appeals.

Affirmed. Appeal from Circuit Court, Osceola County Frank A. Smith, judge.

COUNSEL

George P. Garrett, of Orlando, and Ellis F. Davis, of Kissimmee, for appellant.

O Preston Johnson, of St. Cloud, and Murray W. Overstreet, of Kissimmee, for appellee.

OPINION

PER CURIAM.

This appeal brings for review a final decree holding, in effect that equity may order restoration of personal property, having sentimental value or antiques that cannot be replaced, to one entitled thereto under the provisions of a will.

Kitty Ann Rozycki died in St. Cloud, Florida, March 3, 1933, at the age of 93, leaving a last will and testament wherein she gave to her niece, Hannah Reber Weltmer, a remainder in fee simple, after a life estate to her husband, Stephen Rozycki, in all property owned by her at her death. She made her husband, the executor of her will. Her husband survived her and took a life estate in the property. When the property was listed for appraisal, only three bank accounts, in three different banks, were listed. On April 11, 1935, Stephen Rozycki, made a bill of sale of certain furniture, household goods and sundry articles to Julian W. Haydon, which bill of sale was recorded. This property was later claimed by Hannah Reber Weltmer to be part of the estate of Kitty Ann Rozycki. On September 23, 1935, Stephen Rozycki died, leaving a will in which he left all of his property to Julian W. Haydon.

After the death of Stephen Rozycki, Hannah Reber Weltmer filed her bill of complaint and later her amended bill, praying that equity take jurisdiction of the cause, and decree that the bill of sale from Stephen Rozycki to Julian W. Haydon conveyed only the life interest in the property, that fee simple title in the same is in plaintiff, and that defendant deliver up possession of the same to plaintiff forthwith.

The amended bill alleged that during her lifetime, Kitty Ann Rozycki had an independent income, and was possessed at her death of certain described personal property which constituted her separate property, valued at $1,000, which consisted of furniture, household goods and jewelry, and which Stephen Rozycki, as Executor, failed to account for in the administration of her estate; that a life interest became vested in Stephen Rozycki under the terms of the will of Kitty Ann Rozycki; and after his death, fee simple title vested in Hannah Reber Weltmer; that during the latter years of the life of Stephen Rozycki, Julian W. Haydon became familiar with him and with his business affairs; that on April 11, 1935, Stephen Rozycki executed to Julian W. Haydon, without consideration, a bill of sale to this questioned personal property, which was recorded; that Julian W. Haydon is now in possession of and claims title to said property; that since September 23, 1935, plaintiff has been the owner of said property in fee simple, which articles are 'antique and/or heir-looms and have a sentimental value to complainant that far exceeds their actual value to complainant, and if sold or disposed of, could not be replaced or adequately compensated in damages.'

Motion to dismiss and motion for bill of particulars were both denied by the court.

The answer denied the material allegations of the amended bill of complaint, and prayed that the amended bill be dismissed.

Motion to strike portions of the answer was denied.

Bill of particulars was filed, describing more particularly the articles described in paragraph two of the amended bill of complant.

Testimony was taken and exhibits were filed before Hon. Frank A. Smith, Circuit Judge. The Court, after considering the evidence and the argument of counsel, entered final decree finding that there was equitable jurisdiction in the court on the facts as disclosed in support of the amended bill, and that plaintiff is entitled to relief on the merits of the case; that the property described in the amended bill belonged to Kitty Ann Rozycki at the time of her death, and passed to plaintiff under her will, subject to a life interest in Stephen Rozycki, and is now in the possession of Julian W. Haydon; that Stephen Rozycki died September 23, 1935; that only a few of the articles are antiques and cannot be replaced, but a great number of the articles have a sentimental value to plaintiff, the niece of Mrs. Rozycki, and that each of said parties had a deep affection for each other; and that plaintiff is entitled to recover possession of property having a sentimental value or antiques which cannot be replaced and is therefore entitled to recover possession of all of said described property. The final decree ordered as follows:

'It is thereupon ordered, adjudged and decreed by the Court that on March 3rd, 1933, Kitty Ann Rozycki died possessed of the following described property, which is likewise described in the Amended Bill of Complaint and is now in the possession of the Defendant, Julian W. Haydon, in St. Cloud, Osceola County, Florida, to-wit:

'2 oak rocking chairs; 5 dining room chairs; 6 silk bottom parlor rocking chairs; 1 cane bottom rocking chair; 1 large dining room table; 5 round and square small tables; 2 parlor sofas; 2 beds; 1 tall clock; 1 small clock; 1 chiffonier; 2 dressers; 1 large stand; 4 large mirrors and all small mirrors; 1 buffet; 1 china closet; 5 oil paintings; 28 pictures; 1 standing lamp; 1 lamp stand; 6 bronze candle sticks; 2 vases; all dishes and china-ware and cut glass and all silver-ware, complete; all water and tea sets, silver and copper, complete; 1 large square brass hearth and mantle protector; all silver household equipment of every nature; 1 writing desk; all jewelry; including 2 bracelets, 2 rings with 3 stones each, one long gold chain with locket, 2 bar pins, 1 monogramed gold broach, and 1 string of coral beads.

'and that title to all of said property passed by the last Will and Testament of the said Kitty Ann Rozycki to the complainant, Hannah Reber Weltmer, subject to a life interest in and to same in Stephen Rozycki.

'It is further ordered, adjudged and decreed that the Bill of Sale dated April 11, 1935, from Stephen Rozycki to Julian W. Haydon, which was recorded among the Public records of Osceola County, Florida, on April 11, 1935, in Miscellaneous Book 'O', page 111, conveyed to the said Julian W. Haydon only the life interest of the said Stephen Rozycki in and to the hereinabove described property, and that the said Stephen Rozycki died on September 23, 1935, and that the said Hannah Reber Weltmer is now the owner of fee simple title to the said hereinabove property.

'It is further ordered, adjudged and decreed that as the owner of the fee simple title to the hereinabove described property, the said Hannah Reber Weltmer is entitled to possession and use of same, and the said Julian W. Haydon be and he is hereby authorized, directed and commanded to forthwith deliver up possession of the hereinabove described property to the said Hannah Reber Weltmer.'

From this final decree, Julian W. Haydon took an appeal.

Appellant contends that this was not a case for equity jurisdiction, because it involved the recovery of personal property in specie, and the remedy at law should be employed.

In the case of Burr v. Bloomsburg, 101 N.J.Eq. 615, 138 A. 876, 877, decided by the Court of Chancery of New Jersey, jurisdiction of equity was held to be maintainable when complainant brought her bill in equity to recover possession of a diamond ring from her deceased brother's widow, who claimed it by virtue of her husband's will, and to which ring complainant claimed she was entitled under a death-bed disposition made of it by her father, Robert Bloomsburg, who said, 'This is the last gift, Jennie, I will ever give you. If you are hungry, you can sell it for food; if not, it goes to Mary, then to Pud, and then to baby.' 'Pud' was the complainant. After acquiring the ring in due course, according to the plan of her father, complainant loaned the ring to her brother George, who never returned it and after he died his widow claimed it. The Court of Chancery in that case went fully into the history of why equity takes jurisdiction in that class of cases, and said:

'Undoubtedly 'this court has jurisdiction to enforce the restitution or delivery of a specific chattel which has a peculiar artificial value, and for which therefore adequate compensation cannot be obtained at law; and that, too, whether possession has been got by the wrongdoer through a trust or not.' Pattison v. Skillman, 34 N.J.Eq. 344. The same principle was involved in the later cases of Schrafft v. Wolters, 61 N.J.Eq. 467, 48 A. 782; Bindseil v. Smith, 61 N.J.Eq. 654, 47 A. 456; Motley v. Darling, 86 N.J.Eq. 185, 98 A. 384. This jurisdiction has been exercised by the Court of Chancery since very early times.

'The earliest leading case on the subject, and perhaps the one most frequently cited, is Pusey v. Pusey, 1684, 1 Vern. 273. That case involved the possession of a horn anciently given to the Pusey family by the Danish King Canute and which time out of mind had gone along with the plaintiff's estate. The horn bore this inscription:

"Kyng Knowd geve Wyllyam Pewse This horne to hold, by they lond.'

'It was held the bill was maintainable for the recovery of the specific chattel. The next reported case pertinent to this inquiry, and to which my attention has been directed, is Duke of Somerset v. Cookson, 1735, 3 P.Wms. 389. It involved the

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