In Re Comstock's Estate, in Re

• Decision Date: 18 June 1940
• Citation: 197 So. 121,143 Fla. 500
• Parties: In re COMSTOCK'S ESTATE.
• Court: Florida Supreme Court

197 So. 121

143 Fla. 500

In re COMSTOCK'S ESTATE.

Florida Supreme Court, Division A.

June 18, 1940

Rehearing Denied July 12, 1940.

Proceeding in the matter of the estate of Harry Comstock, deceased wherein a petition was filed for an order directing the executor to pay off and discharge a mortgage. From a judgment affirming orders of the county judge directing that payments be made, the Union Trust Company, as executor and trustee and others appeal.

Circuit court decree reversed, with directions. Appeal from Circuit Court, Pinellas County; T Frank Hobson, judge.

COUNSEL

Harris & Kooman, of St. Petersburg, for appellant A. A. Rabe, guardian ad litem.

Ed. W. Harris, of St. Petersburg, for appellant Union Trust Co., executor.

Carey & Harrison, of St. Petersburg, for appellees.

OPINION

BUFORD Justice.

The appeal brings for review a decree of the Circuit Court affirming two orders of the County Judge of Pinellas County in a probate matter. The facts are: That Harry Comstock, as resident of St. Petersburg, Florida, died on July 22, 1938. He was survived by his wife, Ella, and two children, Earl and Hazel, and four grandchildren. Comstock left certain property in St. Petersburg which was admitted by all parties to be this homestead at the time of his death. Under the Probate Act, his wife, Ella, the widow, acquired a life estate in his homestead with vested remainder in Earl Comstock and Hazel Schlichting, the lineal descendants of Harry Comstock. Comstock died testate. His will, after directing the payment of debts and funeral expenses, set up a trust of the residue of decedent's property. The income from the trust was to be paid to the widow, Ella, for her life and upon her death the income to be paid to Earl and Hazel. Upon the death of the last life tenant the corpus of the trust estate was to be divided among decedent's grandchildren, who were named in the will, and any other grand children then in being. The will slso set up a separate and additional trust for one of the grandchildren but this trust is of no consequence in this suit.

Union Trust Company, a corporation of St. Petersburg, Florida, was designated as executor and also trustee under decedent's will. At the time of Comstock's death his homestead property was subject to a mortgage duly executed by his and his wife to the Jefferson Standard Life Insurance Company securing a note in the approximate sum of $8,100. The mortgagee did not file any claim against decedent's estate on the note secured by the mortgage within eight months from the date of the first publication of the notice to creditors, or thereafter.

Regardless of this condition, the County Judge on May 24, 1939, on a petition of the Union Trust Company, directed it as executor to continue making payments on the mortgage. The grandchildren were not parties to that proceeding. It is appparent, however, that they have a direct interest in the question presented by the executor's petition. Therefore, a supplemental petition was filed against them, and on September 20, 1939, a second order was entered directing Union Trust Company both as executor and as trustee to pay off and discharge the mortgage. The grandchildren were represented in the proceedings by A. A. Rabe as guardian ad litem. The Union Trust Company as Executor appealed to the Circuit Court of Pinellas County from the order of May 24, 1939. The Union Trust Company as executor and trustee, and Rabe as guardian ad litem, entered separate appeals in the same court to the order of September 20, 1939.

By stipulation of the parties all appeals were consolidated.

On October 31, 1939, the Circuit Court of Pinellas County affirmed both orders of the County Judge. From that order the grandchildren by their guardian ad litem, and the Union Trust Company as executor and trustee, entered their appeal to this Court. The single question:

'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?'

It appears from the record here that while the decedent was possessed of considerable property prior to his death, he, being joined by his wife, saw fit to execute a good and valid mortgage pledging the homestead for the payment of the debt above referred to and it must be assumed that he intended that his creditor the mortgagee, could look to the security of the pledge of that property for the payment of that particular debt. It is evident that he died knowing that that condition existed and he was charged with knowledge of the law governing such matters.

Section 120 of the 1933 Probate Act, Acts 1933, c. 16103, provides as follows:

'Section 120. Form And Manner Of Presenting Claims--Limitation.--No claim or demand, whether due or not, direct or contingent, liquidated or unliquidated, or claim for personal property in the possession of the personal representative or for damages, shall be valid or binding upon an estate, or upon the personal representative thereof, or upon any heir, legatee or devisee of the decedent unless the same shall be in writing and contain the place of residence and post office address of the claimant and shall be sworn to by the claimant, his agent or attorney and be filed in the office of the County Judge granting letters. Any such claim or demand not so filed within eight months from the time of the first publication of the notice to creditors shall be void even though the personal representative has recognized such claim or demand by paying a portion thereof or interest thereon or otherwise; provided, however, that the lien of any duly recorded mortgage and the lien of any person in possession of personal property and the right to foreclose and enforce such mortgage or lien shall not be impaired or affected by failure to file claim or demand as hereinabove provided, but such failure shall bar the right to enforce any personal liability against the estate, and the claimant shall be limited to the enforcement of the mortgage or lien against the specific property so mortgaged or held. Nothing herein contained shall be construed to require any legatee, devisee or heir at law to file any claim for the share of interest in the estate to which he may be entitled.'

It is contended that this section of the statute should not be applied in the instant case, but it appears to us that it must be applied because the facts of the case come clearly within the...