In Re Dana's Estate, in Re

• Decision Date: 23 June 1939
• Citation: 190 So. 52,138 Fla. 676
• Parties: In re DANA'S ESTATE. DANA v. DRUMRIGHT et al.
• Court: Florida Supreme Court

190 So. 52

138 Fla. 676

In re DANA'S ESTATE. DANA v. DRUMRIGHT et al.

Florida Supreme Court

June 23, 1939

Proceeding in the matter of the estate of Howard Dana, deceased, wherein E. B. Drumright was appointed administrator, and Jessica G Dana filed the will of Howard Dana and petitioned for letters of administration cum testamento annexo, and the administrator filed a caveat to the probate of the will, and an answer seeking to contest the will after which the First Savings & Trust Company of Tampa, as executor of the estate of Anna M. Dana, deceased, and Leona D. Dana filed a joint answer seeking to contest the will. From orders of the county judge granting a motion of Jessica G. Dana to strike the answer of E. B. Drumright, as administrator of the estate of Howard Dana, and to strike the answer of the First Savings &amp Trust Company of Tampa, as executor of the estate of Anna M Dana, and Leona Dana and revoking the letters of administration granted to E. B. Drumright, admitting the will of Howard Dana to probate and appointing Jessica G. Dana as administratrix cum testamento annexo, the administrator and the First Savings & Trust Company of Tampa, as executor of the estate of Anna M. Dana, deceased, and Leona Dana appealed to the circuit court. From a decree of the circuit court denying the motion of Jessica G. Dana to dismiss the appeal of the administrator, and sustaining the order of the probate judge striking the answer of Leona D. Dana and reversing its orders striking the answers of the administrator and the First Savings & Trust Company of Tampa, as executor of Anna M. Dana, deceased, and reversing the orders revoking the letters of administration of E. B. Drumright, admitting the will to probate and appointing Jessica G. Dana as administratrix cum testamento annexo, Jessica G. Dana appealed and Leona D. Dana filed a cross-assignment of error.

Reversed. Appeal from Circuit Court, Hillsborough County Harry N. Sandler, judge.

COUNSEL

Fank T. Phillips and Maxwell & Cobbey, all of Tampa, for appellant.

Dickinson & Dickinson, of Orlando, and Hill & Hill, of Tampa, for appellees.

OPINION

TERRELL Chief Justice.

In March, 1936, Howard Dana executed a will devising all his property to his wife, Anna M. Dana, for life and on her death, to Jessica G. Dana, his daughter in law, and appellant here. On August, 1937, E. B. Drumright filed a petition in the County Judge's Court of Hillsborough County alleging that Howard Dana had died intestate and praying that he be appointed administrator of his estate, which was done in response to the prayer of said petition.

In September, 1937, immediately after Drumright's appointment as administrator, Jessica G. Dana filed the will of Howard Dana in the County Judge's Court and petitioned for letters of administration cum testamento annexo. Drumright filed a caveat to the probate of said will. The will was proven and the County Judge issued citation to E. B. Drumright as administrator of the estate of Howard Dana, attaching thereto a copy of the petition for letters of administration cum testamento annexo. Drumright as administrator filed an answer to the petition seeking to contest the will on the ground of mental incapacity of the testator to execute same.

Anna M. Dana died testate September 3, 1937, and First Savings and Trust Company of Tampa claiming to act as executor of her estate and Leona D. Dana, another daughter in law, claiming as devisee and legatee under the will of Anna M. Dana, filed a joint answer seeking to contest the will of Howard Dana on the ground that it was secured by undue influence and that he was mentally incapacitated to execute the same. Jessica G. Dana moved to strike the joint answer of First Savings and Trust Company of Tampa and Leona Dana and the answer of E. B. Drumright on the ground that they were not properly before the Court, that they were not authorized by the Court to file the contest, that they had no right to file the contest and that they were not such heirs or distributees under the will as gave them a right to contest its probate.

The County Judge granted the motion to strike...