In re Horne's Estate

• Decision Date: 17 March 1942
• Citation: 7 So.2d 13,149 Fla. 710
• Parties: In re HORNE'S ESTATE.
• Court: Florida Supreme Court

7 So.2d 13

149 Fla. 710

In re HORNE'S ESTATE.

Florida Supreme Court

March 17, 1942

Rehearing Denied April 2, 1942.

Appeal from Circuit Court, Palm Beach County; C. E Chillingworth, judge.

C. D Abbott and Kearley & White, all of West Palm Beach, for appellant Minnie Horne Terrell.

Sidney J Catts, Jr., of West Palm Beach, for appellant Florida Bank & Trust Co. and Minnie Horne Terrell, as adm'rs of Horne Estate.

E. M. Baynes, of West Palm Beach, for appellee.

BUFORD, Justice.

Chapter 16103, Acts of 1933, bears the following title: 'An act relating to wills and the probate thereof, to descent and distribution of decedents' estates, to dower, to the administration of decedents' estates and the practice and procedure relating thereto, to county judges and their jurisdiction in probate and administration and to appellate procedure relating thereto, to revise and consolidate the law relating to the estates of decedents and to repeal all laws and statutes in conflict herewith.'

Section 30 of this Act reads: 'Section 30. Illegitimates.--Every illegitimate child is an heir of his mother, and also the person who, in writing, signed in the presence of a competent witness, acknowledges himself to be the father; such illegitimate child shall inherit from its mother and also from its father when so recognized, in the same manner as if the child had been born in lawful wedlock. However, such illegitimate child does not represent his father or mother by inheriting any part of the estate of the parents' kindred, either lineal or collateral, unless his parents shall have intermarried, in which event such illegitimate child shall be deemed legitimate for all purposes.'

Vera Louise Horne was the illegitimate daughter of Robert Horne and had been so recognized by Robert Horne and others acquainted with her since her birth. Some five or six years before the death of Robert Horne, Vera Louise (generally known as Louise Horne) made her home with him as his recognized daughter. Robert Horne supported and educated Louise and in 1938 had placed her in Talladega College at Talladega, Ala. On April 20, 1938, he wrote and signed in the presence of witnesses a letter, as follows:

'Robert Horne

800 15th St.,

West Palm Beach, Fla.

April 20, 1938.

Mr. M. B. Miller, Registrar

Talladega College,

Talladega, Ala.

In Re Vera Horne

Dear Sir:

This is to acknowledge receipt of the most recent of my Daughter's report cards.

Beg to advise that I am not at all satisfied with same.

'The matter of her being delinquent in one of her courses is not so serious in my opinion, but the number of unexplained absences is a far different thing.

I would highly appreciate your cooperation in reducing the number of her cuts, and, if possible, would like to know the reason for them.

I am enclosing a stamped and addressed envelope for your reply.

Thanking you in advance, I am

Yours very truly,

(Signed) Robert Horne'.

On May 10, 1939, when Louise was in Talladega College, Robert wrote and signed, in the presence of witnesses, another letter, as follows:

'Robert Horne

800 15th St.,

West Palm Beach, Fla.

May 10th 1939.

Mr. M. B. Miller,

Talladega College,

Talladega, Ala.

Dear Sir,

In pursuance of our telephone coversation on the night of May 9th, I am herewith sending you $700.00 to be applied as follows: $612.00 to cover tuition, etc. for my Daughter Louise Horne for the years 1939 and 1940, and 1940 and 1941 to be held by Talladega College and applied as necessary.

'The balance of $88.00 to be given her in small amounts from time to time at the discretion of School Officials.

Please send official receipt for same at your earliest convenience.

Yours very truly,

(signed) Robert Horne'.

The record shows that the $700 referred to in the latter letter was enclosed with the letter and was applied as therein directed.

Robert Horne died intestate in West Palm Beach, Florida, in March, 1940, leaving surviving him his widow, Minnie Horne, and the daughter Vera Louise, who was then twenty-one years of age.

Minnie Horne and Florida Bank & Trust Company at West Palm Beach were appointed co-administrators of the estate of Robert Horne, deceased. During the progress of the administration of the estate Florida Bank & Trust Company at West Palm Beach as a co-administrator filed a petition in the probate court under the provisions of Sec. 182 of the Probate Act, supra, for determination and adjudication of beneficiaries of the estate of Robert Horne. The petition, inter alia, alleged:

'that petitioner had made diligent search and inquiry to determine who are entitled to inherit from such estate and to the best information, knowledge and belife, so far as ascertainable by petitioner, all persons in interest or claiming any interest in the above estate are as follows; to-wit: 'Minnie Horne, who has designated her address as 800 15th Street, West Palm Beach, Florida, who claims to be the wife of the above named deceased, 'Vera Louise, who has designated herein her address as care of E. M. Baynes, 803 Comeau Building, West Palm Beach, Florida, who claims to be a daughter of the above named deceased''.

Vera Louise Horne answered the petition alleging that she was the daughter of Marzella Barker and Robert Horne, having been born out of wedlock August 19, 1918, and that during the lifetime o Robert Horne he had, in the presence of competent witnesses, acknowledged in writing that she was his daughter and that he was her father; and she claimed that thus she was a lawful heir of Robert Horne.

After taking testimony presented by the parties, the County Judge entered his order and judgment inter alia, as follows:

'That Vera Louise Horne is the illegitimate child of Robert Horne, deceased, who, in writing, signed in the presence of a competent witness, acknowledged himself to be the father of the said Vera Louise Horne; that the said Vera Louise Horne is entitled to participate and share in the estate of Robert Horne, deceased, in the same manner as if she had been born in lawful wedlock. In consideration thereof

'It is ordered and adjudged that the said Vera Louise Horne is entitled to share and participate in the property, both real, personal and mixed, of the said Robert Horne, deceased, in the same manner as if she had been born in lawful wedlock and is entitled to receive one-half thereof.'

From this order appeal was taken to the circuit court and, on consideration thereof, the circuit court entered its order, as follows:

'This cause was duly presented by counsel for the parties upon an appeal from an order of the County Judge's Court, entered August 12, 1941.

'Two questions were presented to the County Judge in the entry of the order of August 12, 1941, upon the petition filed in the County Judge's Court November 30, 1940. The first question was whether Vera Louise Horne was an illegitimate child of Robert Horne. The second question was, whether Robert Horne was one 'who, in writing, signed in the presence of a competent witness, acknowledges himself to be the father' of Vera Louise Horne.

'As to the first question, the proof is ample and covincing. The petitioner was an illegitimate child of Robert Horne, generally and notoriously recognized by him as such.

'As to the second question, under the Common Law, an illegitimate child could not inherit from anyone. Under Section 5480, Compiled General Laws 1927, she could inherit only from her mother. But, this was changed by Section 30 of the Probate Act. The effect of this last statute is to permit an illegitimate child to also inherit from her father when the father, in writing, signed in the presence of a competent witness, acknowledges himself to be the father.

'The statute was adopted from a California law on the same subject. California had laid down the rule in Blythe v. Ayres, 1892, 96 Cal. 532, 31 P. 915, 19 L.R.A. 40, and in later cases, to the effect that this statute must be liberally construed.

'However earlier California decisions, based upon the same statute, held that this statute should be strictly construed. In re Sanford's Estate, 1854, 4 Cal. 12; Pina v. Peck, 1866, 31 Cal. 359. After these two decisions, and prior to the decision of Blythe v. Ayres, supra,...