In Re Jeffries' Estate, in Re

Decision Date08 June 1938
Citation181 So. 833,136 Fla. 410
CourtFlorida Supreme Court
PartiesIn re JEFFRIES' ESTATE.

Proceeding in the matter of the estate of J. B. Jeffries, deceased. Letters of administration were issued to Lilliam M. Jeffries as administratrix of the estate of J. B. Jeffries, deceased. Mattie Casey and Minnie Holmes filed a claim on a note of the deceased. From an order of the circuit court reversing an order of the county judge denying claimants' motion for an order extending the time within which to file an action at law on their claim, the administratrix appeals.

Order affirmed.

Appeal from Circuit Court, Dade County; Paul D Barns, Judge.

COUNSEL

Bryant & Pittman, of Miami, for appellant.

Newman T. Miller, of West Palm Beach, and Hawthorne & Morehead, of Miami, for appellees.

OPINION

WHITFIELD Presiding Justice.

This appeal is from an order of the Circuit Court for Dade County reversing an order of the County Judge, in his probate jurisdiction, Section 5, Article 5, constitution; sections 5541(15) to 5541(20), Perm.Supp. to C.G.L., Sections 52 to 57, Chapter 16103, Acts of 1933.

On March 17, 1936, Letters of Administration were issued by the County Judge of Dade County, to Lilliam M. Jeffries, as administratrix of the estate of J. B. Jeffries, deceased. Notice to creditors was first published March 21, 1936. On March 27, 1936, a sworn claim of Mattie Casey and Minnie Holmes against the estate on a promissory note of the decedent was filed in the office of the County Judge. The place of residence and post office address of the claimants were not given in the claim as made. On December 15, 1936, on motion of the administratrix, by counsel, the claim was stricken by the County Judge. Upon petition filed January 22, 1937, the County Judge on February 17, 1937, as of February 5, 1937, vacated the order striking the claim of Mattie Casey and Minnie Holmes, and allowed the claim to be amended by inserting the place of residence and post office address of the claimants. On leave given, the administratrix on March 4, 1937, filed objection to the claim. On June 17, 1937, the claimants, by counsel, moved 'for an order extending the time within which they may institute the proper action at law upon their claims to ten days from the date of the entry of such order.'

The order made by the County Judge is as follows:

'This cause came on to be heard upon the motion of Mattie Casey and Minnie Holmes for an order extending the time within which they might file an action at law on their claim heretofore filed herein, and it appearing to the Court that notice to creditors was first published herein on Mar. 21, 1936; that said claim was filed on Mar. 27, 1936; that on February 17, 1937, amendment to same was allowed by order of this Court; that amendment to said claim was filed on March 3, 1937; that objections were filed thereto by the administrator on March 4, 1937; that a copy of said objections was not served upon the claimants or their attorney; that said motion for an extension of time within which to file suit on such claim was filed on June 17, 1937; that movants have shown good cause why such extension of time should be granted; that the Court would grant said motion had he jurisdiction so to do; but according to the Court's construction of Section 122(b) of the 1933 Probate Act [Supp. to C.G.L.§ 5541(94)(b)], where objections to a claim are filed but not served on claimants, suit must be brought on such claim within twelve months after the first publication of notice to creditors; that therefore suit should have been brought on this claim on or before March 20, 1937; that the Court is without jurisdiction to extend the time within which such suit may be brought when motion for such extension is filed after twelve months from the date of the first publication of notice to creditors; and that the Court has jurisdiction to grant such extension only in event the motion for such extension is filed within said twelve month period; after argument of counsel, and the Court being fully advised in the premises,

'It is considered, ordered and adjudged that the said notion be, and the same hereby is denied, to which ruling the said movants do except.

'W. F. Blanton, County Judge.'

On appeal the Circuit Court made the following order:

'This cause came on to be heard after due notice upon the appeal of Mattie Casey and Minnie Holmes, claimants in the above estate, from an order entered on June 29, 1937, by the County Judge of Dade County, Florida, in the Probate proceedings of said Estate, * said order being an order overruling the motion of said claimants for an extension of time within which to file suit or their claim filed in said estate, and was argued by counsel, and it appearing to this Court from said order that the County Judge denied the motion of appellants for an extension of time within which to file suit solely because in his opinion he was without jurisdiction, under Section 122(b) of the 1933 Probate Act, to extend the time within which suit may be brought on a claim to which objections had been filed, when motion for such extension is filed after twelve months from the date of the first publication of notice to creditors, and this Court being of the opinion that such construction of said section of the Probate Act is erroneous, and that the County Judge has jurisdiction to extend such time, whether application is made before or after twelve months from the date of the first publication of notice to creditors; providing, in his opinion, movants show good cause in and by their said motion to warrant the exercise of his discretion in extending said time (see 2 Am.Law of Administration Woerner 3rd Ed. pages 1317, 1318, and other like authorities); thereupon, upon consideration thereof,

'It was considered, ordered and adjudged, as follows:

'1. That said order be and the same is hereby reversed;

'2. That the Honorable Judge of the said County Judge's Court be, and he hereby is directed to determine whether or not in his discretion further time should be allowed to institute suit upon said claim, and to enter his order accordingly.

'Done and ordered at Miami, Florida, this 7th day of October, A. D. 1937.

'Paul D. Barns, Judge.'

This appeal was taken by the administratrix from the order last above quoted.

The statutes of the State contain the following:

'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 or interest in the estate to which he may be entitled.'

'If a bona fide attempt is made to file a claim by any creditor or other claimant and same is defective as to form, the county judge, in his discretion, may permit the amendment of such claim at any time before payment.'

'(a) No personal representative shall be compelled to pay the debts of the decedent until after the expiration of eight calendar months from the granting of letters; and if any person shall bring any suit or action against any personal representative within said eight months upon any claim to which the personal representative has filed no objection, the plaintiff, although he obtain decree or judgment, shall not receive any costs of suit, or attorney's fees, nor shall such judgment change the class of such claim in any manner.

'(b) On or before the expiration of ten...

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