In re Monks' Estate

• Court: United States State Supreme Court of Florida
• Citation: 19 So.2d 796,155 Fla. 240
• Parties: In re MONKS' ESTATE. LUTHER v. FLORIDA AND. BANK OF JACKSONVILLE.
• Decision Date: 28 November 1944

19 So.2d 796

155 Fla. 240

In re MONKS' ESTATE.

LUTHER
v.
FLORIDA AND. BANK OF JACKSONVILLE.

Florida Supreme Court

November 28, 1944

Appeal from Circuit Court, Volusia County; Geo. Wm. Jackson, judge.

Charles W. Luther, of Daytona Beach, for appellant.

P. W. Harvey, of Daytona Beach, for appellee.

CHAPMAN, Justice.

On September 8, 1942, Lizzie Monks died intestate, in Volusia County, Florida. She left no surviving spouse, lineal descendants, father, mother, brothers or sisters. The Florida National Bank of Jacksonville was appointed administrator. The appraisal and inventory of the deceased's estate fixed [155 Fla. 241] the value of the personal property in the sum of $90,016.42 and the real estate valued at the sum of $3,550.

The administrator by petition on November 3, 1942, under Section 182 of Chapter 16103, Acts of 1933, Laws of Fla. (commonly known as the Probate Act), Section 734.25, F.S.1941, F.S.A., applied to the County Judge's Court of Volusia County, Florida, for an order adjudicating and determining the legatees, distributees, heirs or beneficiaries entitled, as a matter of law, to receive the property of the decedent owned and possessed by her at the time of her death. Hon. Charles W. Luther, on November 3, 1943, was by the County Judge of Volusia County, under Section 734.25, supra, appointed guardian ad litem of the unknown heirs of Lizzie Monks, deceased.

The Attorney General of Florida, acting for and in behalf of the State of Florida, filed in the County Judge's Court of Volusia County, Florida, a petition under Section 731.33, Fla.Stats.1941, F.S.A., claiming that the property owned by Lizzie Monks at the time of her death escheated to the State of Florida, because the decedent died without being survived by persons legally entitled to the aforesaid property. [19 So.2d 797]

On Junuary 17, 1944, Charles W. Luther, as guardian ad litem for the unknown heirs of the deceased, filed an answer and cross-answer to the petition for escheatment of the State of Florida and the petition of the administrator. Pertinent portions of the answer and cross-answer are viz.:

'Further answering said Petition and said First Supplemental Petition for Determination of the heirs at law and beneficiaries of the Estate of Lizzie Monks, deceased, and further cross-answering the several Answers filed to said Petition and said First Supplemental Petition, said Guardian ad Litem for the Unknown Heirs of Lizzie Monks, deceased, suggests to the Court that it may be without jurisdiction to determine an heirship of Lizzie Monks, deceased, notwithstanding the statutory provisions attempting to confer upon it such jurisdiction inasmuch as the Supreme Court of the State of Florida in the case of Mott v. First National Bank of St. Petersburg, reported in 98 Fla. 444, 124 So. 36, [37], has held:

[155 Fla. 242] "In respect to estates of decedents, the jurisdiction committed to the county judge is confined to that of a court of probate; that is, for the establishment of wills and the administration of such estates. Article 5, § 17, of the Constitution provides that: '* * * The county judge shall have jurisdiction of the settlement of the estates of decedents and minors, to order the sale of real estate of decedents and minors, to take probate of wills, to grant letters testamentary and of administration and guardianship, and to discharge the duties usually pertaining to courts of probate. * * *' The county judge possesses no chancery power, unless the power is of such a nuture that it is a probate as well as a chancery power. Ritch v. Bellamy, 14 Fla. 537, 542. In respect to his probate powers, the county judge...