Kolb v. Levy
| Decision Date | 15 July 1958 |
| Docket Number | No. 57-179,57-179 |
| Citation | 104 So.2d 874 |
| Parties | Joyce B. KOLB, Appellant, v. Jeanette V. LEVY, Individually, and as Executrix under the Last Will and Testament of Regina Rosenthal, Deceased, Appellee. |
| Court | Florida District Court of Appeals |
J. M. Flowers, Miami, for appellant.
Redfearn & Ferrell and Marion Brooks, Miami, for appellee.
This is an appeal from an order of the County Judges' Court of Dade County removing the appellant, Joyce B. Kolb, as co-executrix under the last will and testament of Regina Rosenthal, deceased, upon the ground of conflicting or adverse interest held by the said personal representative against the estate.
The appellant urges that the petition did not set forth a sufficient ground for removal under the Florida Statutes, inasmuch as the alleged 'conflicting or adverse interest' 1 consisted only of filing a claim, which has not been judicially determined to be a valid claim. The record on appeal contains no report of the proceedings upon the petition. We find that the petition for removal contained grounds which are sufficient under the statute.
The petition for removal of co-executrix set forth the following:
'That on the 22nd day of September 1956, Joyce B. Kolb, and petitioner, Jeanette V. Levy, qualified as joint executrixes of the estate or Regina Rosenthal, deceased.
'Joyce B. Kolb has been derelict in her duties as an executrix of the estate of Regina Rosenthal, deceased, for the reasons set forth in this petition. Instead of carrying out the provisions of the will made by Regina Rosenthal, which she was legally bound to do, she has attempted to destroy its legal effect. Adverse and conflicting interest to the estate is manifested by the number of claims which she has filed in this court, which in the aggregate greatly exceeds the entire corpus of the estate.
'In the allegations made in her claims, she has charged the testatrix, Regina Rosenthal, with not only a breach of contract in her repudiation of a prior will whereby she alleges testatrix agreed to leave her the entire estate, but also with the embezzlement of $10,000.00, which she, the said Joyce B. Kolb, claims to have given to the testatrix to buy government bonds.
'On January 4, 1957, the said Joyce B. Kolb, filed her petition in this court for the return of $10,000.00 in government bonds, she claiming absolute ownership to them. The bonds, hereinabove referred to, were listed in the inventory of said estate by the said Joyce B. Kolb, as co-executrix, as belonging to said estate, and this inventory of the bonds was sworn to by the said Joyce B. Kolb.
'The said Joyce B. Kolb alleged in her said petition that she gave $10,000.00 in cash to the testatrix for the express purpose of purchasing government bonds and holding them for her father, who died several years ago.
'She further alleged that the testatrix told her that she had a 'note inside of the $10,000.00 folder bonds, which note definitely stated these bonds are the property of my niece, JOYCE B. KOLB.' The bonds were in the personal safety box of testatrix in the Florida National Bank and Trust Company at Miami, Florida. Later the testatrix surrendered her personal box and removed the bonds therefrom into a joint box, to which she, the said Joyce B. Kolb, and the testatrix had access. The said Joyce B. Kolb further alleged in her claim that the $10,000.00 bonds and also the 'note' hereinabove referred to was seen by her.
'The said Joyce B. Kolb returned to Miami on September 25, 1956, with the body of the testatrix. While in Miami she learned, so she claims, that the testatrix had opened another safety deposit box in her own name after having surrendered the box to which she and the testatrix had access; she also claims that at that time she discovered that the bonds had been revoved to the later acquired box, she discovered the 'note' or memorandum indicating her ownership of the bonds was missing.
'The said Joyce B. Kolb alleges in her claim that she was the attorney for the testatrix and had handled all of her financial matters exclusively, and that the testatrix had never invested in the bonds and had never paid any federal tax on the dividends derived from them; that although the said Joyce B. Kolb had been a practicing attorney for thirty odd years in New York and had resided in New York, and the testatrix was a resident of Miami, Florida, for many years before her demise, she Joyce B. Kolb, entrusted the testatrix with $10,000.00 to buy bonds and keep them in the safe deposit box in Miami. Petitioner alleges that most of the time during the administration of this estate, the said Joyce B. Kolb has been in New York consulting attorneys and preparing claims against this estate.
'The allegations of the said Joyce B. Kolb, that she entrusted testatrix with $10,000.00 to buy government bonds; that testatrix bought them for her and put them in the box to which both had access with a 'note' saying they belonged to the said Joyce B. Kolb; that the testatrix, without Joyce B. Kolb's knowledge, cancelled the box jointly used by both parties and opened another box and destroying said note, are charges of conversion against testatrix.
'After the aforesaid petition was filed in this court for the recovery of the bonds, the said Joyce B. Kolb filed an 'Amended Petition to Return Bonds' in the County Judges' Court in which she attempted to explain why she had signed nad verified the inventory as co-executrix by stating that the bonds were listed for tax purposes. Her petition was denied by the Honorable Frank B. Dowling on the ground that the County Judges' Court had no jurisdiction to determine title.
'After dismissal of the suit, as aforesaid, on June 4, 1957, the said Joyce B. Kolb, filed two claims in the County Judges' Court, one being for $10,000.00, in money she claimed that she advanced to Regina Rosenthal on or about April 15, 1945, and the other for money advanced for express purpose of purchasing $10,000.00 worth of Treasury bonds, negotiable; this is the same claim above mentioned on which she lost her suit in the chancery suit.
'In the last claim there is a direct charge of conversion or misappropriation of funds entrusted to the testatrix.
'Subsequently to the claims and suits hereinabove described, the said Joyce destroying the will of the testatrix. against the estate in the amount of $125,000.00, purporting to be for legal services she rendered to the testatrix for several years prior to her death.
...
To continue reading
Request your trial
-
Kolb v. Levy
...Ferrell & Simon, Miami, for appellee. HORTON, Judge. This is the second appearance of these parties in this Court. Kolb v. Levy, Fla.App.1958, 104 So.2d 874. In the first appearance, this court affirmed an order of the county judge removing the appellant as one of the personal representativ......
-
Murphy's Estate, In re, s. 75--1146
...involves the exercise of the trial court's discretion. In re Estate of Anders, 209 So.2d 269 (Fla.1st DCA 1968), and Kolb v. Levy, 104 So.2d 874 (Fla.3d DCA 1958). As the court stated in the Anders '. . . if the present petition sought the removal of a personal representative instead of the......
-
Continental Nat. Bank v. Brill, 93-1323
...the estate as a whole and therefore does not warrant the representative's removal. Sec. 733.504(9), Fla.Stat. (1991); Kolb v. Levy, 104 So.2d 874, 878-79 (Fla. 3d DCA), cert. denied, 108 So.2d 48 (Fla.1958). The appointee becomes solely responsible for the performance of specific duties aut......
-
Vaughn v. Batchelder
...and substantial reason to believe that damage will otherwise accrue to the estate," that standard has been met here. Kolb v. Levy, 104 So.2d 874, 878 (Fla. 3d DCA), cert. denied, 108 So.2d 48 (Fla.1958). There is a tangible and substantial reason to believe that damage may accrue to the est......