Krivitsky v. Nye

• Decision Date: 24 October 1944
• Citation: Krivitsky v. Nye, 155 Fla. 45, 19 So.2d 563 (Fla. 1944)
• Parties: KRIVITSKY et al. v. NYE et al.
• Court: Florida Supreme Court

19 So.2d 563

155 Fla. 45

KRIVITSKY et al. v. NYE et al.

Florida Supreme Court

October 24, 1944

Rehearing Denied Nov. 15, 1944.

Appeal from Circuit Court, Hillsborough County; L. L Parks, judge.

Calvin Johnson, Howard E. Joseph and Mabry, Reaves, Carlton Anderson & Fields, all of Tampa, for appellants.

Horn &amp Ossinsky, of Daytona Beach, and Sutton, Reeves & Allen, G. L. Reeves, and LeRoy Allen, all of Tampa, for appellees.

CHAPMAN, Justice.

On February 19, 1927, an inventory appraisement was filed in the County Judge's Court of Volusia County, Florida, which fixed the value of the Fred J. Harpster, Sr., estate at the sum of $235,363.28. A corrected appraisal fixed the value at the sum of $237,613.75. The estate, as shown by the record, owned stocks, bonds, real estate mortgages, and contracts involving real estate situated in the States of Florida and Ohio. Lands of considerable value situated in the two States likewise were owned by the estate. The annual income arising from the property of the estate about the time of decedent's death approximated $17,000. It is alleged that the true value of the estate about the time was about $240,000.

The late Mr. Harpster directed the disposition of all of his property and estate by the terms of his last will and testament. He had, prior to moving to Daytona Beach, Florida, resided in Elyria, Ohio, and owned considerable stock in the Elyria Savings & Trust Company at the time of his death. The terms and provisions of his will nominated the Elyria Savings & Trust Company of Elyria, Ohio, executor and trustee of his estate and thereby authorized it to assume and discharge all the duties imposed, without the giving of a formal bond. The Elyria Savings & Trust Company did not assume the duties imposed by the last will and testament because it was not legally authorized to function as such trustee in the State of Florida. Broad grants of power in the management and handling of all the property of the estate by the terms of the will were given to the Elyria Savings & Trust Company.

Mr. H. H. Nye, a stockholder and trust officer of the Elyria Bank & Trust Company, then residing in Elyria, Ohio, was appointed as administrator c. t. a. of the Harpster Estate by the County Judge of Volusia County, Florida. He qualified as administrator c. t. a. and filed a suitable bond with the American Surety Company, a party to this suit, as surety. The administrator, shortly after appointment by the Florida Court, took or removed the assets from the State of Florida to Elyria, Ohio. Additional facts concerning this controversy appear in our former opinion. See Krivitsky v. Nye, 152 Fla. 614, 12 So.2d 595.

On November 2o, 1936, the County Judge of Volusia County, Florida, made and entered an order of final discharge as administrator c. t. a. of the estate of Fred J. Harpster, Sr., and in the same order discharged the bonding company as surety. On September 22, 1941, Anna Krivitsky, as trustee of the Fred J. Harpster, Sr., trust estate, filed in the Circuit Court of Hillsborough County, Florida, a bill in equity against H. H. Nye, individually and as administrator of the Harpster estate, and the surety on the administrator's bond. The Chancellor below entered an order sustaining a motion to dismiss the bill of complaint and the plaintiff below appealed.

The bill of complaint in substance alleged that Nye took possession of all the assets of the estate and took them with him from Florida to Elyria, Ohio; that he participated in procuring an ancillary administration upon the personal property in Elyria on the part of the Elyria Savings & Trust Company, in which he was a stockholder and trust officer; that it was his legal duty to speedily close the administration of the estate in Volusia County, Florida, but permitted and allowed the same to remain in the custody and control of the Elyria Savings & Trust Company so as to obtain large fees for alleged services rendered and pursued an unlawful course of conduct in the management of the estate, thereby causing waste, diversion and intentional and unlawful dissipation of the estate for gain for himself and Elyria Savings & Trust Company; that this course of management of the estate continued from 1927 until 1935, and the estate dwindled and shrunk in value from $240,000 to less than $100,000, causing a loss of approximately $137,000; and the income of the estate dwindled or shrunk from an annual income of around $17,000 to less than $3,000.

(1) It is further alleged that many thousands of dollars were unlawfully paid or wasted as executor's fees, attorney's fees, and other unlawful expenses in the wasteful administration of the assets of the estate in Ohio; (2) the unlawful investment by the administrator of $16,000 in land certificates which depreciated to a value of $7,000; (3) the administrator unlawfully invested large sums of money belonging to the estate in various stocks in different corporations, resulting in heavy losses to the estate; (4) the estate was susceptible of being closed within twelve months, but he unlawfully prolonged the administration thereof for a period of eight and one-half years, and the assets depreciated in value and became worthless; (5) losses occurred by the failure of the administrator to collect notes due the estate; (6) that Florida properties were by the administrator neglected and mismanaged; (7) the real estate in Ohio was neglected and mismanaged by the administrator, causing heavy losses to the estate; (8) the administrator paid large sums in real estate and inheritance taxes to the State of Ohio; (9) the acts and doings complained of on the part of the administrator are illegal; (10) the law determines the powers of an administrator c. t. a. as distinguished from the power conferred on the trustee under the terms of the will; (11) the order of discharge of the administrator dated November 23, 1936, entered by the County Judge of Volusia County, Florida, is illegal and void and is not a substantial compliance with Section 5555, C.G.L.; (12) the annual reports of the administrator to the County Judge's Court disclose expenditures of the assets of the estate and violate Section 5555, C.G.L.; (13) Section 5555, C.G.L., requires a sixty day published notice of the application of final discharge and such notice, as shown by the record, was not given prior to November 23, 1936; (14) the published notice as given in 1932 was legally insufficient to sustain the order of discharge entered in November, 1936; (15) there was not a true and faithful accounting by the administrator of all the assets of the estate required by Section 5555, C.G.L.; (16) the prayer sought general and special relief.

We have held that invalid orders in probate are subject to attack in manner, viz: (1) by direct appellate proceedings; (2) by petition for certiorari; (3) by a bill in equity. See American Surety Co. v. Andrews, 152 Fla. 638, 12 So.2d 599; McBride v. McBride, 142 Fla. 663, 195 So. 602, 128 A.L.R. 531; Carroll v. Carroll, 127 Fla. 226, 172 So. 916; Grant v. Amiker, 120 Fla. 356, 162 So. 712; Ex parte Hansen, 120 Fla. 333, 162 So. 715; Link v. Friou, 116 Fla. 337, 156 So. 719; Allen v. Allen, 111 Fla. 733, 150 So. 237; Cole v. Cole, 106 Fla. 226, 143 So. 235; First Trust & Savings Bank v. Henderson, 101 Fla. 1437, 136 So. 370; Opitz v. Morgan, 68 Fla. 469, 67 So. 67; Benedict v. Wilmarth, 46 Fla. 535, 35 So. 84, 4 Ann.Cas. 1033 ;Deans v. Wilcoxon, 25 Fla. 980, 7 So. 163; Sanderson v. Sanderson's Adm'rs, 17 Fla. 820; Ritch v. Bellamy, 14 Fla. 537; Smith v. Smith, D.C., 210 F. 947; Glover v. Brown, 32 Idaho 426, 184 P. 649; Schmitz v. Martin, 149 Minn. 386, 183 N.W. 978; Boulton v. Scott's Adm'rs. 3 N.J.Eq. 231.

Grounds of the motion to dismiss are, viz: (1) the jurisdiction of the controversy is in the Volusia County Courts; (2) the suit is not transitory in nature but in rem; (3) the jurisdiction to adjudicate an accounting is not in Hillsborough County Courts but in the Volusia County Courts; (4) the orders of discharge entered by the Court of Volusia County are conclusive; (5) the orders of discharge entered by the Volusia County Courts cannot be inquired into by the Hillsborough County Courts; (6) the matters sought to be litigated have previously been adjudicated; (7) the facts alleged fail to charge fraud, accident, surprise, mistake or excusable neglect; (8) plaintiffs are barred by laches; (9) the orders of discharge entered in Volusia County, Florida, cannot be relitigated in this Court; (10) the bill is without equity; (11) this Court is without jurisdiction; (12) other grounds of the motion are embraced in those stated supra.

The law in force applicable to the administration of estates, prior to the effective date of Chapter 16103, Acts of 1933, F.S.A. § 731.01 et seq., commonly known as the Probate Act, is here controlling. Section 5555, C.G.L., provides, among other things, for the making of final returns by an executor or administrator and obtaining an order of discharge as such executor or administrator upon a lawful application therefor to the County Judge. Section 5555, supra, outlines the procedure observable both by an applicant seeking a discharge and a County Judge prior to the approval of the final accounts and the entry of an order discharging the executor or administrator; (1) the application for a discharge must affirmatively show 'that sixty days' notice of such intended application has been given' and that such notice of application was 'published once each week in a newspaper in the County where the letters were granted'; (2) it must affirmatively appear from an examination of the reports and accounts as presented to the County Judge that the applicant (executor or administrator) has faithfully...