Maiden v. Carter

• Decision Date: 07 April 1970
• Docket Number: No. M--127,M--127
• Citation: Maiden v. Carter, 234 So.2d 168 (Fla. App. 1970)
• Parties: Don R. MAIDEN, Jr., as the Executor of the Estate of Sara Howarth Maiden, M.D., deceased, and Don R. Maiden, Jr., and William S. Maiden, individually, Appellants, v. Catherine H. CARTER, Mary S. Howarth, Trustee of the Howarth Trust, et al., Appellees.
• Court: Florida District Court of Appeals

Page 168

234 So.2d 168

Don R. MAIDEN, Jr., as the Executor of the Estate of Sara Howarth Maiden, M.D., deceased, and Don R. Maiden, Jr., and William S. Maiden, individually, Appellants, v.Catherine H. CARTER, Mary S. Howarth, Trustee of the Howarth Trust, et al., Appellees.

No. M--127.

District Court of Appeal of Florida, First District.

April 7, 1970.

Rehearing Denied May 15, 1970.

R. Diane Burlingham(Bennett), DeLand, for appellants.

Sidney H. Taylor, DeLand, and W. J. Gardiner, Daytona Beach, for appellees.

WIGGINTON, Judge.

Appellants, who were third-partyplaintiffs in the trial court, seek review of a final judgment dismissing with prejudice their amended third-party complaint brought against appellee, Mary S. H. Parker.The complaint was dismissed on the ground that it fails to state a cause of action.

This proceeding involves the estate of Casper Howarth who died testate in Volusia County on March 14, 1933, by whose will his wife, Mary S. Howarth, was named executrix.Surviving heirs and beneficiaries under the will of Casper Howarth were his wife and three daughters, Catherine H. Carter, Mary S. H. Jacobs, and Sara Howarth Maiden.

From the allegations of the original complaint and answer thereto filed by appellant third-partyplaintiffs the following situation appears.Upon Casper Howarth's death his wife, Mary S. Howarth, qualified, was appointed, and served as executrix of his estate.She managed the estate in a careless and wasteful manner, intermingling estate funds with those of her own, dissipating the estate by improvident investments, unauthorized gifts of estate property, and making loans without security or hope of repayment.At a later period she procured a release from her three adult daughters of all claims they had against the estate on the pretext that such was necessary in order to enable her to establish a trust into which all remaining estate property would be conveyed and which trust would be managed for the benefit of and distributed to the surviving heirs at times and under terms and conditions agreeable to the beneficiaries.Such trust was ultimately formalized by the execution of a trust document.Mary S. Howarth, who was designated as trustee, continued to mismanage and dissipate the assets of the trust just as she had done while acting as executrix of the Casper Howarth estate and was continuing such course of conduct at the time this action was commenced.

The third-party complaint was brought by appellants who are the sole surviving heirs and executor of the estate of Sara Howarth Maiden, deceased, and grandsons of Casper Howarth, deceased.They joined as third-party defendantMary S. H. Parker, the daughter of Mary S. H. Jacobs and granddaughter of Casper Howarth, deceased.The compaint alleges that at some unspecified time in the past defendant Parker received from the Casper Howarth estate an undisclosed sum or sums of money or other assets to which she was not entitled and to which she had no lawful claim.The complaint alleges the legal conclusion that although defendant Parker was not a beneficiary of the estate of Casper Howarth, nevertheless a fiduciary relationship existed between her and the plaintiffs by reason of which the defendant was legally obligated to render an accounting of the assets received by her from the Casper Howarth estate, and to pay over to the plaintiffs such portion thereof as they are entitled to as beneficiaries of the estate of Casper Howarth, deceased.The complaint contains no allegations of fact which are sufficient in law to establish a fiduciary relationship between plaintiffs and defendant other than the facts hereinabove mentioned.The complaint prays that the court enter its order requiring the defendant to furnish an accounting of all assets wrongfully received by her from the Casper Howarth estate, and to distribute to the plaintiffs such portion of such assets to which plaintiffs are lawfully entitled.

The primary question presented by this appeal is whether the trial court erred in holding that the amended third-party complaint so fails to state a cause of action as to require its dismissal with prejudice.It is a fundamental principle of pleading that the complaint, to be sufficient, must allege ultimate facts as distinguished from legal...