Moskovits v. Moskovits
| Decision Date | 09 June 1959 |
| Docket Number | No. B-72,B-72 |
| Citation | 112 So.2d 875 |
| Parties | Louis MOSKOVITS, individually and as Executor of the Estate of Sidney Moskovits, Deceased, Mrs. Ann Jones and Miss Cecil Moskovits, Appellants, v. Louise MOSKOVITS, Appellee. |
| Court | Florida District Court of Appeals |
Gillespie & Gillespie, New Smyrna Beach, and Hall, Sweeny & Godbee, DeLand, for appellants.
Raymond, Wilson, Karl & Fink, Daytona Beach, for appellee.
This is an interlocutory appeal by which defendants seek review of an order denying their motion to dismiss and strike a complaint in chancery.
The complaint is brought by the widow of a deceased testator and contains allegations which may be summarized as hereinafter set forth.
After testator's death his will was duly admitted to probate, and defendant Louis Moskovits was appointed and is now serving as executor thereof. The will excludes the widow from its benefits and names defendants as the sole beneficiaries thereunder.
During their marriage plaintiff was forced to separate from testator due to his misconduct. During the period of their separation testator executed the will in question, after which he sought to effectuate a reconciliation with plaintiff and obtain her forgiveness for his marital misconduct. As an inducement for such reconciliation and forgiveness, he promised and assured plaintiff that the mentioned will would be revoked. As a consequence, a reconciliation was effected and thereafter the testator assured plaintiff that the will had been revoked, and in the event of his death she would be well provided for.
Prior to his death the testator, together with defendants, were members of a partnership as evidenced by a written agreement, copy of which is attached to the complaint. Notwithstanding the provisions of the agreement, testator owned all or one-half of the partnership assets, and defendants were intended to have only a one-fourth interest each in the earnings or profits derived from the operation of the partnership business.
During his lifetime testator reposed great trust and confidence in defendants, all of whom were not only his blood kin but also his business associates. Defendants were permitted to handle large sums of money belonging to testator, and he also placed in them title to bonds and other assets to be held for him in trust.
The inventory filed by the executor fails to show any proper determination as to the value of the partnership interest owned by the estate, and no proper accounting has been made between the estate and the surviving partners. In addition, the property held by defendants in trust for testator has never been accounted for nor inventoried as assets of the estate.
The executor has unlawfully conveyed to himself as an individual all of the estate's interest in the partnership assets, as well as its interest in certain designated shares of capital stock in which the executor claimed to own an undivided one-half interest.
Plaintiff asserts that the extent and value of her dower interest in testator's estate depends in part upon a proper determination of the estate's interest in the partnership assets, and an accounting by defendants for the assets wrongfully withheld by them.
The complaint prays for the appointment of an administrator ad litem to represent the estate during this litigation; that a prompt, proper and full accounting be had of all the partnership affairs and the true nature, extent and fair value of the estate's interest in the partnership be fixed and determined. It is further prayed that defendants be required to disclose and account for all assets owned by the estate and held by them in trust for the testator, and that the value of such assets be fixed and determined. It is prayed that upon final hearing the sales of estate assets made by the executor to himself individually be declared void and set aside, that the purported last will and testament of the testator he equitably revoked, and that a constructive or resulting trust be imposed upon all parties received by defendants from the estate as purported beneficiaries thereof.
To the complaint defendants filed a motion to dismiss and to strike the material portions thereof. The executor filed a separate objection to the appointment of an administrator ad litem. Defendants also filed a pleading entitled 'Supplemental Answer with Motion to Dismiss' although the record does not disclose that an original answer had theretofore been filed in the cause.
The foregoing defensive pleadings consist almost wholly of allegations which assert the defenses of res adjudicata, estoppel by judgment or equitable estoppel, all of which will more fully appear from the proceedings in connection with the administration of decedent's estate in the County Judge's Court of Volusia County, of which records and proceedings the movant asks the chancellor to take judicial notice. The so-called supplemental answer alleges that plaintiff claimed and was awarded dower in decedent's estate by judgment duly entered by the County Judge, copy of which is attached to the answer as an exhibit. It is averred that plaintiff is therefore barred from now seeking revocation of the will as prayed for in her complaint.
By the order here assaulted it is apparent that in his consideration of the several motions made by defendants, the chancellor took judicial notice of and considered the record and proceedings in the County Judge's Court relating to the administration of decedent's estate. This, he was not authorized to do. 1 The order contains multiple conclusions of law on which we will separately comment.
At the outset it must be borne in mind that in considering a motion to strike or dismiss a complaint, all matters well pleaded are admitted as true by the movant. It is also fundamental that unless the complaint clearly shows by its allegations that the relief prayed for is barred by res adjudicata, estoppel by judgment or equitable estoppel, such defenses are not available by motion, but must be specifically pleaded as affirmative defenses to the complaint. 2 Such defenses cannot, as was done in this case, be asserted by allegations of fact stated in the motions, nor can they be established by the introduction of extrinsic evidence at the hearing thereon. 3
Defendants contend on appeal that plaintiff,...
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