Powell v. Cocowitch
| Decision Date | 13 March 1957 |
| Citation | 94 So.2d 589 |
| Parties | Nellie Cocowitch POWELL and Clifford J. Cocowitch, Appellants. v. Susie May COCOWITCH, Clyde C. Long, The Commercial Bank and Trust Company of Ocala, Edna Cocowitch Merriken, Ida Cocowitch Treadwell, Harry C. Cocowitch, and Mamie Cocowitch Young, Appellees. |
| Court | Florida Supreme Court |
Ervin & Buford, Tallahassee, for appellants.
Greene, Ayres & Greene, Ocala, for appellees.
John Franklin Cocowitch, citizen of Marion County, died testate in January 1944. He left surviving his widow, Susie May Cocowitch, and six children, Nellie Cocowitch Powell, Clifford J. Cocowitch, Edna Cocowitch Merriken, Ida Cocowitch Treadwell, Harry C. Cocowitch and Mamie Cocowitch Young. In his will, probated a few days after his death, disposing of a valuable estate John Franklin Cocowitch named his widow and Clyde C. Long, vicepresident, trust officer and stockholder of Commercial Bank and Trust Company of Ocala, Florida, as executors of his estate. The will directed the executors and trustees to convert into cash 'as soon as may be feasible and desirable' all of the property of the estate, pay all costs of administration and other expenses, then distribute the income and principal in equal shares among the widow and children and pay to the widow at monthly or quarterly intervals 'during the period of preliminary administration of my estate' moneys for her supports, such amounts not to be charged to her oneseventh share. The will clothed the trustees with broad powers to sell, invest and reinvest at their discretion but not to unduly prolong the administration and final distribution of the estate.
This suit was brought by Nellie Cocowitch Powell and Clifford J. Cocowitch against the widow, the other four children, Clyde C. Long and the Commercial Bank and Trust Company as defendants. The complaint, later amended, prayed that the present trustees of the estate be removed and that others be appointed in their stead, direct the trustees to pay into the corpus of the estate all unauthorized and misappropriated amounts, naming them, direct the new trustees to forthwith declare a substantial dividend from cash on hand, reserving only such funds as may be essential to pay incidental expenses, enter a judgment in favor of the new trustees against Susie May Cocowitch, Clyde C. Long and the Commercial Bank and Trust Company for all sums found to be due from them to the corpus of the estate, allow a reasonable attorneys' fee from the corpus of the estate for plaintiffs' attorneys and for other relief.
In their answer defendants denied the material allegations of the complaint as amended and moved to dismiss. The cause was set for final hearing and disposition on plaintiffs' motion for summary final judgment, including all pending motions which had reference to allegations and admissions in the amended complaint, including concessions, waivers or admissions made by plaintiffs at the hearing.
On consideration the chancellor made the following findings:
'That Plaintiffs' counsel took occasion during his argument to withdraw specifically and finally any and all charges of intentional wrongdoing or bad faith on the part of the defendant trustees.'
By letter dated December 7, counsel for plaintiffs made the following waivers:
'I wish to waive or amend plaintiffs' prayer for relief contained in their Amended Bill of Complaint in the following respects:
'1. Plaintiffs waive relief prayed for in paragraphs (b)(1) and (b)(3).
'2. Plaintiffs amend or reduce the sum stated in paragraph (b)(2) from $8,056.41 and interest to $7,340.81 and interest, and they to waive relief prayed for in said paragraph in excess of the figure last above stated, together with interest.
'3. Plaintiffs waive any claim for relief against the defendant The Commercial Bank and Trust Company of Ocala and consent to an order dismissing said defendant as a party.
'4. Plaintiffs waive their prayer for the actual removal of defendants Susie May Cocowitch and Clyde C. Long as trustees but do not waive any claim for relief prayed against said defendants except and unless herein otherwise specifically stated.
We think as did the chancellor that waivers removed much of the substance of the prayer for relief. Under the will the trustees had broad discretion in handling all the affairs of the estate, paragraph 4 being as follows
Other provisions of the will released the executors or trustees from any liability for loss that may be occasioned by any act or acts done pursuant to the provisions of the will including misfeasance or nonfeasance not amounting to bad faith or wilful wrongdoing. There is no charge of bad faith or wilful wrongdoing that we can find support for in the record. In fact, for all the record shows it looks as if the trustees made an earnest attempt to administer the estate faithfully. The original and the amended complaint were accordingly dismissed and this appeal was prosecuted.
Appellants contend (1) that their amended complaint as modified by letter of attorney dated December 7 stated a cause of action and that the chancellor committed error in granting the motion to dismiss; (2) plaintiffs' motion for summary final...
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