Sale's Estate, In re

• Decision Date: 24 September 1969
• Docket Number: No. 38101,38101
• Citation: 227 So.2d 199
• Parties: In re ESTATE of Henrietta S. SALE, Deceased, for the use and benefit of the Chicago Insurance Company.
• Court: Florida Supreme Court

Page 199

227 So.2d 199

In re ESTATE of Henrietta S. SALE, Deceased, for the use and benefit of the Chicago Insurance Company.

No. 38101.

Supreme Court of Florida.

Sept. 24, 1969.

Rehearing Denied Nov. 5, 1969.

Samuel W. Harris, of Bogue, Harris, Brahm & Daniel, St. Petersburg, for curator of the estate of Henrietta S. Sale, deceased.

Lemuel S. Hunnicut, St. Petersburg, for The Chicago Ins. Co., appellant.

Tom E. Gilman, of Horne, Rhodes & Lamb, Tallahassee, for appellees.

ROBERTS, Justice.

This appeal has been transferred from the District Court of Appeal, Second District, to this court on account of a constitutional question presented by the appellant. Jurisdiction of the appeal attaches under Section 4, Article V, Florida Constitution, F.S.A.

The questions presented on the appeal arose in a proceeding instituted in the County Judge's Court of Pinellas County, Florida, for the probate of a 1960 will executed by Henrietta S. Sale, deceased, and for the appointment of an administrator Cum testamento annexo of her estate. One of the subscribing witnesses to the 1960 will stated in a deposition that the 1960 will had been superseded by a later will to which the deponent had been a subscribing witness also. Accordingly, the Probate Judge denied the petition of The First National Bank in St. Petersburg, Florida, for appointment as administrator c.t.a. of the estate under the 1960 will and, instead, appointed the Bank as Curator for the protection and preservation of the assets of the estate, as authorized by § 732.21, Florida Statutes, F.S.A., pending a search for the later will. His order directed the Bank to search for the later will and, in addition, 'to publish Notice to Creditors as provided by law for all estates.'

Mrs. Sale had met her death in October of 1966 as a result of an automobile accident that also took the life of her husband. Two other passengers in the car, the appellees here, were injured. They filed their respective claims against Mrs. Sale's estate within the six-month period prescribed by § 733.16(1), Fla.State., F.S.A., to recover for their injuries sustained in the accident allegedly caused by Mrs. Sale's gross nigligence in operating the car. Objections to their claims were timely filed by the Bank, as Curator. The appellees--residents of the State of Virginia--then filed suit in the Federal District Court for the Northern District of Florida against the Bank, as Curator, to enfore their claims against the estate. Their suit was filed two months and one day after the receipt of the Curator's objections by one appellee, and two months and two days after the receipt thereof by the other. Under § 733.18(2), Fla.Stat., F.S.A., a claimant is limited to two months after receipt of the objection within which to file suit upon his claim unless an extension is granted by the county judge 'for good cause shown'. Relying on this statute, the Curator filed in the estate proceedings a petition alleging that the suits were not timely filed and that the claims filed in the estate should be 'abated' and the estate 'absolved' of any liability that might accrue by virtue of the suits pending in the federal district court. The appellees responded with a motion for an extension of time for filing suit. The grounds alleged therein as 'good cause' for such extension are discussed in detail hereafter. The motion of the appellees was denied and that of the Curator was granted.

Thereafter, on rehearing granted, the County Judge entered an amended order, again denying appellees' motion for an extension of time for filing suit, but finding also that at the time of the accident Mrs. Sale was covered by an automobile liability policy issued by Chicago Insurance Company and holding that, to the extent that the appellees' claims were covered by such insurance, they were enforceable against the decedent's estate. This holding was based on § 733.16(1)(d), Fla.Stat.1967, F.S.A., effective August 4, 1967, providing, in effect, that to the extent that a claim or demand is covered by insurance, it is not barred by failure to file a claim therefor against the estate within the six-month period prescribed by § 733,16(1), Fla.Stat., F.S.A. The amended order expressly held that the application of this statute to the appellees' claims did not impair the obligation of the insurer's contract. It is this order that we review on appeal.

On the appeal, the Curator, on behalf of the insurer, has attacked that portion of the order holding that § 733.16(1)(d), supra, is applicable to a claim based on a cause of action that accrued in 1966 under a pre-existing contract, its contention being that the statute as so applied impairs the obligation of the insurance contract contrary to Section 17, Declaration of Rights, Florida Constitution, and Section 10, Article I, of the federal constitution. The appellees have cross-assigned as error or that portion of the amended order denying to them an extension of time for filing suit on their timely filed claims. Since we have the view that the appellees' point is well taken, we need not decide the constitutional question under the well-settled rule that such a question ordinarily will be decided only when necessary to a disposition of the cause. See Mayo v. Market Fruit Co. of Sanford, Fla.1949, 40 So.2d 555, 559.

Since the decision authored by Mr. Justice Whitfield in In re Jeffries' Estate, 1938, 136 Fla. 410, 181 So. 833, it has been settled that the time limitations prescribed by § 733.18 for the filing of objections to claims against the estate and for filing an appropriate action or suit upon any such claim operate merely as rules of judicial procedure and not as statutes of non-claim. These time limitations may be relaxed, within the sound discretion of the probate judge, even though the time limit may have expired prior to the filing of the motion for extension. In re Goldman's Estate, Fla.1955, 79 So.2d 846. The discretion to be exercised by the probate judge is a Reasonable discretion--not one that is arbitrary or absolute. Smoak v. Graham, Fla.1964, 167 So.2d 559, 562. As stated by Mr. Justice Whitifield in In re Jeffries' Estate, supra, 181 So. at p. 837:--

'The statute should be interpreted And applied so as to facilitate the settlement of estates in the interest of the public welfare, without unreasonably or unduly restricting the rights of creditors of such estates who in good faith and without laches endeavor to comply with the substantial and essential requirements of the statute in order that right and justice 'shall be administered' by due course of law as commanded by section 4 of the Declaration of Rights of the Florida constitution.' (Emphasis added.)

The decisions applying the statute have been based on the peculiar facts and circumstances of each case; however, it has been held in more than one case that circumstances indicating that the claimant has been lulled into a false sense of security by representations or actions of the personal representative of the estate, his agent or attorney, constitute 'good cause' for an extension of time under the statute. See Sessions v. Jelks, Fla.App.1st 1967, 194 So.2d 307; In re Estate of Norregaard, Fla.App.3d 1969, 220 So.2d 653; cf. In re Kamp's Estate, Fla.App.1st 1965, 177 So.2d 757. And in In re Meigs' Estate, Fla.App.1st 1965, 177 So.2d 246, it was held that informal discussions with the probate judge had the effect of lulling the personal representative into a false sense of security, so that it was not error to grant an extension of time for filing objections to claims.

We think that the facts of the instant case bring it within the above rule. As noted, the Bank was appointed as Curator of the estate and not as personal representative. While a Curator may, by special order of the probate judge, be authorized to perform any duty or function of the personal representative, § 732.21(3), Fla.Stat., F.S.A., a Curator is ordinarily appointed only as a temporary expedient to take possession of and preserve the assets of the estate until a personal representative may be appointed; or, conceivably, after an estate is ready for distribution and an heir is missing, to take possession of and preserve the share of the estate to which such heir is entitled, pending a search for him and his heirs. The word 'curator' itself--having as synonyms the words 'guardian, custodian, superintendent, keeper', according to Soule's Dictionary of English Synonyms--makes this abundantly clear.

In it not ordinarily or reasonably to be expected that a Curator will obtain special orders to proceed with the administration of an estate just as though he were the duly appointed personal representative--especially where, as here, no will had ever been admitted to probate. Nevertheless, the order appointing the Bank as Curator did authorize the Bank to publish the notice to creditors. This the Bank did, the first such publication being January 24, 1967. The claims of the appellees were filed in the estate on June 23, 1967, and July 6, 1967. On July 13, 1967, the Bank filed its petition as Curator for authority to file Objections to the...