Schilling v. Biggs
| Decision Date | 21 February 1933 |
| Citation | 108 Fla. 351,146 So. 559 |
| Parties | SCHILLING et al. v. BIGGS et al. |
| Court | Florida Supreme Court |
En Banc.
Suit by Fred E. Biggs and another, copartners doing business under the name of Biggs & Masser, against Louis M. Schilling and Sophie M. Schilling, his wife. The first-named defendant having died, a motion to revive the suit and proceed with it as one against deceased's heirs and against his wife as administratrix was granted, and the administratrix and heirs appeal.
Affirmed. Appeal from Circuit Court, Duval County; George Couper Gibbs, judge.
C. B Peeler, of Jacksonville, for appellants.
Harry Katz and Damon Yerkes, both of Jacksonville, for appellees.
Suit was brought in chancery in the circuit court of Duval county to enforce a mechanic's lien against certain property alleged to be owned by one of the defendants, Louis M Schilling. Mrs. Schilling was made a joint party defendant. While the suit was in progress, Mr. Schilling died. Thereafter Mrs. Schilling duly qualified as administratrix of her husband's estate and gave the notices required by law to be given to all creditors to present their claims within one year, or be barred from enforcing them. The claim in suit was not presented to the administratrix or filed in the office of the county judge, as required by sections 5597, 5598, C. G. L., section 3732, R. G. S., as amended. But complainants, within the time limited by law for the presentation of claims against the Louis M. Schilling estate, did obtain an order from the chancellor granting complainants leave to make the heirs of Louis M. Schilling deceased, parties to the cause, and to amend the bill of complaint for that purpose. Thereafter this was followed up by a motion to revive the suit and proceed with it as one against the administratrix and the heirs of the deceased defendant, Louis M. Schilling. The chancellor granted the motion to revive over the objections of the administratrix. The appeal is from that order.
The defendant Louis M. Schilling died on June 23, 1929. Suggestion of his death was filed December 9, 1929. On January 3, 1930, motion for an order of revivor was filed and an order for revivor was made and entered of record in the cause. On July 27, 1932, solicitors for complainant served upon Sophie M. Schilling, who was a defendant in her own right as well as administratrix, notice of a motion to vacate certain orders, to show cause why the suit should not be revived against her as administratrix, and to revive the suit. This motion was objected to by the administratrix who set up in her objections that she had been appointed and qualified as administratrix on May 2, 1930, had duly given and published notice in writing to all who had claims against the deceased, to present same within one year; that although more than two years had elapsed since the issuing of letters of administration on the estate of the deceased, that complainants' claim had not been sworn to and filed in the office of the county judge as required by law, and was therefore barred. The objections so made were supported by evidence attached thereto. All of the objections were overruled and a motion to dismiss the suit was denied by the chancellor.
The purpose of the statute requiring the presentation of claims against estates of deceased persons is merely to secure the establishment of the justness of all claims and to facilitate an expeditious settling of the estate. First Trust & Savings Bank v. Henderson, 101 Fla. 1437, 136 So. 370. It is also established in this state that a party having claims or demands against the estate of an intestate must presume some course to present them, as mere knowledge on the part of the representative of the estate of the existence of the claims or demands is not sufficient to constitute a waiver, although there may be a legal waiver of the required presentation under certain conditions and circumstances. State Bank of Orlando & Trust Co. v. Macy, 101 Fla. 140, 141, 133 So. 876, 78 A. L. R. 1119.
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...remedy for the collection of such claims. See Fields v. Mundy's Estate, 106 Wis. 383, 82 N.W. 343, 80 Am.St.Rep. 39. In Schilling v. Biggs, 108 Fla. 351, 146 So. 559, was held that: 'Claims against estate must be timely presented; representative's knowledge of existence of claims not consti......
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