Sessions v. Willard
| Decision Date | 15 January 1937 |
| Citation | 172 So. 242,126 Fla. 848 |
| Parties | SESSIONS et al. v. WILLARD et al. |
| Court | Florida Supreme Court |
Rehearing Denied Feb. 12, 1937.
Suit by Marion B. Sessions and others against T. E. Willard, as administrator of the estate of Alice R. Willard, deceased and another. From a decree dismissing the bill, plaintiffs appeal.
Reversed. Appeal from Circuit Court, Duval County; De Witt T. Gray, judge.
Bedell & Bedell, of Jacksonville, for appellants.
Daniel & Thompson and Austin Miller, all of Jacksonville, for appellees.
Alice R. Willard of Jacksonville, Fla., died intestate in November 1926, leaving as heirs and distributees one sister and a number of nephews and nieces. In January, 1926 M. H. Haughton was appointed administrator of her estate, which consisted of a house and lot on Adams street, some unimproved lots, one of which was under contract of sale, cash in the sum of $716.04 three mortgage notes aggregating $5,500, and some jewelry. Haughton acted as administrator until April, 1931, during which time he collected the amounts due on the mortgage notes, the amount due on the lot that was under contract of sale, and the rent for the use of the house and lot on Adams street.
From the amounts so collected, he paid the funeral expenses, cost of administration, taxes on the real estate, repair and general upkeep on the Adams street property and made distribution to the heirs and distributees aggregating $6,100. In April, 1931, Haughton filed his application in the probate court of Duval county to be discharged as administrator, and as part of such application he included a statement of his account showing that he had on hand $12.20 in cash and that there was due by him as administrator to the estate the sum of $2,080.74.
His discharge was promptly granted, and T. E. Willard was appointed administrator de bonis non in his stead. Willard qualified and acted as administrator until November, 1932, when he filed his resignation as such with the probate court, but it was not accepted and stands unrevoked to this date. As a part of his qualification as administrator d. b. n., Willard posted a bond in the penal sum of $3,000 with Globe Indemnity Company as surety. Both are parties defendant to this suit.
Haughton delivered the jewelry and the $12.20 in cash held by him as administrator to Willard. Willard then instituted an action at law against the surety on Haughton's bond to recover the sum of $2,080.74 shown by his final report to be due the estate. Soon after the action was brought, the surety company (United States Fidelity & Guaranty Company) in full settlement of said claim paid Willard as administrator the sum of $2,059.41. Willard reported this sum to the probate court as assets of the estate, and as administrator, for prosecuting and settling the claim, he claimed attorneys' fees and costs which were allowed him by the court.
As administrator, Willard collected rents on the Adams street property in the sum of $1,050, and from these rents and other amounts received as administrator, he made repairs on the Adams street property, paid taxes on the real estate, fees to the rental agent, paid the premium on his bond as administrator, and paid himself for services in managing the estate. He reported the rents collected as assets of the estate, and in his reports to the probate judge claimed payment for repairs, taxes, commissions to rental agent, and premium on his bond as administrator of the estate.
The appellant Sessions, being one of the distributees, objected to the final report of Willard as administrator, but the probate judge audited and stated the account of Willard as revealed by his final report to show a balance chargeable to him of $1.944.63 in favor of the estate. Willard as administrator filed a petition for rehearing on the probate judge's findings and for restatement of the account, but both were denied, and neither the account stated nor the order of the judge was ever appealed from or modified.
Prior to the death of the intestate, M. H. Haughton was guardian of her estate, and as such had possession and control of her real estate. He was authorized to sell the latter subject to confirmation by the court. At the time of her death, he was in possession of her property, collecting rents therefrom, and following her death, having been appointed as administrator of her estate, he continued to collect the rents. When Willard was appointed administrator, he collected the rents from the Adams street property, and both administrators reported the said rents as assets of the estate in all their accounts filed with the probate judge, and all accounts paid from said funds were paid as administrator without objection on the part of the heirs and distributees.
In July, 1932, the appellant, Sessions, alleging unequal distribution among the distributees, filed a petition in the probate court for supplemental distribution from the assets of the estate to equalize distributions previously made. After hearing and consideration, the court decreed that Willard, as administrator, forthwith pay and distribute $900 to the various heirs, including $450 to Sessions. It is alleged that these payments have not been made, though the order remains in force and effect.
It is shown that the plaintiff Theodore H. Willard, Jr., was born March 17, 1911, and did not attain his majority until March 17, 1932, that the jewelry belonging to the estate has never been sold or distributed, but continues in possession of Willard as administrator, that the debts of the intestate have been paid and the time for filing claims against her estate under the law long since passed, and that Willard as administrator has failed and refused to distribute the amount found by the probate judge to be due.
This suit was instituted by a portion of the heirs and distributees and, after reciting the foregoing facts, the bill prayed that T. E. Willard be required to account for the assets of the estate coming into his hands and that the court determine the distributive shares to which the plaintiffs are entitled, making allowance for inequalities in previous distributions. Globe Indemnity Company was named as a party defendant. Both defendants moved to dismiss the bill on the ground that the funds for which plaintiffs seek accounting were not part of the administrable estate of Alice R. Willard, but were rents from real estate and property of the heirs, that no relief can be obtained therefor except against T. E. Willard in his personal capacity, that the bill does not make T. E. Willard liable personally, and that Globe Indemnity Company was not a proper party to the bill. Both motions to dismiss were overruled and answers were filed denying the material allegations of the bill and interposing the same defense as that contained in the motions to dismiss.
A special master was appointed who took testimony and found (1) That the suit was brought against Willard solely in his representative capacity and that no judgment can be rendered against him personally; (2) of the funds of the estate handled by the administrators, more than the balance charged against Willard was derived from rents from real estate, and, being so, it will be presumed that the payment of all claims and distributions were made from the proceeds of personal assets of the estate and that the balance sought to be charged against the administrator, Willard, was rents from real estate to which he had no legal right and for which the surety is not liable; and (3) the order of the probate judge...
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Cartall v. St. Louis Union Trust Co.
... ... part of the estate in his possession or control in his ... capacity as executor or administrator. Sessions v ... Willard, 172 So. 242; Wiseman v. Swain, 114 ... S.W. 145; Second Natl. Bank v. Ford, 123 S.W.2d 867; ... Colburn v. Broughton, 9 ... ...
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Van Dusen v. Southeast First Nat. Bank of Miami
...that Eastern owned the common law copyright. We hold that Southeast Bank is estopped from raising this defense. See Sessions v. Willard, 126 Fla. 848, 172 So. 242 (1937) (an executor who takes custody of property in his representative capacity is thereafter estopped to deny that it is prope......
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Baskin v. Montedonico
...service on Montedonico in his individual capacity invalidates the judgment against him falls. On the Florida law, Sessions v. Willard, 1937, 126 Fla. 848, 172 So. 242, 245, rules directly against defendant's contention. There, the Supreme Court of Florida upheld judgment against a defendant......
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Baskin v. Montedonico
...is valid in Florida, we have no doubt, and the court below so concluded upon a consideration of Florida authorities. Sessions v. Willard, 126 Fla. 848, 172 So. 242; State ex rel. v. Southerland, 106 Fla. 103, 142 So. 883; Epstein & Bro. v. First Nat. Bank, 92 Fla. 796, 110 So. 354, 356; but......