Sheldon v. Powell

• Decision Date: 08 April 1930
• Citation: 128 So. 258,99 Fla. 782
• Parties: SHELDON v. POWELL et al.
• Court: Florida Supreme Court

128 So. 258

99 Fla. 782

SHELDON v. POWELL et al.

Florida Supreme Court, Division A.

April 8, 1930

Suit by Cora P. Powell, and others, jointly and severally, and as constituting the S. Cornelia Young Memorial Library, and others, against Robert T. Sheldon, individually and as executor of the estate of Charles A. Young, deceased.

Decree for complainants, and defendant appeals.

Affirmed.

Appeal from Circuit Court, Volusia County; M. G Rowe, Judge.

COUNSEL

Hull Landis & Whitehair, of De Land, and F. W. Pope, of Daytona Beach, for appellant.

Gardiner & Brass, of Daytona Beach, for appellees.

OPINION

TERRELL C.J.

Charles A. Young, of Daytona Beach, Fla. died testate in July, 1919. His last will and testament, among others, carried the following provision:

'I give and bequeath to the S. Cornelia Young Memorial Library, at Daytona Beach, Volusia County, Florida, the sum of fifteen thousand dollars.'

Appellant, as executor of the estate of said Charles A. Young, declined to release the legacy so provided to appellees as representatives of S. Cornelia Young Memorial Library, unless the said appellees would execute a bond to him for his protection. Appellees refused to execute the said bond and brought their bill of complaint as provided by chapter 7857, Acts of 1919, Laws of Florida (sections 4953 and 4954, Compiled General Laws of 1927), praying for an adjudication of their rights under and by virtue of the terms of the said will. There was an answer in which was incorporated a demurrer to the bill of complaint, both of which imposed substantially the same defense. On final hearing the demurrer was overruled and a decree in favor of complainants, appellees here, was entered. Appeal was taken for that decree.

In his appeal, appellant raises two questions which may be stated as follows: (1) If appellees were entitled to any relief whatever, they should have proceeded under section 3735, Revised General Statutes of 1920 (section 5607, Compiled General Laws of 1927), which is exclusive as to such matters as this. (2) Chapter 7857, Acts of 1919, Laws of Florida (sections 4953 and 4954, Compiled General Laws of 1927), under which appellees elected to seek their relief is unconstitutional and void.

Section 3735, Revised General Statutes of 1920, in effect provides that before an executor or administrator shall be compelled to pay over any legacy prior to final settlement of his accounts the legatee shall file a petition before the county judge setting forth the facts which entitle him to the relief prayed for, and the court shall proceed to hear and determine the matter as per rule prescribed therein.

Section 1 and 2 of chapter 7857, Acts of 1919 (sections 4953 and 4954, Compiled General Laws of 1927), authorizing declaratory decrees in this state, are as follows:

'Section 1. That any person or corporation claiming to be interested under a deed, will, contract in writing, or other instrument in writing, may apply by Bill in Chancery to any Court in this State having equity jurisdiction for the determination of any question of construction arising under the instrument and for a declaration of the rights of the person or corporation interested, whether or not further relief is or could be claimed, and such declaration shall have the force of a final decree in chancery.

'Sec. 2. That all proceedings instituted under the provisions of this Act shall be in conformity with the law and rules of court governing other proceedings in Chancery, as far as same may be applicable. And the Supreme Court, in this State is hereby authorized and empowered, whenever it shall be deemed necessary, to prescribe additional rules applicable to proceedings under the provisions of this Act, and to limit or restrict the application of existing rules.'

We think that appellees might have proceeded under section 3735, Revised General Statutes of 1920, to have the legacy brought in question released to them, but we do not think that remedy exclusive. Chapter 7857, Acts of 1919, authorizing declaratory decrees, neither repeals, nor is it incompatible with section 3735, Revised General Statutes of 1920. As to the question involved here, it is merely cumulative, so appellees had their option to pursue either remedy. 9 R. C. L. 957 and 964.

The declaratory judgment or decree is not an American conception. It has its analogue in both the Roman and the English law, and is not new in this country. Developments in the United States during late years have raised it to a place of great importance in our jurisprudence. It has been adopted in twenty-three states of the Union, was adopted in England in 1850, was modified in 1852 and 1858, and has been the law of Scotland and some of the countries of the continent for two hundred years. In some states, like Michigan, the act providing for declaratory relief extends to any action in any court of record, regardless of the right to consequential relief, while in other states it, in terms, extends only to cases involving an actual controversy in which consequential or coercive relief may be granted. In its original conception it was concerned only with questions of status or property rights connected therewith, and the construction of wills and other legal instruments, while at this time, as to subject-matter, its field of operation is almost unlimited.

The Michigan act authorizing declaratory judgments was held unconstitutional by the Supreme Court of that state because, as the court said, it imposed powers not judicial on the judiciary, that is to say, it attempted to require the courts of that state to decide moot or controversial questions, and to make them the authorized legal advisers of the people. Anway v. Grand Rapids Railway Co., 211 Mich. 592, 179 N.W. 350, 12 A. L. R. 26 and note 52; see, also, 19 A. L. R. 1124.

Dicta in several cases decided by the Supreme Court of the United States may be taken as a suggestion that the federal courts cannot be legally authorized to enter declaratory judgments. Liberty Warehouse Co. v. Grannis, 273 U.S. 70, 47 S.Ct. 282, 71 L.Ed. 541; Liberty Warehouse Co. v. Burley Tobacco Growers' Co-operation Marketing Association, 276 U.S. 71, 88, 48 S.Ct. 291, 294, 72 L.Ed. 473; Willing v. Chicago Auditorium Association, 277 U.S. 274, 48 S.Ct. 507, 509, 72 L.Ed. 880. The dicta in these cases appears to have been prompted by the construction given by that court to the words 'cases' and 'controversies,' as used in section 2 of article 3 of the federal Constitution. Muskrat v. United States, 219 U.S. 346, 31 S.Ct. 250, 55 L.Ed. 246.

In the Muskrat Case it was held that by reason of the terms of section 2 of article 3 of the federal Constitution the exercise of judicial power by the federal courts was limited to 'cases' and 'controversies,' as used in that instrument. This rule, if approved and adopted by the federal court when squarely presented, is not necessarily binding on the courts of this state, because there is no similar provision in our Constitution and its provisions defining the jurisdiction of our courts would admit of no such interpretation. This view is amply supported by decisions in other jurisdictions. At the time of the dicta in the federal cases at least eight of the twenty-three states having statutes providing for declaratory relief had held them valid. State v. Grove, 109 Kan. 619, 201 P. 82, 19 A. L. R. 1116; Blakeslee v. Wilson, 190 Cal. 479, 213 P. 495; Miller v. Miller, 149 Tenn. 463, 261 S.W. 965; In re Kariher Petition No. 1, 284 Pa. 455, 131 A. 265; Patterson's Executors v. Patterson, 144 Va. 113, 131 S.E. 217; Board of Education of Rochester v. Van Zandt, 234 N.Y. 644, 138 N.E. 481; Braman v. Babcock, 98 Conn. 549, 120 A. 150; McCrory Stores Corporation v. S. M. Braunstein Inc., 102 N. J. Law, 590, 134 A. 752. The federal case of Fidelity National Bank & Trust Co. of Kansas City et al. v. Swope et al., 274 U.S. 123, 47 S.Ct. 511, 71 L.Ed. 959, and cases there cited, may be construed as upholding the principle as announced by the foregoing state courts. See, also, Old Colony Trust Co. v. Commissioner of Internal Revenue, 279 U.S. 716, 49 S.Ct. 499, 73 L.Ed. 918. A wealth of literature has lately been produced on the subject, much of which is cited in Freeman on Judgments (5th Ed.) 2780-2792. The Declaratory Judgment by Prof. Edwin M. Borchard, vol. 28 Yale Law Journal. See, also, the 'Supreme Court and the Declaratory Judgment' by Prof. Edwin M. Borchard, American Bar Association Journal for December 1928, and address of Senator Wagner of New York Congressional Record February 1, 1930, all of which support the propriety and the validity of declaratory judgments.

Under the English practice, provision for declaratory judgments was established by rule of court which, though broad in application, is discretionary. The procedure for a declaratory judgment has become so important in that country that it is said that 60 per cent. of the equity cases are now brought under it. The English reports contain many and various applications for declarations of right, but the decisions show that they have at all times been exercised sparingly, with care and jealousy, and with extreme caution. Russian Commercial and Industrial Bank v. British Bank, 90 L. J. K. B. (N. S.) 1089 (re Staples 1918, 9 Ch. 122); Austin v. Collins, 54 L. T. (N. S.) at page 905, 88 L. T. (N. S.) at page 550. The English and some of the American courts proceed on the theory that provision for a declaratory judgment involves a mere matter of practice and procedure, and does not go to the matter of jurisdiction on the part of the court to enter. On the question of jurisdiction, as determined by constitutional limitation, the English decisions would perhaps be of doubtful value in...