Smith v. Fechheimer

• Decision Date: 30 June 1936
• Citation: 124 Fla. 757,169 So. 395
• Parties: SMITH v. FECHHEIMER et al.
• Court: Florida Supreme Court

169 So. 395

124 Fla. 757

SMITH v. FECHHEIMER et al.

Florida Supreme Court, Division A.

June 30, 1936

Error to Circuit Court, Volusia County; M. G. Rowe, Judge.

Action by M. A. Smith, as liquidator of the Atlantic Bank & Trust Company, against Alice S. Feichheimer and another as executors of the last will and testament of S. Marcus Fechheimer, deceased. From an adverse judgment, the plaintiff brings error.

Affirmed.

COUNSEL

Scarlett & Futch, of De Land, for plaintiff in error.

Green &amp West and L. N. Green, all of Daytona Beach, for defendants in error.

OPINION

BROWN Justice.

This case comes before this court on writ of error from the circuit court of Volusia county, Fla., wherein M. A. Smith as liquidator of the Atlantic Bank & Trust Company, a defunct corporation, sought to enforce as against the executors of one S. Marcus Fechheimer, an assessment made on September 19, 1929, by the comptroller of the state of Florida upon certain capital stock, owned by the deceased, of the abovementioned corporation, and that no part of such assessment had been paid.

The defendant filed seven pleas, but upon motions and demurrers all of the pleas were eliminated except the seventh plea which raises the questions here involved.

The seventh plea in substance averred that S. Marcus Fechheimer died on or about March 23, 1932; that on April 13, 1932, letters testamentary were duly issued to the defendants; that the defendants as executors caused a notice to be published in accordance with law once a week for eight consecutive weeks; the first notice being published on April 23d, and the last on June 18, 1932, notifying creditors and all persons having claims against the said estate to present the same to the county judge of Volusia county, Fla., within twelve months of the first publication thereof; that on June 27, 1932, proof of publication was duly filed, and further averring:

'That plaintiff's claim was not duly sworn to and presented to the County Judge of Volusia County, at his office in the Courthouse in said county within twelve months from the time of the first publication of said notice on April 23, 1932, as aforesaid; that defendants have never paid or caused to be paid any sums of money upon plaintiff's claim since the death of said S. Marcus Fechheimer.

'Wherefore, the defendants aver that plaintiff's claim has become a non-claim and has become barred, lost, forfeited and extinguished and is no longer a binding debt, demand or claim against these defendants as executors of the estate of S. Marcus Fechheimer, Deceased.'

A demurrer to the seventh plea was overruled, and plaintiff declining to plead further, final judgment was thereafter entered in favor of the defendants.

This suit was begun on July 8, 1932, when praecipe for summons was filed, but so far as the record shows, the first time the defendants had any notice of this claim was on November 28, 1933, when they were served with a pluries summons ad respondendum, which was considerably more than a year after the first publication of notice to creditors.

The plaintiff in error contends that the filing of this action at law against the executors of the deceased stockholder within the time required by law was sufficient presentation without filing any proof of such claim with the county judge as required by statute; that the assessment is a statutory liability and the statute of nonclaim has no application; that section 6059, C.G.L. of 1927, as amended by Acts 1929, c. 13576, § 3, imposes a liability independent of the filing of any claim.

The first contention is clearly refuted by our holding in Douglass, Inc., v. McRainey, 102 Fla. 1141, 137 So. 157, 158. The act here involved is chapter 11994, of the Laws of 1927, § 2, now appearing as sections 5599, 5600, Comp.Gen.Laws of 1927, and is as follows:

'Claims against estate to be sworn to; limitations.--No claims or demands shall be valid or binding upon an estate, or the executor or administrator thereof, unless the same shall be duly sworn to and presented to the county judge of the county granting letters testamentary or of administration on an estate, at his office in the court house of said county; and any claims or demands not so presented within twelve months from the time of the first publication of the notice provided for in section 5597, shall be barred by limitation: Provided, however, that the lien of a duly recorded mortgage of real property and the right to foreclose same shall not be impaired or affected by failure to present same as hereinabove provided but that the limitation imposed by this law shall merely bar the right of enforcement of personal liability against the estate of the decedent. (Ch. 10119, Acts 1925, § 2; Ch. 11994, Acts 1927, § 2.)'

Section 5611, C.G.L.1927, derived from the statute of 1828, was superseded or amended in part at least by section 2 of chapter 10119, and section 2 of chapter 11994, and as so amended is set forth at page 680 of Cum.Supp. to C.G.L.1932, where, under the heading 'Effect of Nonclaim,' the following appears:

'5611. (3739.) Upon claims generally.--All debts and demands of whatsoever nature against the estate of any testator or intestate which shall not be presented to the county judge of the county granting letters testamentary or of administration on the estate, at his office in the courthouse of said county within twelve months after the first publication of the notice provided for by section 5597, shall forever afterward be barred; saving, however, to infants,' etc. Nov. 20, 1828, sec. 39; Ch. 10119, Acts of 1925, sec. 2; Ch. 11994, Acts 1927, sec. 2. (Italics supplied.)

We are not concerned here with section 39 of the old statute of 1828, which is section 3739 of the Rev.Gen.Stats. of 1920, and which only required that debts and demands should be presented to the executor or administrator within two years after the first publication of notice, without saying how the presentation should be made. Under that statute it was held that the bringing of suit was the equivalent of presentation to the executor or administrator. Fillyau v. Laverty, 3 Fla. 72; Ellison v. Allen, 8 Fla. 206; Anderson v. Agnew, 38 Fla. 30, 20 So. 766. Nor are we here concerned with sections 119 and 120 of the Probate Act of 1933 (chapter 16103, Acts 1933) dealing with this same subject, and making some changes in and additions to the statute of 1927, chapter 11994, which latter statute governs this case.

In Brooks v. Federal Land Bank of Columbia, 106 Fla. 412, 143 So. 749, at page 752, Mr. Justice Ellis, speaking for the court, said:

'The principle is that the limitation of time within which claims may be presented for allowance in the probate court is inseparable from the peculiar procedure prescribed in each jurisdiction. It is part of the procedure and not like a general statute of limitations, and can be applied only to persons who are bound by such special mode of procedure. But when the statute of nonclaim makes no exception as to any persons or class of persons, the courts can make none. 24 C.J. 335.'

Further, 106 Fla. 412, 143 So. 749, on page 753, Mr. Justice Ellis said:

'A statute of nonclaim while partaking of the nature of a statute of limitations is not wholly such. It constitutes part of the procedure of court, the orderly, expeditious, and exact settlement of the estates of decedents, and constitutes part of the procedure which courts must observe in the settlement of estates of deceased persons, and, where no exemption from the provisions of the statute exist, the court is powerless to create one. If such were not the case, the settlement of an estate might be deferred indefinitely, and the heirs and legatees, the rightful owners of the property of the estate, or beneficiaries of the will of the decedent, kept out of the enjoyment of their possessions and deprived of the benefits secured to them by the laws of the state for such unreasonable time as to practically deprive them of their property.'

With the exception of the mortgage lien and right to foreclose same, the Legislature did not see fit to exempt other debts and demands from the operation of the statute, and this court is powerless to create such an exemption.

Sections 5599, 5600, C.G.L.1927, states unequivocally that:

'No claims or demands shall be valid or binding upon an estate, or the executor or administrator thereof, unless the same shall be duly sworn to and presented to the county judge.'

Further, section 5611, as amended states that:

'All debts and demands of whatsoever nature * * * which shall not be presented to the county judge * * * within twelve months after the first publication of the notice * * * shall forever afterword be barred.'

The clear meaning of the above sections is to make the statutory requirements mandatorily essential, with the single exception as to mortgage liens mentioned in the statute.

A statute giving a remedy for the collection of claims against the estates of deceased persons and fixing a time for their presentation to the court furnishes the exclusive 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, it was held that:

'Claims against estate must be timely presented; representative's knowledge of existence of claims not constituting waiver of presentation.'

In the above case, Mr. Justice Davis, speaking for the court, recognized the holding in the previous case of Douglass, Inc., v. McRainey, supra, as controlling on the question there involved, and said:

' In Douglass, Inc., v. McRainey, 102 Fla. 1141, 137 So. 157, this court definitely held that chapter 11994, Laws of Florida 1927, is...