Snyder's Estate, In re

• Decision Date: 11 June 1976
• Docket Number: No. 75--1552,75--1552
• Citation: 333 So.2d 519
• Parties: In re the ESTATE of Josephine Johnson SNYDER, a/k/a Josephine Porter Hill Snyder, Deceased.
• Court: Florida District Court of Appeals

Page 519

333 So.2d 519

84 A.L.R.3d 703

In re the ESTATE of Josephine Johnson SNYDER, a/k/a Josephine Porter Hill Snyder, Deceased.

No. 75--1552.

District Court of Appeal of Florida, Second District.

June 11, 1976.

Russell A. Meade, of Bernstein, Sherr, Hodges, Lancer & Brand, Sarasota, for appellant.

David S. Yost of Lyons & Beaudry, Sarasota, for appellee.

GRIMES, Judge.

Josephine Johnson Snyder died intestate, survived by her husband and three adult children. The children petitioned to be appointed as co-administrators of the estate or in the alternative for the appointment of Allan M. Lichtenstein, a Certified Public Accountant, as administrator. The petition was opposed by the husband was sought to have himself appointed as administrator. Following a hearing at which evidence was submitted concerning the husband's character and ability and his relationship to the decedent, the court appointed Lichtenstein as the administrator. The husband brings this appeal asserting his right to be appointed administrator.

Since the order was entered before January 1, 1976, the pertinent statutes are those which were in effect prior to the new Florida Probate Code. Fla.Stat. § 732.44 (1973) provided:

'In the granting of letters of administration, the following preference shall be observed:

(1) The surviving spouse shall first be entitled to letters . . ..'

Fla.Stat. § 732.45 (1973) specified that a person who has been convicted of a felony or who from sickness, intemperance or want of understanding is incompetent to discharge his duties cannot be appointed as a personal representative. Likewise, a minor could not serve by reason of Fla.Stat. § 732.46 (1973). Since appellant was not disqualified under these statutes, he contends that he was entitled to be appointed as a matter of right.

Both parties cite cases involving the question of whether the conduct of a surviving spouse has been so outrageous as to estop him from inheriting under the laws of intestacy. E.g., Doherty v. Traxler, Fla.1953, 66 So.2d 274; Kreisel v. Ingham, Fla.App.2d, 1959, 113 So.2d 205; Nedd v. Starry, Fla.App.1st, 1962, 143 So.2d 522. In these cases the right to appointment as administrator was incidental to the issue of inheritance. In our view, the right to be appointed administrator is not necessarily measured by the same standard used in determining the right to inherit.

The record reveals the trial judge had before him sufficient evidence to persuade him that the husband was not qualified by character, ability and experience to serve in the important capacity demanded of an administrator for an estate. Therefore, the narrow question which remains is whether the court could legally refuse to appoint appellant administrator when he was not specifically disqualified by the statute. There is a split of authority on this point. See 80 A.L.R. 824; 33 C.J.S. Executors and Administrators, 924. Some courts hold that a party having preference and who is not disqualified by the statute has an absolute right to the appointment. E.g., Calvert v. Beck, 1941, 240 Ala. 442, 199 So. 846. Others hold that the probate court has discretion to determine whether or not a party is qualified to serve. E.g., In re Abell's Estate, 1946, 395 Ill. 337, 70 N.E.2d 252; In re Langill's Estate, 1921, 117 Wash. 268, 201 P. 28. We incline toward the latter view.

The applicable Illinois statutes in the case of In re Abell's Estate, supra, were similar to ours in that one section of the probate act provided for preferences and another specifically set forth certain infirmities which would preclude appointment. In response to the contention that a party occupying a position of statutory preference but who was not specifically disqualified had an absolute right to appointment, the court said:

'The literal interpretation of section 96 of the Probate Act advanced by appellants is contrary to familiar rules...