State ex rel. Ashby v. Haddock

• Decision Date: 17 April 1962
• Docket Number: No. D-186,D-186
• Citation: 140 So.2d 631
• Parties: STATE of Florida ex rel. Clarence G. ASHBY, T. S. Roberts, Jr., and The Barnett National Bank of Jacksonville, as Executors and Trustees under the Will of Thurston Roberts, deceased, Petitioners, v. Honorable Page HADDOCK, Judge of the County Judge's Court, in and for Duval County, Florida, Respondent.
• Court: Florida District Court of Appeals

Page 631

140 So.2d 631

STATE of Florida ex rel. Clarence G. ASHBY, T. S. Roberts, Jr., and The Barnett National Bank of Jacksonville, as Executors and Trustees under the Will of Thurston Roberts, deceased, Petitioners, v. Honorable Page HADDOCK, Judge of the County Judge's Court, in and for Duval County, Florida, Respondent.

No. D-186.

District Court of Appeal of Florida, First District.

April 17, 1962.

Rehearing Denied May 15, 1962.

Parker, Foster & Madigan, Tallahassee, for petitioners.

Edward S. Hemphill, Jacksonville, for respondent.

STURGIS, Judge.

On the suggestion of the State of Florida ex rel., Clarence G. Ashby, T. S. Roberts, Jr., and The Barnett National Bank of Jacksonville, hereinafter called the 'relators' who appear in their relation as executors and trustees under a document that was admitted to probate in the County Judge's Court of Duval County as the will of Thurston Roberts, deceased, we issued a rule nisi in accordance with relators' suggestion, requiring the Honorable Page Haddock, as judge of said court, hereinafter called the 'respondent', to show cause why a peremptory writ of prohibition should not issue (1) vacating an order of the court of probate denying relators' motion to dismiss an application for revocation of the probated will, which application was filed by two of the named executors and trustees under an alleged prior will, hereinafter referred to as the 'trustees', and (2) prohibiting the respondent judge from entering or making any further order or orders which would permit the probate or legal recognition of the alleged prior will until and unless the probated will should be revoked. The apparent inconsistency of the latter prayer is explainable by the fact that there is pending in the probate court an independent and admittedly timely and competent application for revocation of the probated will, filed by parties claiming under the same allegedly prior will as said trustees. We indulge the presumption that an order of the character contemplated by relators' last mentioned prayer will not be entered.

The respondent filed a return to the rule nisi, the general tenor of which is to justify the exercise of jurisdiction in the premises, and also filed a motion to quash the rule and to dismiss the petition.

It appears from the pleadings that upon the death of Thurston Roberts, a resident of Duval County, Florida, there was admitted to probate in the County Judge's Court of said county documents purporting to be his last will and testament, and letters testamentary issued to the relators as executors thereof.

On October 5, 1960, certain heirs at law of decedent filed in said County Judge's Court a purported prior will of decedent in which said trustees (C. D. Towers, The Florida National Bank of Jacksonville, and Francis M. Bullard) are named as executors thereof and trustees thereunder. Item Four of the alleged prior will purports to devise and bequeath to said trustees a substantial part of testator's estate, in trust, for sundry uses and purposes specified therein.

On a later date the relators, as the qualified executors under the probated documents, filed in the court of probate a 'Sworn Statement for Notice of Probate' under Section 732.28, Florida Statutes, F.S.A., the pertinent provisions of which are as follows:

'732.28 Notice of probate

'(1) Upon the admission of a will to probate, the personal representative or any other interested party may, at his option, file in the office of the county judge a sworn statements containing the name and residence or post-office address of each legatee or devisee named in the will and of the surviving spouse and wach heir at law of the decedent.

'(2) Upon the filing thereof, the county judge shall cause to be duly mailed, postage prepaid, with the return address of the county judge upon each envelope, to each person named in said statement, a notice of the probate of said will. A certificate of such mailing shall be filed by the county judge.

'(3) Thereupon, the county judge shall cause to be published once a week for four consecutive weeks in a newspaper published in the county, four publications being sufficient, a notice addressed to all persons interested, in substantially the following form:

'In the County Judge's Court ________ County, Florida.

'Estate of ________, Deceased.

'The State of Florida to all persons interested in the estate of said decedent:

'You are hereby notified that a written instrument purporting to be the last will and testament of said decedent has been admitted to probate in said court.

'You are hereby commanded within six calendar months from the date of the first publication of this notice to appear in said court and show cause, if any you can, why the action of said court in admitting said will to probate should not stand unrevoked.

'________

County Judge

'________ County, Florida

'By ________

Clerk

'First publication on ________

* * *

* * *

'(5) No person who has been served with citation upon the petition for probate or who has waived such citation need be notified hereunder; but such person shall be bound by the order admitting the will to probate, unless the probate is successfully appealed from. Any person may likewise waive notice of probate by an instrument in writing filed in the office of the county judge and such waiver shall bar any action for revocation of probate.

'(6) If no petition for revocation of probate is filed within the time limited aforesaid, the order admitting such will to probate shall be conclusive without further order, upon proof of publication of notice of probate's being filed and recorded in the office of the county judge. No petition for revocation of probate may be maintained unless filed within said six-month period.'

The statement so filed by relators did not include the names and residences or post-office addresses of the trustees named in the alleged prior will; indeed, F.S. 732.28, F.S.A., does not appear to so require. At any rate, the Notice of Probate under the statute was served by mail on only the persons specifically named in said sworn statement, and Notice of Probate, in the form prescribed by the statute, was duly published in a newspaper as provided by the statute.

Subsequent to the six-month period from the date of first publication of the Notice of Probate, which is the period allowed by the statute for the filing of a petition for revocation by those bound by the Notice of Probate when given under the statute, two of the trustees designated under the alleged prior will filed their application for revocation of the probated will and for admission to probate of the alleged prior will, stating the same grounds advanced in the hereinabove mentioned independent and timely application for revocation. The relators then moved the court of probate to dismiss the trustees' application for revocation of probate on the ground that it was not filed within the six-month period from the date of first publication of said Notice of Probate under F.S. 732.28, F.S.A., and upon denial thereof filed this original proceeding in prohibition.

The order of the respondent judge denying said motion held that the trustees under the prior will are legatees or devisees thereunder, that they were not served with Notice of Probate or with citation before probate, that they had not waived citation or filed a caveat to the probate of the will under which relators claim, and that under F.S. 732.30(1), F.S.A., they are authorized to file and maintain said application for revocation.

In State ex rel. Rheinauer v. Malone, Judge (1898), 40 Fla. 129, 23 So. 575, the Florida Supreme Court, adopting the language of McConiha v. Guthrie, 21 W.Va. 134, states the scope of the writ of prohibition as follows:

"* * * It is a fundamental principle, and one which will be strictly enforced, that this writ is never allowed to usurp the functions of a writ of error, or certiorari, and can never be employed as a process for the correction of errors of inferior tribunals. The courts will not permit a writ which proceeds upon the ground of an excess or usurpation of jurisdiction to become an instrument itself of usurpation, or be confounded with a writ of error, which proceeds upon the ground or error in the exercise of a jurisdiction which is conceded. It does not lie to prevent a subordinate court from deciding erroneously, or from enforcing an erroneous judgment, in a case in which it has a right to adjudicate. In the application of the principle, it matters not whether the court below had decided correctly or erroneously; its jurisdiction of the matter in controversy being conceded, prohibition will not lie to prevent an erroneous exercise of that jurisdiction."

and further, from Leonard v. Bartels, 4 Colo. 95:

'* * * a writ of prohibition 'is not granted ex debito justitiae, but rests in the sound discretion of the court. It is a prerogative writ, used with great caution, where the ordinary remedies provided by the law are not applicable or adequate. It is never allowed to usurp the office of a writ of error, or an appeal. It is used to confine inferior courts, in the exercise of their powers, within the limits fixed by the law. A clear distinction is made by the authorities between the assumption of a jurisdiction to which the court has no legal claim, and the mere erroneous exercise of a jurisdiction with which the court is invested. If the inferior court has jurisdiction of the subject-matter, a mistaken exercise of that jurisdiction, or of its acknowledged powers, will not justify a resort to the extraordinary remedy by prohibition. There must be excess of jurisdiction, and not mere error in the exercise of a jurisdiction which is conceded.''

Section 732.30(1), Florida Statutes, F.S.A., relied on by the order denying relators' motion to dismiss the trustees' application for revocation of probate, provides:

'732.30 Revocation of probate

'(1) Any heir or...