State ex rel. Booth v. Byington

Decision Date26 October 1964
Docket NumberNo. F-454,F-454
Citation168 So.2d 164
PartiesSTATE of Florida ex rel. Charles E. BOOTH, as Executor under the Last Will and Testament of Florence I. Herlan, Petitioner, v. Honorable John S. BYINGTON, as County Judge in and for Volusia County, Florida, Respondent.
CourtFlorida District Court of Appeals

Walter Shelley and Paul Raymond, Daytona Beach, for respondent.

STURGIS, Chief Judge.

On the relation and petition of Charles E. Booth, as executor of the last will and testament of Florence I. Herlan, deceased, administration whereon is pending in the County Judge's Court in and for Volusia County, Florida, we issued a rule nisi to the Honorable John S. Byington, as judge of said court, requiring him to show cause why a peremptory writ of prohibition should not issue upon the suggestion of relator: (1) that certain orders entered by him of his own motion in the matter of the administration of the estate of said decedent exceeded the jurisdiction of said court; and (2) that his term of office as county judge has expired, thus disqualifying him to act as such in the premises.

The relator alleged, in substance: That he is the named residuary legatee and executor without bond of the will of said decedent; that the will was duly established and admitted to probate by the respondent on May 14, 1962, and letters testamentary issued to relator on that day; that on May 11, 1962, relator filed a sworn statement pursuant to Section 732.28, Florida Statutes, F.S.A., setting forth the names and addresses of all beneficiaries under the will, reciting that there were no known heirs of decedent, and requesting the court to issue and serve on all beneficiaries the citation and notice of probate contemplated by the statute; that the notice of probate was filed by the court on May 18, 1962, and the named beneficiaries were each served with a copy by certified mail; that the notice was also published according to law, and no objection to the probate was filed within the prescribed six months after publication. On the stated facts, relator suggested that by operation of law the probate of said will became conclusive.

Relator also alleged, in substance: That notice to creditors was duly published and their claims became barred on November 19, 1962; that all proofs of claims filed in the estate have been paid; that a full inventory of the assets of the estate has been filed (date not stated); that all estate and death taxes have been paid; that in accordance with Section 733.43, Florida Statutes, F.S.A., the relator, as residuary legatee, and all other beneficiaries have in writing waived the filing of an accounting and have 'executed Waiver of Notice to Apply For Discharge and for Accounting'; that final distribution has been made by relator pursuant to Section 734.02, Florida Statutes, F.S.A.; and that all that remains to be done in said estate is to discharge the relator pursuant to a final accounting which he has prepared and filed with the probate court (date not stated).

Relator further alleged, in substance: That on June 15, 1964, the respondent of his own motion and without notice or hearing issued on 'Order of Investigation and to Account,' directed to the relator, attacking 'the validity of the decedent's Will and testamentary capacity,' and prohibiting 'the withdrawal of any funds from any bank in which assets of the estate were located'; 1 and that on June 16, 1964, the respondent of his own motion and without notice or hearing entered a 'Rule to Show Cause', directed to the relator, why he 'should not be adjudged in contempt.' 2 We granted the relator leave to amend the suggestion for writ of prohibition by adding thereto a request that we prohibit the respondent from proceeding further in said proceedings involving the relator, and particularly from holding any hearings on said order of investigation, on the ground that respondent is disqualified 'by automatic retirement' from acting as judge therein, and on the further ground that the probate of said will became final under the provisions of F.S. § 732.28, F.S.A., and the rule announced by the Supreme Court of Florida in State ex rel. Ashby v. Haddock, 149 So.2d 552 (1962).

In answer to the rule nisi the respondent, by his attorneys of record, filed an elaborate return and an amendment thereto, much of which deals in polemics having no material bearing on the issues. In pertinent part it admitted all material allegations of fact as set out in the rule nisi, in which was incorporated the suggestion and petition of the relator; but respondent denied that he exceeded his jurisdiction by issuing the orders of June 15, 1964 (Order of Investigation and to Account), and order of June 16, 1964 (Rule to Show Cause), as amended by order of June 23, 1964, and denied that he was without jurisdiction or disqualified to hear and determine the matters set forth therein.

The parties submitted without argument all pending motions. Relator moved to strike portions of respondent's answer to the rule nisi and to strike entirely respondent's amendment to said answer. Said motions are granted.

The relator moved to strike portions of respondent's brief. Said motion is granted. $The respondent moved to strike the reply brief of the relator on the ground that the brief contains unsupported insinuations and allegations which are improper, undignified, offensive, scandalous, impertinent and beyond the scope of the record and issues in this proceeding, and to strike the revised proof of publication, belatedly filed by relator. The motion is denied. We deem it appropriate at this juncture to note that zeal of counsel has produced pleadings on the part of both sides to this controversy which are in part infested with irrelevant matter and occasionally with intemperate charges and countercharges of a personal character and so devoid of legal effect as not to benefit--much less influence--the court or serve the best interests of the litigants.

The relator's primary thrust is directed to the proposition that an identical question as here involved was squarely presented to the Florida Supreme Court in State ex rel. Ashby v. Haddock, supra, in which it was held that this court erred in declining to issue a writ of prohibition preventing a county judge from acting further on a petition for revocation of a will, which petition was filed after the running of the six-months statutory period under F.S. § 732.28, F.S.A. We do not think the facts in that case are parallel with or the decision determinative of the issues on this appeal. In Haddock there was no question of fraud or overreaching nor did it involve the inherent powers and duties of the county judge in the supervision and control of the administration of estates of decedents, as in the instant case.

Section 7(3), Article V, Constitution of Florida, F.S.A., confers jurisdiction on the County Judge's Court to settle the estates of decedents and minors and to discharge the duties usually pertaining to courts of probate. This has been construed to be 'a broad grant of power' which 'clothes the probate court with plenary power to adjudicate any matter arising in the 'settlement' of a decedent's estate.' In re Warner's Estate, 160 Fla.App., 460, 35 So.2d 296 (1948). As said in In re Monk's Estate, 155 Fla.App., 240, 19 So.2d 796 (1944):

"Probate duties' contemplates the probation of wills, issuance of letters testamentary or administration, collection of debts, allowance or disallowance of claims, ordering the sale of real estate approval of final accounts, distribution of the property of the estate, hearing testimony and ascertaining the heirs, legatees, distributees or beneficiaries entitled to receive the estate of a decedent, and the amounts and shares thereof. The County Judge's Court, generally speaking, has the exclusive power to do all things necessary in the settlement of an estate of a decedent from the probation of a will or the issuance of letters of administration to the completion of the administration thereof and the entry of an order of discharge of the legal representative.'

As to all matters within its cognizance, the County Judge's Court is a court of general Jurisdiction. In re Niernsee's Estate, 147 Fla.App., 388, 2 So.2d 737 (1941). Its probate jurisdiction cannot properly be restricted by legislative enactment. See In re Straitz's Estate, 135 So.2d 239 (Fla.App., App.2d 1961), which holds:

'County Judge's Courts have jurisdiction to do all things reasonably related to the probate of wills and the settlement and administration of decedent's estate, except where a conflicting proposition exists by virtue of an express provision of the constitution.'

The legislature has not imposed any limitation upon the broad constitutional grant of power to the County Judge's Court in probate matters. It has in fact re-enacted the substance of the constitutional provision (Sections 36.01(3) and 732.01, Florida Statutes, F.S.A.) and by Section 36.02, Florida Statutes, F.S.A., has clearly implemented the constitutional grant of jurisdiction by providing:

'36.02 General powers. County judge's courts shall be courts of record, and county judges shall have authority to make all orders or decrees, and to issue every and all process necessary to maintain and carry out their constitutional jurisdiction, or to enforce their authority, and to enter and enforce their judgments and decrees in all matters wherein they have jurisdiction.'

The relator is an attorney at law. He represented the decedent in preparing the will which designates him as the primary beneficiary and executor without bond. In ordering relator to appear before him to account for and explain matters brought to the respondent's attention, as reflected by the challenged orders which indicate the existence of error in the admission to probate of decedent's will and maladministration upon her estate, Judge Byington was...

To continue reading

Request your trial
20 cases
  • Moore v. Sanders
    • United States
    • Mississippi Supreme Court
    • March 14, 1990
    ...to warrant the use of the remedy. See also, Coulter v. Reese, 261 Ala. 660, 75 So.2d 608, 610 (1954); and State ex rel. Booth v. Byington, 168 So.2d 164 (Fla.App.1964), aff'd 178 So.2d 1, wherein the Alabama and Florida courts hold that where quo warranto is available it is the exclusive 65......
  • Walker v. Trump, 88-1309
    • United States
    • Florida District Court of Appeals
    • September 27, 1989
    ...the least, a de facto officer whose acts are valid and cannot be collaterally attacked by third persons. See, State ex rel Booth v. Byington, 168 So.2d 164 (Fla. 1st DCA 1964). In fact Mr. Trump never challenged Mr. Slade's status in his complaint, the pre-trial statement, or at trial. The ......
  • Danner v. Danner, 67--411
    • United States
    • Florida District Court of Appeals
    • February 7, 1968
    ...or vacate them at any time before they become final. State v. City of Sarasota, 1944, 154 Fla. 250, 17 So.2d 109; State ex rel. Booth v. Byington, Fla.App.1964, 168 So.2d 164, aff. Fla., 178 So.2d 1; Butler v. Butler, Fla.App.1965, 172 So.2d 899; Whitaker v. Wright, 1930, 100 Fla. 282, 129 ......
  • Kane v. Robbins
    • United States
    • Florida Supreme Court
    • July 20, 1989
    ...Hawthorne v. Wiseheart, 158 Fla. 267, 28 So.2d 589 (1946); Sawyer v. State, 94 Fla. 60, 113 So. 736 (1927); State ex rel. Booth v. Byington, 168 So.2d 164 (Fla. 1st DCA 1964), affirmed, 178 So.2d 1 (Fla.1965). Moreover, the official acts of the incumbent school board members shall continue ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT