State ex rel. Ivey v. Circuit Court of Eleventh Judicial Circuit

• Decision Date: 10 April 1951
• Citation: 51 So.2d 792
• Parties: . Supreme Court of Florida, Division B
• Court: Florida Supreme Court

Page 792

51 So.2d 792

STATE ex rel. IVEY et ux. v. CIRCUIT COURT OF ELEVENTH JUDICIAL CIRCUIT et al.

Supreme Court of Florida, Division B.

April 10, 1951.

Rehearing Denied May 4, 1951.

Shutts, Bowen, Simmons, Prevatt & Julian, of Miami, for relators.

Fitzgerald & Wallace and Hoffman, Kemper & Johnson, all of Miami, for respondents.

ROBERTS, Justice.

The principal question presented here, by Suggestion for a Writ of Prohibition, relates to the immunity of the non-resident Relators from the service of civil process upon them in this state, under the following facts and circumstances:

The Relators, Richard B. Ivey and his wife, Maxine B. Ivey, are beneficiaries under the will of Mary Adams Canfield, deceased, and Mr. Ivey is named as Executor thereof. Upon the death of Mrs. Canfield, a resident of Florida, her will was offered for probate in the County Judge's Court of Dade County, and letters testamentary were subsequently issued to Mr. Ivey. Shortly after this will was offered for probate, a suit for a declaratory decree was filed in the Circuit Court of Dade County by Jan Simpson and William Simpson, Jr., by their next friend and natural guardian, William Simpson, naming as parties defendant the Relators here, (Richard B. Ivey being named as a defendant in his capacity as Executor, as well as individually) and the other beneficiaries named in the will of Mary Adams Canfield. Also made a party defendant was Preston G. Prevatt, who had theretofore been designated as the agent of Ivey, as a non-resident Executor, in accordance with the requirements of Section 732.47, Florida Statutes 1949, same F.S.A. The bill of complaint alleged, in substance, that Mary Adams Canfield and her husband, John Canfield, had agreed to and did execute mutual reciprocal wills, in which each devised and bequeathed to the other the major portion of his or her estate, and in which each provided that, upon the non-survival of the other spouse, then his or her estate was devised and bequeathed in trust for the benefit of Jan Simpson and William Simpson, Jr., who were the adopted children of John Canfield's sister. The bill prayed that the court declare that a binding testamentary contract existed between Mary Adams Canfield and John Canfield (who had pre-deceased his wife) and, further, that the court determine the respective rights and duties of the parties with respect thereto.

Meanwhile, there was pending in the probate proceedings in the County Judge's Court a petition by the Simpsons, and others, to set aside Mrs. Canfield's will there being probated, upon the ground that its execution had been procured by the use fo undue influence on the part of Richard B. and Maxine B. Ivey, the Relators here. Mr. Ivey, in his capacity as Executor, filed a Response to the petition, and the cause was set down for hearing by the County Judge. Mr. annd Mrs. Ivey voluntarily appeared at the hearing during the time when the petitioners were presenting their case, which was some time prior to the time set for the presentation of the respondent Ivey's case. The Iveys did, however, actually...