Torrey v. Bruner
| Decision Date | 23 June 1910 |
| Citation | 53 So. 337,60 Fla. 365 |
| Parties | TORREY v. BRUNER et al. |
| Court | Florida Supreme Court |
Rehearing Denied Oct. 12, 1910.
Appeal from Circuit Court, Lake County; W. S. Bullock, Judge.
Application by Frank B. Torrey, executor of Edward Warren Day, to admit to record the will probated in another state. From a decree for Evelyn Day Bruner and others, contestants, refusing to admit the will to record, the executor appeals. Reversed.
Syllabus by the Court
When a court does not have jurisdiction of the subject-matter and of the parties affected by its judgment or decree, the adjudication is void, and may be assailed collaterally; but if the court has jurisdiction of the subject-matter and of the parties, the adjudication is binding, even though erroneous, unless it is reversed or modified by direct appellate proceedings.
Where the court has jurisdiction of the subject-matter and of some of the parties, the adjudication may be binding on the parties over whom the court has acquired jurisdiction by the proper service of process or by appearance, and not binding as to other persons over whom the court had not acquired jurisdiction.
In proceedings in rem, where proper notice is given, the adjudication is in general binding on all the world, where the court had jurisdiction of the subject-matter or the rem.
The probate of a will is in the nature of a proceeding in rem the character of the notice required being prescribed by statute. The subject-matter of the proceeding or the rem is the will.
When a will is not void on its face, so as to make it in fact no will, all parties who contest the probate proceedings are bound by the decree rendered, unless it is reversed or modified by direct appeal.
In the probate of a will, where the jurisdictional fact of the decedent's residence is made an issue on the merits of the case, the determination of the fact is conclusive on the parties, unless reversed on direct appeal.
Where it appears that the probate of a will has been 'duly obtained and granted' by a court of another state, it is the duty of the county judge of the proper county in this state, under section 2287 of the General Statutes of 1906, to admit such probate to record; the legal effect of such record not being involved.
COUNSEL Axtell & Rinehart and Henry Strunz, for appellant.
J. B Gaines and Henry W. Bishop, for appellees.
This appeal is from a decree of the circuit court affirming a decree of the county judge of Lake county refusing to admit to record a will probated in New York.
The appellant presented to the county judge for Lake county, Fla., an amended petition in which it is in brief alleged that on June 27, 1906, Edward Warren Day, late of Brooklyn, Kings county, N. Y., died at Brooklyn, leaving his last will and testament; that about November 16, 1906, the petitioner applied for a probate of said will; that notice was served and a contest over the probate of the will was had, among the contestants being Evelyn Day Bruner; that the will was admitted to probate, and letters testamentary issued thereon to petitioner, who qualified as executor; that there are assets of decedent in Lake county, Fla., both real and personal, to be disposed of under the will. It was prayed that an exemplified copy of the will, together with the proceedings showing probate thereof in the Surrogate's Court of Kings county, N. Y., may be recorded in the county judge's court of Lake county, Fla., as provided by law, and that ancillary letters testamentary be issued to petitioner, and for general relief. The proceedings in the Surrogate's Court of Kings county, in Brooklyn, N. Y., show that on a petition by the appellant, stating the death of decedent in Brooklyn, N. Y., June 27, 1906, possessed of certain personal property situated in Kings courty; that petitioner is informed and believes the said deceased was at his death a resident of the county of Kings, New York; that the will was made at Pittman, Fla., and petitioner appointed executor thereof; that decedent left no widow, children, father, or mother, and that certain named persons are all the heirs and all the next of kin of decedent, among them being a sister, Evelyn Day Bruner; that all of said next of kin are of full age and sound mind--and praying for probate and citation in due course, citations issued, and a contest of the will was had. Among the contestants was the sister, Evelyn Day Bruner, who averred that the court had no jurisdiction, because at his death the decedent was not a resident of Kings county, N. Y., but was a resident of Pittman, Lake county, Fla., and because letters of administration have been issued in Lake county, Fla., and no personal property of decedent in Kings county, N. Y., remains unadmissistered; that no real property of decedent is in Kings county, and that the personal property mentioned in the petition for probate of the will is represented by bonds and notes that are and were in Lake county, Fla.; and that the other personal property is at his residence and place of domicile at Pittman, Fla. At the conclusion of the proceedings before the Surrogate's Court of Kings county, N. Y., it was decreed and adjudged that the will was duly executed by the testator, who was then 'and in all respects competent to make such will, and not under any restraint or undue influence, and was at the time of making said will and at the time of his death a resident of and domiciled in the county of Kings, state of New York.' It was further ordered that the will be probated and letters thereon issued, and 'that the objections to the probate, not heretofore disposed of, including the objection that the said Edward Warren Day was not at the time of his death a resident of the county of Kings and state of New York, be and the same are hereby dismissed, as not proven and not sustained.'
The admission of the will to record in Lake county was resisted by Evelyn Day Bruner, a sister of the decedent, who averred that she and three brothers were all the heirs at law and next of kin of the decedent; that at the time of the execution of the alleged will the testator 'was not of sound mind, memory, or understanding, and was mentally incompetent and mentally without testamentary capacity' that the will, if executed, was made under undue influence; that the supposed will was executed in Lake county, Fla.; that at the time of the execution the testator 'resided, and had his only residence, home, and place of permanent abode,' in Lake county, Fla., and had there resided for a long time, and that 'the actual and legal domicile of' the decedent was in Lake county, Fla., at and before his death; that he owned and resided on property in Lake county, Fla.; that decedent was adjudged a lunatic in Lake county, Fla., on May 4, 1906; that decedent remained of unsound mind from May 4, 1906, till his death; that, though decedent died in New York, he was there only temporarily for medical treatment; that the...
To continue reading
Request your trial
-
Fiehe v. R.E. Householder Co.
...held of an order of a county judge revoking letters of administration ( Mathews v. Durkee, 34 Fla. 559, 16 So. 411). In Torrey v. Bruner, 60 Fla. 365, 53 So. 337, it held that, when the jurisdictional fact of residence of the deceased had been duly found in a proceeding to probate a will, t......
-
Malone v. Meres
...an absolute verity, and passes beyond the control of the courts to disturb. Einstein v. Davidson, 35 Fla. 342, 17 So. 563; Torrey v. Bruner, 60 Fla. 365, 53 So. 337; Lucy v. Deas, 59 Fla. 552, 52 So. If the court has acquired jurisdiction of the subject-matter and of the parties, the judgme......
-
Riley v. New York Trust Co
...was privy to the proceeding in state A, state B will not redetermine the issue of domicile. Willetts' Appeal, 50 Conn. 330; Torrey v. Bruner, 60 Fla. 365, 53 So. 337; Loewenthal v. Mandell, 125 Fla. 685, 170 So. 169; Succession of Gaines, 45 La.Ann. 1237, 14 So. 233. Where the proceeding in......
-
Massey v. David
...by appearance and the same is not binding as to other persons over whom the court has not acquired jurisdiction."); Torrey v. Bruner, 60 Fla. 365, 53 So. 337, 338 (1910); Foster v. Thomas, 112 So.2d 33, 35 (Fla. 1st DCA 1959). The trial court did not obtain jurisdiction over Mr. David until......
-
The Supreme Court takes exception to the "probate exception" Mrs. Smith goes to Washington.
...126 Fla. 72, 170 So. 440 (1936). (7) Royalty v. Florida Nat. Bank of Jacksonville, 127 Fla. 618, 173 So. 689 (1937). (8) Torrey v. Bruner, 60 Fla. 365, 53 So.337 (9) Pitts v. Pitts, 120 Fla. 363, 162 So.708 (1935). (10) Williams v. Howard Cole & Co., 159 Fla. 151, 31 So. 2d 914 (1947), ......