Ullendorff v. Brown

• Decision Date: 11 December 1945
• Citation: 24 So.2d 37,156 Fla. 655
• Parties: ULLENDORFF et al. v. BROWN et al.
• Court: Florida Supreme Court

24 So.2d 37

156 Fla. 655

ULLENDORFF et al. v. BROWN et al.

Florida Supreme Court

December 11, 1945

Norris McElya, of Miami, for Eugene Ullendorff petitioner.

Grady C Harris, of Miami, for Annette Ullendorff Winnard petitioner.

Redfearn & Ferrell and Mitchell D. Price, Zaring & Florence all of Miami, for respondents.

SEBRING, Justice.

This is an original proceeding in prohibition to prohibit the Circuit Court of the Eleventh Judicial Circuit from proceeding further in a certain equity suit wherein Clyde W. Brown is plaintiff and Eugene Ullendorff and Annette Ullendorff Winnard are defendants, being case numbered 93331 in chancery. The material allegations of the bill of complaint in the equity suit are as follows: In 1895 Jennie Ullendorff was married to one Phillip Ullendorff and lived with him as his wife until his death in September 1923. Upon the death of Phillip Ullendorff his widow dissented from his will (which was probated in Dade County, Florida) and elected to take a child's part in his estate, which was awarded and delivered to her. In the division of the estate Jennie Ullendorff received one-third thereof as her child's part, and the remainder of the estate went to Eugene and Annette Ullendorff, the defendants. Subsequently Jennie Ullendorff married one Claude Gossett, who died prior to May, 1938. On May 11, 1938, Jennie Ullendorff Gossett married the plaintiff, Clyde W. Brown.

Jennie Ullendorff Gossett Brown died in Broward County, Florida, on October 11, 1944, and was buried in Dade County, Florida. Upon her death the plaintiff, Clyde W. Brown, was appointed administrator of her estate by the County Judge's Court of Broward County and is now administering the estate. Eugene Ullendorff and Annette Ullendorff Winnard have filed a petition in the probate proceedings in which they claim that they are children of Jennie Ullendorff Gossett Brown and, as such, are entitled to two-thirds of her estate. Plaintiff alleges upon information and belief that said claimants are not children of the deceased but were twins born to Edgar and Lizzie Dodson in a maternity hospital in Nashville, Tennessee, on July 31, 1908, and within a few days thereafter were given by the parents to Jennie Ullendorff, but were never legally adopted by the latter.

Plaintiff further alleges upon information and belief that on or about October 22, 1931, Jennie Ullendorff Gossett Brown, then known as Jennie Ullendorff Gossett, executed a last will and testament, whereby she devised and bequeathed the greater portion of her estate to Eugene Ullendorff and Annette Ullendorff Winnard, her foster children. Subsequently Jennie Ullendorff Gossett Brown became estranged from her foster children and on June 10, 1938, canceled and revoked said will by certain wording written across the face thereof. After making the will of October 22, 1931, Jennie Ullendorff Gossett was married to plaintiff, who survived her. Jennie Ullendorff Gossett Brown has made no provision for Clyde W. Brown in her will. The will does not disclose an intention not to make such provision for her spouse. The testatrix made no provision for her spouse by marriage contract. Section 731.10, Florida Statutes 1941, provides that 'When a person marries after making a will, and the spouse survives the testator, such surviving spouse shall receive a share in the estate of the testator equal in value to that which such surviving spouse would have received if the testator had died intestate, unless provision has been made for such spouse by marriage contract, or unless such spouse is provided for in the will, or unless the will discloses an intention not to make such provision.' If the will is a valid instrument the plaintiff is entitled to receive a share in the estate of the testatrix equal in value to that which such surviving spouse would have received if the testatrix had died intestate.

Plaintiff further alleges that all persons by whom he could have proved that Eugene Ullendorff and Annette Ullendorff Winnard are not the lineal descendants of Jennie Ullendorff Gossett Brown are dead, and that the only method by which he can prove that they are not the natural children of the deceased is by a disinterment of her body and the performance of an autopsy thereon; that such autopsy will show conclusively whether or not the said Junnie Ullendorff Gossett Brown had ever borne a child, and if she had not, the proof will be conclusive that the claimants are not her children; that a court of equity is the only court which has jurisdiction to order an exhumation of the body and the performance of an autopsy for such purpose.

The prayer of the bill is that the court will take jurisdiction of the cause and will enter a decree declaring (1) that the will of Jennie Ullendorff Gossett Brown, dated October 22, 1931, is not a valid last will and testament of Jennie Ullendorff Gossett Brown and that by reason of that fact the deceased died intestate; (2) if said will is found to be valid, that the decree declare that plaintiff is the surviving spouse of the testatrix and is entitled to receive a share in the estate of deceased equal in value to that which plaintiff would have received if she had died intestate; (3) that the decree declare whether or not defendants are children of Jennie Ullendorff Gossett Brown, deceased. As supplemental relief, it is asked that the court order that the body of the deceased be disinterred and that an autopsy be made thereon for the purpose of determining whether the deceased has ever borne a child.

The right and authority of the Circuit Court of the Eleventh Judicial Circuit to proceed to adjudicate the issues raised in the equity suit in the face of prior jurisdiction involving the same issues already taken in the County Judge's Court of Broward County, was raised by motion to dismiss filed by the defendants. Grounds of the motion are (1) that the bill of complaint shows on its face that the Probate Court of Broward County has already acquired jurisdiction of the matters and things sought to be adjudicated in the bill of complaint and that the Eleventh Judicial Circuit Court has no jurisdiction to interfere with the jurisdiction of the Probate Court of Broward County, Florida; (2) that the supervisory and appellate jurisdiction over the Probate Court of Broward County, Florida, belongs to the Circuit Court of the...