Wells v. Menn

• Decision Date: 04 February 1944
• Citation: 17 So.2d 217,154 Fla. 173
• Parties: WELLS v. MENN.
• Court: Florida Supreme Court

17 So.2d 217

154 Fla. 173

WELLS v. MENN.

Florida Supreme Court

February 4, 1944

Rehearing Denied April 6, 1944.

Appeal from Circuit Court, Dade County; Richard H. Hunt George E. Holt, and Marshall C. Wiseheart, Judges.

Redfearn & Ferrell, of Miami, for appellant Roe E. Wells individually, and H. H. Taylor, of Miami, for appellant Roe E. Wells, as coexecutor.

Evans Mershon & Sawyer, of Miami, for appellee Olga Menn individually, and Evans, Mershon & Sawyer and Shepard Broad, all of Miami, for appellee Olga Menn, as Administratrix of the estate of Paul Menn.

Wilson Trammell, of Miami, for John M. Ogden, coexecutor of will of Emily F. Gilchrist Wells.

James Kytle Williams, of Miami, and Chadbourne Hunt, Jaeckel & Brown, of New York City, of counsel, for appellee.

TERRELL, Justice.

Emily F. Gilchrist Wells, a resident of Dade County, died in a hospital in New York September 5, 1941. Four days later, her will, executed in Dade County, was filed for probate in the County Judge's court of said county. This will left her husband Roe Wells, ten dollars; it gave Paul and Olga Menn, her niece and nephew, each forty per cent of her estate and it gave Elsie King Wilcox another niece, twenty per cent of her estate.

On the same date (September 9, 1941), Roe Wells filed in the County Judge's court of Dade County a photostatic copy of an alleged lost will with his petition to re-establish and probate the same as the last will of his wife, Emily F. Gilchrist Wells. This will was executed by Mrs. Wells thirteen days before her death while she was on her deathbed in the hospital in New York. It named Roe Wells and John M. Ogden as executors of her estate; it gave Roe Wells seventy per cent of her estate, and his twenty year old son, who was not her child, ten per cent of her estate, and it gave Olga and Paul Menn each ten per cent of her estate.

In November, 1941, Paul and Olga Menn filed their answer to the petition of Roe Wells to probate the alleged lost will wherein they challenged its bona fides and demanded strict proof thereof. A hearing was conducted in New York at which much testimony was taken on the issues made by the petition and the answer. The hearing was adjourned to a date and place to be agreed on and was followed by numerous conferences and much negotiation.

On January 6, 1942, Wells and the Menns entered into a 'settlement agreement' whereby the Menns should receive specified assets of the estate free of all debts, claims, taxes, and administration expenses in full settlement of their claim against the estate. They also agreed to permit the lost will to be probated, Wells to qualify as co-executor, and that the 'settlement agreement' be confirmed and effectuated by order of a court of competent jurisdiction.

Prior to the latter proceedings, Roe Wells by counsel settled the claim of Elsie King Wilcox against the estate; Paul Menn died March 22, 1942, and his sister Olga Menn was appointed executor of his estate and Rena Rose Goodman filed a caveat against the probate of the lost will which was also finally disposed of and is not material to this case. Other proceedings were had which we do not deem essential to burden this opinion with.

May 12, 1942, pursuant to notice served on all parties, hearing was held by the probate court on petition to confirm the 'settlement agreement'. Roe Wells and counsel representing all interested parties attended this hearing but Roe Wells was not represented by counsel. The hearing was adjourned to give Wells time to employ counsel to represent him. As coexecutor, he employed counsel who filed objections to confirmation of the settlement agreement. Wells did not resist the confirmation individually. In November, 1942, the probate court entered its order confirming the settlement. He further found that Wells was present in person at the hearing upon the petition and admitted the execution of the agreement, that individually he had not resisted confirmation, that Wells and Ogden as co-executors had been present at the hearing and that the objections of Wells as co-executor had been considered. In his order of confirmation, the court reserved jurisdiction of the petition for the purpose of making other orders appropriate to the disposition of the estate and the rights of the parties interested.

On December 4, 1942, Wells as co-executor moved to vacate the order of confirmation and on the same date, he employed different counsel to represent him individually and they moved to vacate the order of confirmation. Both motions were after argument overruled and appeals taken to the circuit court. A special division of the circuit court of Dade County affirmed each order of the probate court. Wells individually and as co-executor appeals from this order but limits his appeal to that part of the order confirming the settlement agreement as between himself and Olga Menn and her deceased brother.

Had the probate court jurisdiction to...