JOHN F. PEARCE, AS CO-PERSONAL REPRESENTATIVE OF THE ESTATE OF AUSTIN PEARCE, APPELLANT,
v.
JUANITA FOSTER, JOHN AUSTIN COLLIER, JUANELL PEEPLES, ROSA LEE PEARCE, AND D.L. PEARCE, APPELLEES

Fla. 4th DCA | 1984-08-15
No. 83-1038
HURLEY, DELL and WALDEN, JJ., concur.
454 So. 2d 721 Florida District Court of Appeal, Fourth District (1984) Positive Treatment
Cited by 6 cases

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Synopsis

John Pearce, as co-personal representative of an estate, attempted to appeal an order revoking probate of a will without obtaining the concurrence of his co-representative Juanell Peeples. The court remanded the case for a hearing on whether Peeples's refusal to join the appeal constitutes cause for her removal.


Holding

A co-personal representative may not act unilaterally on matters requiring joint concurrence under Florida Statutes section 733.615 without meeting statutory exceptions. However, rather than dismissing the appeal, the court remanded for an evidentiary hearing to determine whether the refusing co-representative's conduct constitutes cause for removal under section 733.504.


Headnotes

[1] Joint personal representatives must act with the concurrence of all, unless the will provides otherwise or an exception applies.

[2] A unilateral appeal by one co-personal representative without the concurrence of the other may be subject to dismissal.

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Key Quotes

“If two or more persons are appointed joint personal representatives, and unless the will provides otherwise, the concurrence of all is required on all acts connected with the administration and distribution of the estate.”

Establishes the statutory requirement for joint concurrence in estate matters under Florida Statutes section 733.615

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Facts & Procedural History

Austin Pearce's estate had two co-personal representatives: John Pearce and Juanell Peeples. An order revoking probate of a will dated September 8, 19…

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Opinion of the Court
PER CURIAM.

PER CURIAM.

Appellant, in his capacity as co-personal representative of the estate of Austin Pearce, seeks to appeal an order revoking probate of a will, dated September 8, 1980. We decline to reach the merits because we discern a deficiency in appellant’s ability to prosecute this appeal.

Appellant filed the notice of appeal without obtaining the concurrence of the co-personal representative, Juanell P. Peeples. Appellee Peeples has challenged this unilateral action by filing a motion to dismiss or quash the appeal. She claims that appellant’s unilateral action contravenes section 733.615, Florida Statutes (1983), which provides that:

If two or more persons are appointed joint personal representatives, and unless the will provides otherwise, the concurrence of all is required on all acts connected with the administration and distribution of the estate. This restriction does not apply when any joint personal representative receives and receipts for property due the estate, when the concurrence of all cannot readily be obtained in the time reasonably available for emergency action necessary to preserve the estate, or when a joint personal representative has been delegated to act for the others.

Since none of the exceptions noted in the statute is applicable in this case, appellant may not act alone. See Messina v. Scionti, 406 So. 2d 529 (Fla.2d DCA 1981). Nonetheless, at this time, we decline to dismiss the appeal. Rather, we relinquish jurisdiction to the trial court to conduct an evidentiary hearing to determine whether appel-lee’s refusal to join in this appeal constitutes cause for her removal pursuant to section 733.504, Florida Statutes (1983).1 Should the trial court find cause for removal, appellant would be authorized to proceed with this appeal. Cf. In re Estate of Goldner, 389 So. 2d 334 (Fla. 4th DCA 1980). In any event, we respectfully request that the trial court furnish us with a copy of the order entered on remand.

REMANDED WITH INSTRUCTIONS.

HURLEY, DELL and WALDEN, JJ., concur. . Section 733.504, Florida Statutes (1983), provides:

Causes of removal of personal representative. —A personal representative may be removed and his letters revoked for any of the following causes, and the removal shall be in addition to any penalties prescribed by law:
(1) Adjudication of incompetency.

(2) Physical or mental incapacity rendering him incapable of the discharge of his duties.

(3) Failure to comply with any order of the court, unless the order has been superseded on appeal.

(4) Failure to account for the sale of property or to produce and exhibit the assets of the estate when so required.

(5) The wasting or maladministration of the estate.

(6) Failure to give bond or security for any purpose. (7) Conviction of a felony.

(8) Insolvency of, or the appointment of a receiver or liquidator for, any corporate personal representative.

(9) The holding or acquiring by the personal representative of conflicting or adverse interests against the estate that will or may adversely interfere with the administration of the estate as a whole. This cause of removal shall not apply to the surviving spouse because of the exercise of the right to the elective share, family allowance, or exemptions, as provided elsewhere in this code.

(10) Revocation of the probate of the decedent’s will that authorized or designated the appointment of such personal representative.

(11) Removal of domicile from Florida, if the personal representative is no longer qualified under part III of this chapter.


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Citator

Cited By

  • …la. 2d DCA 2004) (holding that one co-personal representative did not bind the other co-personal representative to a contingent fee agreement with counsel because the other co-personal representative did not join in the agreement); Pearce v. Foster, 454 So. 2d 721 (Fla. 4th DCA 1984) (holding that a co-personal representative could not unilaterally file a notice of appeal without concurrence of the other co-personal representative). In addition, there was no evidence that Rebeca Ipox had been delegated to act…
  • In re The Est. OF Austin Pearce, 507 So. 2d 729 (Fla. 4th DCA 1987)
    …Pearce’s estate, single-handedly and in that capacity appealed an order revoking probate of a will he had in good faith offered for probate. The basis of the order was undue influence of someone other than appellant. The appeal in Pearce v. Foster, 454 So. 2d 721 (Fla. 4th DCA 1984), ended ultimately in dismissal, because section 733.615, Florida Statutes (1983), requires concurrence of all personal representatives for such an action. The other copersonal representative not only refused to concur in the appe…
  • Costello v. Davis, 890 So. 2d 1179 (Fla. 2d DCA 2004)
    …5(1)). The requirement that joint personal representatives act in concert extends to the- employment of counsel. Rand v. Giller, 489 So. 2d 796,' 797 -n. 4 (Fla. 3d DCA 1986). It also applies to the initiation of legal proceedings. Pearce v. Foster, 454 So. 2d 721 (Fla. 4th DCA 1984) (declining to reach the merits of appeal filed by one of two co-personal representatives and relinquishing jurisdiction to trial court for determination of whether co-personal representative’s refusal to join in appeal constitute…

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