EILEEN M. BRAKE AND DENNIS L. MURPHY, JR., APPELLANTS,
v.
EVE E. MURPHY, RICHARD MURPHY, AND HERBERT STETTIN, AS SUCCESSOR PERSONAL REPRESENTATIVE OF THE ESTATE OF EILEEN ELLIS MURPHY, DECEASED, APPELLEES
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The court held that the trial court erred in denying the appointment of the alternate personal representative named in the will, as taking sides in estate disputes does not constitute a legal disqualification.
The trial court declined to appoint Dennis Murphy, Jr. as successor personal representative because it believed he would not be objective due to past …
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PER CURIAM.
We conclude that no error has been demonstrated in the order under review save for that portion of the order which denies the appointment of Dennis Murphy, Jr. as the successor personal representative of the Estate of Eileen Ellis Murphy.
Mr. Murphy is named in the testator’s will as the alternate personal representative, and no legal reason has been shown below why he is legally disqualified from so serving in accord with the testator’s wishes. Plainly, Mr. Murphy has no conflict of interest with respect to this estate such as the conflict of interest which Eileen Brake has and which, quite properly, led to Mrs. Brake’s removal as personal representative. The trial court, nonetheless, declined to appoint Mr. Murphy because it concluded that he would not be objective and neutral and would not serve the best interest of the estate as he has in the past taken sides with respect to certain disputes which have arisen in this estate. We do not understand, however, that taking positions concerning estate disputes constitutes a legal reason for disqualifying Mr. Murphy; plainly a personal representative often must take sides in disputes which may arise with respect to an estate. State v. North, 159 Fla. 351, 32 So. 2d 14 (1947); In re Estate of Mindlin, 571 So. 2d 90 (Fla. 2d DCA 1990); In re Estate of Kenton, 423 So. 2d 531 (Fla. 5th DCA 1982), rev. denied, 436 So. 2d 99 (Fla.1983); § 733.301(l)(a), Fla.Stat. (1989).
The order under review is affirmed, save for that portion of the order which appoints Herbert Stettin as the successor personal representative of the Estate of Eileen Ellis Murphy, and the cause is remanded to the trial court with directions to appoint Dennis Murphy, Jr. as the successor personal representative of the above estate.
Affirmed in part; reversed in part and remanded.
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Citator
Cited By
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THE Florida BAR v. Brake, 767 So. 2d 1163 (Fla. 2000)…(Fla. 3d DCA 1994), vacated by Brake v. Murphy, 693 So. 2d 663 (Fla. 3d DCA), review denied, 700 So. 2d 686 (1997); Murphy v. Estate of Murphy, 621 So. 2d 443 (Fla. 3d DCA 1993); Brake v. Stettin, 599 So. 2d 669 (Fla. 3d DCA 1992); Brake v. Murphy, 591 So. 2d 1025, 1026 (Fla. 3d DCA 1991), enforcement denied, Brake v. Murphy, 626 So. 2d 325 (Fla. 3d DCA 1993); In re Estate of Murphy, 573 So. 2d 424 (Fla. 3d DCA 1991); Brake v. Estate of Murphy, 559 So. 2d 1146 (Fla. 3d DCA 1990). [*1166] The referee recommend…
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Brake v. Eve E. Murphy, 626 So. 2d 325 (Fla. 3d DCA 1993)…PER CURIAM. This is the fifth motion to enforce our mandate in Brake v. Murphy, 591 So. 2d 1025 (Fla. 3d DCA 1991), in which we reversed a trial court order entered in the probate of the estate of Eileen Ellis Murphy and directed that Dennis L. Murphy, Jr. be named as the successor personal representative of the subject estate. The trial court…
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Brake v. The Est. OF Eileen Ellis Murphy, 678 So. 2d 374 (Fla. 3d DCA 1996)…a. 3d DCA), mandamus denied, 666 So. 2d 142 (Fla.1995), cert. denied,—U.S.——, 116 S.Ct. 1019, 134 L.Ed.2d 99 (1996); Murphy v. Estate of Murphy, 621 So. 2d 443 (Fla. 3d DCA 1993); Brake v. Stettin, 599 So. 2d 669 (Fla. 3d DCA 1992); Brake V. Murphy, 591 So. 2d 1025 (Fla. 3d DCA 1991); In re Estate of Murphy, 573 So. 2d 424 (Fla. 3d DCA 1991); Brake v. Estate of Murphy, 559 So. 2d 1146 (Fla. 3d DCA 1990). . Dennis Murphy since died, and the personal representative of his estate is the party in this appeal. .…
Authorities Cited
- THE State OF Fla. & Millard Caldwell v. North, 159 Fla. 351 (Fla. 1947)
- State v. Fla. State Improvement Comm'n, 159 Fla. 351 (Fla. 1947)
- In re The Est. OF John W. Kenton, Jr. v. Kenton, 423 So. 2d 531 (Fla. 5th DCA 1982)
- In re Est. OF Jeremy Mindlin v. Mindlin, 571 So. 2d 90 (Fla. 2d DCA 1990)