STATE OF FLORIDA EX REL., CLARENCE G. ASHBY, ET AL., PETITIONERS,
v.
HONORABLE PAGE HADDOCK, JUDGE OF THE COUNTY JUDGES COURT, IN AND FOR DUVAL COUNTY, FLORIDA, RESPONDENT
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The court held that the statutory notice of probate procedure, when properly followed, makes the order admitting the will to probate conclusive after six months, even for claimants under a prior will.
Petitioners, executors of a probated will, complied with statutory notice of probate. More than six months later, parties claiming under a prior will …
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Petitioners seek review of an order of the District Court, First District, denying writ of prohibition. Certiorari jurisdiction here is based on alleged conflict with Whitelaw’s Estate, Fla.App., 2nd Dist., 133 So.2d 118.1
The petitioners, duly qualified as executors and trustees under the will of Thurs-ton Roberts, deceased, and filed notice of probate under F.S. Sec. 732.28, F.S.A., which provides:
“Notice of probate
“(1) Upon the admission of a will to probate, the personal representative or any other interested party may, at his option, file in the office of the county judge a sworn statement containing the name and residence or post-office address of each legatee or devisee named in the will and of the surviving spouse and each heir at law of the decedent.
“(2) Upon the filing thereof, the county judge shall cause to be duly mailed, postage prepaid, with the return address of the county judge upon each envelope, to each person named in said statement, a notice of the probate of said will. A certificate of such mailing shall be filed by the county judge.
“(3) Thereupon, the county judge shall cause to be published once a week for four consecutive weeks in a newspaper published in the county, four publications being sufficient, a notice addressed to all persons interested, in substantially the following form:
“In the County Judge’s Court “. County, Florida.
“Estate of ., Deceased.
“The State of Florida to all persons interested, in the estate of said decedent:
“You are hereby notified that a written instrument purporting to be the last will and testament of said decedent has been admitted to probate in said court.
“You are hereby commanded within six calendar months from the date of the first publication of this notice to appear in said court and show cause, if any you can, why the action of said court in admitting said will to probate should not stand unrevoked. * *
*554“(6) If no petition for revocation of probate is filed within the time limited aforesaid, the order admitting such will to probate shall be conclusive without further order, upon proof of publication of notice of probate’s being filed and recorded in the office of the county judge. No petition for revocation of probate may be maintained unless filed within said six-month period.” (Emphasis supplied.)
More than six months after petitioners’ compliance with these provisions, there was filed in the probate proceeding a petition for revocation of probate by parties representing themselves as trustees and executors under a prior will of the decedent which had been filed in the probate proceedings for informational purposes, along with an executed revocation of prior wills, before publication of notice of probate. The executors under the probated will, petitioners here, then filed a motion to dismiss the petition for revocation, asserting the bar of Section 732.28, supra, because of lapse of more than six months since publication thereunder. The motion was denied, and proceedings in prohibition were instituted in the district court against the respondent judicial officer to prevent further action by him on the pending petition for revocation of probate.
The district court found in this case2 that Sec. 732.303 unequivocally affords to claimants under prior wills the right to petition for revocation of probate. The decision was, in effect, that the exceptions stated in Sec. 732.30 are exclusive and that the respondent judge had jurisdiction to act upon, and was therefore not required to dismiss, the petition for revocation because the movants were not barred as caveators under 732.29, were not served with citation before probate, and had not waived any rights in the premises. Jurisdiction for review of the decision by cer-tiorari rests upon conflict with the ruling on the same point of law in the case of In re Whitelaw’s Estate, Fla.App.1961, 133 So.2d 118, 120, holding that the exceptions specified in Sec. 732.30 should not be construed to be exclusive so as to nullify the limitations clause of Sec. 732.28.
The cause at bar thus presents an apparent collision between two sections of our probate law, one, Sec. 732.30, containing a general provision allowing revocation proceedings by any potential dis-tributee at any time until final discharge of a personal representative, the other, Sec. 732.28, providing a special procedure by which probate can be made conclusive upon specified notice and lapse of a six-months’ limitation period, terminating with the unambiguous statement: “No petition for revocation of probate may be maintained unless filed within said six-month period.” F.S. Sec. 732.28(6), F.S.A.
Upon application of the established principles of statutory construction so ably delineated in the opinion of the district court4 we conclude that the only reasonable legislative intent expressed by these-two provisions, enacted simultaneously, is that Sec. 732.30 accords and controls the right to file revocation proceedings, subject, as in the case of statutory remedies generally, to the independent limitations provisions of the companion section. As *555held in Whitelaw, supra, we find the stated exceptions5 to be in addition to, rather than in lieu of, the general limitations clause contained in Sec. 732.28. The breadth of language employed in Sec. 732.30(1), together with its ancillary provisions,6 would otherwise render nugatory any proceeding under the limitations section by way of notice of probate. Since, however, the latter procedure is optional, the contrary time limit expressed in 732.30, allowing revocation “at any time before final discharge”, does under our view serve the reasonable purpose of delimiting the remedy in any instance where the procedure for notice of probate is omitted or improperly executed.
We find no support in law or in the literal language of the statute for the conclusion in the opinion below that Sec. 732.28 requires notice by mail on claimants under prior wills, known or unknown, or that publication of notice to “all interested persons” is intended to give rise to limitations against claims of only those persons who have been mailed a notice or have waived such notice. This section clearly contemplates mailing of notice only to those parties enumerated in subsection (1), i. e. “each legatee or devisee named in the will” which has been probated, and to the surviving spouse and heirs, and provides for publication of notice to all others. The statement of limitations consequent thereon is couched in blanket terms and seems susceptible of no ambiguity whatever on its face. We are referred to no authority impinging in any way the decisions in this jurisdiction which have established the in rem nature of probate proceedings and would sustain the propriety of constructive service in the premises.7
The nature of interests represented by trustees claiming under a prior will, and the exposition in the opinion below of law defining the statutory reference to “legatees or devisees,” need not be evaluated in view of our disposition of the cause on the ground that Sec. 732.30 evinces no intent to override the conclusive effect of notice of probate by mail or publication upon all interested parties under Sec. 732.28.
The order of the district court denying writ of prohibition should be reversed and *556the cause remanded for issuance of the writ absolute in accordance with this opinion.
It is so ordered.
TERRELL, Acting C. J., and THOR-NAL, O’CONNELL and HOBSON, (Ret-.), JJ., concur.
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State of Fla. ex rel. Charles E. Booth under the Last Will & Testament of Florence I. Herlan v. Honorable John S. Byington, 168 So. 2d 164 (Fla. 1st DCA 1964)…ement” from acting as judge therein, and on the further ground that the probate of said will became final under the provisions of F.S. § 732.28, F.S.A., and the [*170] rule announced by the Supreme Court of Florida in State ex rel. Ashby v. Haddock, 149 So. 2d 552 (1962). In answer to the rule nisi the respondent, by his attorneys of record, filed an elaborate 'return and an amendment thereto, much of -which deals in polemics having no material hearing on the issues. In pertinent part it .admitted all materi…
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In re Est. of Ann v. Dalton, 206 So. 2d 264 (Fla. 3d DCA 1968)…of the first publication of this notice to appear in said court and show cause, if any you can, * * * ” (All emphasis added.) ‡ :jc % ^ ‡ H? In construing the effect of this statute, the Supreme Court, in State ex rel. Ashby v. Haddock, Fla.1962, 149 So. 2d 552, stated the following: ‡ >{< ‡ ‡ # ‡ “ * * * Since, however, the latter procedure [732.28] is optional, the contrary time limit expressed in 732.30, allowing revocation ‘at any time before final discharge’, does under our view serve the reasonable…
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State of Fla. ex rel. Richard E. Gerstein as State Attorney for the 11th Jud. Cir. of the State of Fla. v. Hialeah Race Course, Inc., 245 So. 2d 53 (Fla. 1971)…riefly noted the following Florida cases concerned with the interaction of conflicting statutes of limitation: Beck v. Barnett National Bank, 142 So. 2d 329 (Fla. 1962); Palmquist v. Johnson, 41 So. 2d 313 (Fla.1949); State ex rel. Ashby v. Haddock, 149 So. 2d 552 (Fla.1963); and Perry v. Reichert, 113 Fla. 125, 151 So. 403 (1933). Among other observations, the federal court said that, “[Fjlorida cases hold that when two statutes limit the time in which an action may be brought, both apply and the dilatory li…
Previewing 3 of 11 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Pitts v. Pitts, 120 Fla. 363 (Fla. 1935)
- In re Est. of Carrie Williamson v. Murphy, 95 So. 2d 244 (Fla. 1956)
- Torrey v. Bruner, 60 Fla. 365 (Fla. 1910)
- Street v. Crosthwait, 134 Fla. 158 (Fla. 1938)
- State of Fla. ex rel. Clarence G. Ashby v. Honorable Page Haddock, 140 So. 2d 631 (Fla. 1st DCA 1962)
- Fla. State Tpk. Auth. v. O'Loughlin & Hansen, Inc., 133 So. 2d 118 (Fla. 2d DCA 1961)
- In re Est. of Wilhelmina Manierre Whitelaw, 133 So. 2d 118 (Fla. 2d DCA 1961)