ELIZABETH EDMONSON AND FRANCES MARIE CLOPTON, A/K/A FRANCES COSPER TATE, APPELLANTS,
v.
FRANK J. ROONEY, INC., ET AL., APPELLEES
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
The court held that the foreclosure decree was invalid because the executor's interest was adverse to the estate, necessitating the appointment of an administrator ad litem, which did not occur.
An executor, who was also an heir, managed his deceased father's estate and used estate property to secure personal loans. Upon default, he initiated …
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Administrator Ad Litem cases and more on FLexlaw
Appellants, certain defendants in a mortgage foreclosure cause, seek review of a final decree of foreclosure upholding a mortgage lien against certain real property-being administered within a probated estate.
From the record it appears that in June of 1952 one William N. Kelley died owning certain real property. That he appointed the appellee, William F. Kelley, as his executor with power of sale and mortgage being specifically granted in the will,1 and he devised his real property to his three children: the appellee William F. Kelley, and the appellants Elizabeth Edmonson and Frances Marie Clopton, a/k/a Frances -Gosper Tate. Thereafter, the estate was ready to be closed and the three heirs were so notified, but they elected to leave the estate proceedings open in order that the appellee, William F. Kelley, could manage the properties. During the past several years the appellee, William F. Kelley, sold certain assets of the estate and divided the proceeds, made certain loans secured by mortgages on the real property for his -own personal use [satisfying certain loans], and ultimately executed several notes secured by mortgages on the property involved in this cause to satisfy certain personal obligations, which were in no wise connected with the administration of the probate estate. Upon default in said notes and mortgages, the instant proceedings were commenced to foreclose two notes secured by mortgages executed by William F. Kelley, as executor of his late father’s estate. No probate order of confirmation was entered, and the other heirs did not join in the note or mortgage. Several counterclaims and cross-claims were duly filed. The chancellor adjudicated the counterclaims adversely and ordered the foreclosure. He reserved jurisdiction to determine the equities between the parties on the cross-claims by the appellants against the appellee, William F. Kelley. The appellants have now brought on for review the propriety of the final decree of foreclosure.
These proceedings involve an asset within the administration of an estate and, it being apparent from the pleadings that the interests of the executor of the estate [to wit: William F. Kelley] were adverse to the estate, it was incumbent upon the chancellor, pursuant to the provisions of § 732.55, Fla.Stat.,1 F.S.A., to have appointed an administrator ad litem. It is apparent from the record that no such appointment was made. It is also apparent that no party requested such an appointment and it was not called to the attention of the chancellor. However, notwithstanding the failure of the parties to call same to the attention of the court, it is mandatory in such a proceeding that *568an administrator be appointed because of the terms of the statute. The proceedings in the trial court being deficient in complying with this provision of the probate law, the foreclosure decree could not be valid and same is therefore reversed.
All parties not being appropriately before the trial court with an opportunity to present pleadings reflecting their respective positions, no comment will be made in this opinion on the points raised on this appeal as to the merits of the controversy. But, this matter will be returned to the chancellor for further proceedings subsequent to the appointment of an administrator upon such issues as may be made by the pleadings filed by the parties.
Reversed and remanded.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Woolf v. Reed, 389 So. 2d 1026 (Fla. 3d DCA 1980)…n re Estate of Herlan, 209 So. 2d 225 (Fla. 1968); Shambow v. Shambow, 5 So. 2d 454, 149 Fla. 278 (1942), reviewed on other grounds, 15 So. 2d 837, 153 Fla. 762 (1943); Fasel v. Cox, 128 So. 33, 99 Fla. 968 (1930); Edmonson v. Frank J. Rooney, Inc., 171 So. 2d 566 (Fla. 3d DCA 1965). An administrator ad litem is an officer of the court, insofar as is every attorney certified to practice therein. However, his primary and overriding duty is to the estate, rather than to the bench; the court may not mandate spe…
-
In re Est. of Florence I. Herlan, 209 So. 2d 225 (Fla. 1968)…court appear in the decision of the District Court at 191 So. 2d 276. Contention is made by petitioner here that the decision is in conflict with Shambow v. Shambow, 149 Fla. 278, 5 So. 2d 454 (1942), and Edmonson v. Frank J. Rooney, Inc., Fla.App., 171 So. 2d 566 (DCA-3, Fla.1965). We agree. See also State ex rel. Booth v. Byington, Fla., 178 So. 2d 1. The District Court was confronted with the question of whether the Administrator ad Litem, under the appointment made, had standing to appeal, which involved…1 / 3
-
Carmelina Messina v. Scionti, 406 So. 2d 529 (Fla. 2d DCA 1981)…t an administrator ad litem, and the time for filing objections to that claim is tolled until the court does so. In re Shambow’s Estate, 5 So. 2d 454 (Fla.1942); Estate of Verdier, 281 So. 2d 543 (Fla.2d DCA 1973); Edmonson v. Frank J. Rooney, Inc., 171 So. 2d 566 (Fla.3d DCA 1965). Appellee concedes that rule, but argues that it applies only where there is but one personal representative. She relies upon a California case, but it must be noted that the California Probate Code2 specifically provides that when…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligence