FRANCES L. KING AND SUZANNE L. KING, APPELLANTS,
v.
MABEL E. KING AND FIDELITY AND DEPOSIT COMPANY OF MARYLAND, A MARYLAND CORPORATION, APPELLEES
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The amended complaint should not have been dismissed with prejudice because the circuit court's jurisdiction may be invoked when an adequate remedy is not available in the probate court.
Plaintiffs filed an amended complaint against a guardian and surety alleging wilful misappropriation and conversion of an incompetent's property. The …
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This is an appeal of an order of the circuit court dismissing plaintiffs’ complaint.
Plaintiffs filed their amended complaint in equity against the defendant guardian and her surety seeking, inter alia, imposition of a resulting or constructive trust, an accounting, and injunctive relief. The complaint was bottomed on a wilful misappropriation and conversion of the incompetent’s property. The acts complained of allegedly took place before and during the guardian’s tenure.
It is our view that the amended complaint should not have been dismissed with prejudice. We recognize . the principles announced by this court in McLean v. Little River Bank & Trust Co., Fla.App.1964, 169 So.2d 835, and in Security Trust Co. v. Cannon, Fla.App.1965, 165 So.2d 834 and are of the opinion that the holding in this case is consistent with both of those decisions.
The Security Trust and McLean cases recognize that the circuit court jurisdiction may be invoked when it is made to appear that an adequate remedy in the probate court is not available. Proceedings by way of devastavit could not remedy all of the wrongs alleged in the amended compaint. Hence, plaintiffs should be allowed to amend their complaint to conform with rules announced in the Security Trust and McLean cases, supra. See also Bambrick v. Bambrick, Fla.App.1964, 165 So.2d 449.
The order of dismissal with prejudice is reversed and the cause remanded for further proceedings consistent herewith.
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First Nat'l Bank OF Hollywood v. Broward Nat'l Bank OF Fort Lauderdale, 265 So. 2d 377 (Fla. 4th DCA 1972)…e for the Executor to bypass in favor of the Circuit Court. Further, the Circuit Court had no power to enforce the order of the County Judge’s Court, at least until that court had done all it could in that direction. See King v. King, Fla.App.1965, 178 So. 2d 35, “The circuit court jurisdiction may be invoked when it is made to appear that an adequate remedy in the probate court is not available”, McLean v. Little River Bank & Trust Co., Fla.App.1964, 169 So. 2d 835 and Security Trust Company v. Cannon, Fla…
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First Nat'l Bank IN Fort Lauderdale v. Moon, 234 So. 2d 402 (Fla. 4th DCA 1970)…te, Fla.App.1962, 147 So. 2d 552. . Id at 554. . Section 733.53, F.S.1967, F.S.A. . McLean v. Little River Bank & Trust Co., Fla.App.1964, 169 So. 2d 835. .Security Trust Co. v. Cannon, Fla.App. 1964, 165 So. 2d 834. .Id at 836. .Fla.App.1965, 178 So. 2d 35.…
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Sugarman v. Galbut, 666 So. 2d 266 (Fla. 3d DCA 1996)…issal of the amended petition for surcharge for failure to state a cause of action. Generally speaking, surcharge actions are utilized for the recovery of assets which have been mishandled or misappropriated by the guardian. See, e.g., King v. King, 178 So. 2d 35 (Fla. 3d DCA 1965); In re Nusbaum’s Guardianship, 154 Fla. 49, 16 So. 2d 519 (1944). The purpose of requiring the repayment by the guardian is to make whole the ward’s estate, and it is prompted by the ever present zeal of the courts to protect tho…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Bambrick v. Bambrick, 165 So. 2d 449 (Fla. 2d DCA 1964)
- Sec. Tr. Co. v. The Honorable Pat Cannon, 165 So. 2d 834 (Fla. 3d DCA 1964)
- Leonore McLEAN v. Little River Bank & Tr. Co., 169 So. 2d 835 (Fla. 3d DCA 1964)