IN RE ESTATE OF MARIE E. CHADWICK, DECEASED. MAX LANDER, APPELLANT,
v.
DONALD BUSCH, EXECUTOR OF THE ESTATE OF MARIE E. CHADWICK, DECEASED, APPELLEE
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Max Lander, a creditor of the Chadwick estate, sought removal of Donald Busch as executor based on Busch's non-resident status and lack of statutory qualifications. The court reversed the lower court's denial of the removal petition and remanded the case, finding that Busch, as a non-resident grandson of the decedent's sister, lacked the requisite familial relationship required by Florida law.
A non-resident who is not a lineal relation and does not fall within the statutory exceptions—including being a nephew, but not a grand-nephew—of the decedent cannot qualify as executor under Fla. Stat. § 732.47(1). Therefore, Busch's removal must be granted.
[1] A non-resident cannot qualify as a personal representative of a Florida estate unless they are a legally adopted child, adoptive parent, related by lineal consanguinity,…
[2] A grandnephew is not included within the statutory definition of a nephew for the purpose of qualifying as a personal representative of a Florida estate.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“A person who is not an actual bona fide resident of the state cannot qualify as a personal representative of an estate in Florida, unless such person is a legally adopted child of the decedent, an adoptive parent or is related by lineal consanguinity to the decedent or is a spouse or a brother, sister, uncle, aunt, nephew or niece of the decedent.”
Establishes the statutory framework that governs who may serve as executor; the lack of 'grand-nephew' in this list is critical to the holding
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceDonald Busch, a non-resident of Illinois and grandson of the decedent Marie E. Chadwick's sister, was named executor under Chadwick's will and receive…
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[*588] SCHEB, Judge.
The appellant, Max Lander, a creditor of the estate of the late Marie E. Chadwick, seeks review of the lower court’s denial of his petition for removal of the appellee, Donald Busch, as executor of said estate.
The appellee is a grandson of the decedent’s sister and a resident of the State of Illinois. He was named executor under the decedent’s will and letters testamentary were issued to him on June 13, 1973. Since that time appellee has continued to serve as executor. The appellant petitioned for removal of the appellee on grounds that he lacks the requisite qualifications for a non-resident to serve as a personal representative of the estate of a Florida decedent.
Fla.Stat. § 732.47(1) provides:
A person who is not an actual bona fide resident of the state cannot qualify as a personal representative of an estate in Florida, unless such person is a legally adopted child of the decedent, an adoptive parent or is related by lineal consanguinity to the decedent or is a spouse or a brother, sister, uncle, aunt, nephew or niece of the decedent. However, any person who has qualified in Florida as a personal representative prior to the effective date of this law may continue to serve in such capacity. (Emphasis supplied)
Since the appellee is a non-resident and is not related to the decedent by lineal consanguinity, and since the term “nephew” does not include a “grand neph-. ew” it is apparent he does not possess the requisite statutory qualifications to authorize his appointment as executor. Although we have not been favored by a brief on behalf of the appellee who is represented by counsel in the lower court, we have examined the contentions and arguments advanced by the appellee before the court below. In Re Sherman’s Estate, 1941, 146 Fla. 643, 1 So. 2d 727, was cited to the probate court as authority to decline to remove an executor lacking in statutory qualifications. In Sherman the estate was essentially wound up, the petitioner seeking removal had no justiciable interest in the subject matter and had actually cooperated with the petitioner in the estate administration. Here the appellant is actively litigating claims against the decedent’s estate and the record does not reveal the estate administration is presently being concluded; hence Sherman does not appear applicable to the case sub judice.
The appellant raised a further point concerning denial of a motion for change of venue, however, we find no merit in the argument on this point.
The lower court’s denial of appellant’s petition to remove appellee is reversed and the cause remanded.
BOARDMAN, Acting C. J., and GRIMES, J., concur.
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Citator
Cited By
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Adriaan Angelus v. Pass, 868 So. 2d 571 (Fla. 3d DCA 2004)…d from serving as personal representative because Pass is a nonresident nephew-in-law. See In re Estate of Angeleri, 575 So. 2d 794 (Fla. 4th DCA 1991)(nephew is related by collateral consanguinity not linear consanguinity); In re Chadwick’s Estate, 309 So. 2d 587 (Fla. 2d DCA 1975). Thus under Section 733.304 and Rule 5.310, Angelus, as an interested party, properly petitioned to remove Pass as personal representative. The three-month statute of limitations period contained in Section 733.212(3) does not ap…
Authorities Cited
- In re Est. of Lawrence Y. Sherman v. Spitler, 146 Fla. 643 (Fla. 1941)