IN RE PETERSON'S ESTATE
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A widow sought a construction of her deceased husband's will regarding ownership of real property, but the executor moved to dismiss based on a prior order approving conveyance to himself as trustee. The Florida Supreme Court reversed and remanded, holding that the county judge's order denying the motion to dismiss was not appealable because it did not finally determine the rights of the parties.
The county judge's order of July 21, 1953, denying the executor's motion to dismiss was not appealable because it did not finally determine the rights of either party. The court reversed and directed the circuit court to dismiss the appeal taken from the county judge's order.
“the county judge's order of July 21, 1953, was not an order finally determining the rights of either party to the proceeding in which the order was entered and, therefore, was not appealable”
Establishes the controlling principle that only final orders determining parties' rights are appealable under Florida law
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Join FLexlaw to unlock all legal intelligenceRichard Peterson died and his will was probated in Lake County. On December 11, 1952, the county judge authorized and directed the executor to convey …
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GIBLIN, Associate Justice.
Ida Mathilda Peterson, the widow of Richard Peterson, invoking the provisions of section 732.41 of the Florida Statutes, F.S.A., filed, on July 16, 1953, in the county judge’s court of Lake County ' a petition for the construction of certain provisions of her deceased husband’s will which had been probated in such court, contending that under and because of such-provisions she is the owner of certain real property of which her husband died seized and possessed.
The executor (who had not been finally discharged) moved to dismiss the petition, assigning as grounds for his motion (1) that the court, by a prior order of December 11, 1952 (on the executor’s petition for the approval of his final returns and for an order of distribution and final discharge), had authorized and directed the executor to convey, and he had conveyed, to himself as trustee the real property in dispute and that such order of December 11, 1952, from which no appeal had been prosecuted, “is the law of the case and is res judicata”; (2) that the court, “having fixed the law of this case, is now without jurisdiction over the subject matter”; and (3) that the court “lacks jurisdiction over the person and property.”
By his order of July 21, 1953, the county judge denied the executor’s motion and he appealed to the circuit court from such adverse order. Although the jurisdictional question was not raised in the court below or here, nevertheless it is evident that the county judge’s order of July 21, 1953, was not an order finally determining the rights of either party to the proceeding in which the order was entered and, therefore, was not appealable. See sections 732.15 and 732.16 of the Florida Statutes, F.S.A. Instead of dismissing the appeal, the circuit court (not noting its lack of jurisdiction) by its order of October 23, 1953, affirmed the challenged order; and from the order of affirmance the executor has appealed to this court.
The order of the circuit court from which the appeal to this court has been prosecuted is reversed with the direction that the circuit court, on the remanding of the cause to it, dismiss the appeal taken from the county judge’s order of July 21, 1953.
ROBERTS, C. J., and TERRELL and SEBRING, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
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In re the Est. OF Rose Bierman, 587 So. 2d 1163 (Fla. 4th DCA 1991)…where the personal representative could still object thereto); In re Sager’s Estate, 171 So. 2d 580 (Fla. 2d DCA 1964) (order requiring the personal representative to file an inventory of assets and an amended final return); In re Peterson's Estate, 73 So. 2d 225 (Fla.1954) (order denying a motion to dismiss a petition for construction of certain provision of a will); In re Maxcy’s Estate, 165 So. 2d 446 (Fla. 2d DCA 1964) (orders accepting resignation of fiduciary and requiring her to complete accounting an…
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Auto-Owners Ins. Co. & Robert J. Lowe, Sr. v. The Governor OF Fla., 23 So. 3d 779 (Fla. 4th DCA 2009)…e orders are not deemed final for purposes of appeal.” In re Estate of Bierman, 587 So. 2d 1163, 1166 (Fla. 4th DCA 1991). We do not believe that Rule 9.110(a)(2) was intended to alter the Florida Supreme Court’s holding in In Re Peterson’s Estate, 73 So. 2d 225 (Fla.1954). In that case, the executor moved to dismiss a petition and the motion was denied. The Florida Supreme Court stated that it was “evident” that the order denying the motion to dismiss “was not an order finally determining the rights of eit…