ELLEN PALMQUIST, A SINGLE WOMAN,
v.
IVAN H. JOHNSON AND INGEBORG S. JOHNSON, HUSBAND AND WIFE
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The Florida Supreme Court reversed a lower court's dismissal of a bill in equity, finding that an heir and devisee could bring a suit to quiet title to real property even if the will had not yet been probated, as long as the personal representative was made a party.
Yes, an heir or devisee may bring a suit to quiet title to real property even if the will has not been probated, provided that the personal representative is made a party to the suit.
“Heirs or devisees of the decedent may themselves or jointly with the personal representative bring and maintain actions or suits for the possession or recovery of real property of the estate or for the purpose of quieting title thereto against anyone except the personal representative.”
Establishes the statutory right of heirs or devisees to bring actions concerning estate property.
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Join FLexlaw to unlock all legal intelligenceAppellant filed a bill in equity to remove a cloud on title to real estate, claiming the property as the sole heir and devisee of her deceased mother.…
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A bill in equity was filed by appellant to remove a cloud on title to real estate.
The bill was dismissed because it showed on its face that appellant was claiming the property as the sole heir of her deceased mother and as sole devisee under her -mother’s will; that the will had never been probated; that no administrator had been appointed and no order had been entered dispensing with an administration of the mother’s estate.
Did the will then show any right in appellant to bring the suit? Surely no right can be asserted under the will before probation. Murphy v. Murphy, 125 Fla. 855, 170 So. 856. See Sec. 733.02, F.S. ’41, F.S.A.:
“. . . Heirs or devisees of the decedent may themselves or jointly with the personal representative bring and maintain actions or suits for the possession or recovery of real property of the estate or for the purpose of quieting title thereto against anyone except the personal representative. In any suit to quiet title brought by an heir or devisee, the .possession of the personal representative shall, for the purpose of such suit, be deemed the possession of the heir or devisee. ' In all actions or suits involving the title to real property, against an estate for the possession or recovery of real property, or for the purpose of quieting title thereto, the personal representative and the heirs or devisees of such property shall be made parties.”
It seems clear that under this statute the heir may bring the suit. See also Redfern on Wills, Section 267.
The briefs are limited to this question and we do not pass upon the sufficiency of the bill in other respects.
The decree is reversed for further proceedings.
CHAPMAN, C. J., TERRELL and BUFORD, JJ., concur.
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Citator
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Doyle Pope v. Pinkerton-Hays Lumber Co., Inc., 120 So. 2d 227 (Fla. 1st DCA 1960)…ter County Tel. & Tel. Co., supra note 5. . (Note: This test has not been utilized by Florida Courts to date); 155 A.L.R. 164. . 155 A.L.R. 164. . 23 Fla.Jur., Negligence, § 36. . Prosser on Torts, p. 353. . Johnson v. Wood, 1945, 155 Fla. 753, 21 So. 2d 353; Moore v. Lanier, 52 Fla. 353, 42 So. 462; 38 Am.Jur., Negligence, Sec. 70. . See Cases cited under Note 1. . Seaboard Air Line Ry. Co. v. Muffin, 70 Fla. 450, 70 So. 467, L.R.A.1916D, 982. . See Cone v. Inter County Tel. & TeL Co., Fla.1949, 40…
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Crutchfield v. Charles W. and Bessie Adams, 152 So. 2d 808 (Fla. 1st DCA 1963)…invitee is normally considered to be one who enters the premises of another for purposes connected with the business of the owners or occupant of the premises.” [Emphasis supplied.] . 23 Fla.Jur., Negligence, § 54. . Johnson v. Wood, 155 Fla. 753, 21 So. 2d 353 (1945). . Adler v. Copeland, 105 So. 2d 594 (Fla.App.3d, 1958). . Key West Electric Co. v. Roberts, 81 Fla. 743, 89 So. 122, 17 A.L.R. 807 (1921). . Stark v. Holtzelaw, 90 Fla. 207, 105 So. 330, 41 A.L.R. 1323 (1925). . May v. Simmons, 104 Fla.…1 / 3
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Ted M. Banks v. Mason, 132 So. 2d 219 (Fla. 2d DCA 1961)…risprudence of this state. Stark v. Holtzclaw, 1925, 90 Fla. 207, 105 So. 330, 41 A.L.R. 1323; May v. Simmons, 1932, 104 Fla. 707, 140 So. 780; Peters v. City of Tampa, 1934, 115 Fla. 666, 155 So. 854; and [*221] Johnson v. Wood, 1945, 155 Fla. 753, 21 So. 2d 353. See also Carter v. Livesay Window Co., Fla., 1954, 73 So. 2d 411; and Cockerham v. R. E. Vaughan, Inc., Fla. 1955, 82 So. 2d 890, 891, where the question of whether there existed an “inherently dangerous condition” was controlling. However, in the…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Murphy v. Murphy, 125 Fla. 855 (Fla. 1936)