66 Fla. 601 | Fla. | 1914
D. B. Raulerson brought an action at law against W. L. Bradley and G. R. Cooper in the Circuit Court of Columbia County to recover upon two notes for $500.00 each alleged to have been executed on April 4th, 1911, to R. E. Raulerson, deceased at the time the action was brought. The first note was due December 1st, 1911,
The defendant in error relies upon Section 2390 General Statutes of 1906, to show his title. That Section is as follows: “No administration shall be necessary upon any estate where there is a sole heir and the estate is no! indebted; or where the estate is not indebted, and there are several heirs who make division of the property amicably among themselves, or where there is no property except the exempt, homestead and exempt personal property.” This section except the last clause was brought forward in the General Statutes of 1906, from
Section 17 of Article Y of the Constitution of 1885, provides among other things: “The County Judge shall have jurisdiction of the settlement of the estates of decedents and minors, to order the sale of real estate of decedents and minors, to take probate of wills, to grant letters testamentary and of administration and guardianship, and to discharge the duties usually pertaining to courts of probate.” Was it the purpose of the legislature in the original act, or in section 2390, to deprive the County Judge of his constitutional jurisdiction to settle the estate of decedents? We cannot think so. It was competent for the legislature to prescribe the procedure to be followed in administering, and the constitution contains no restrictions upon the form or method of procedure. But it seems to us that to make section 2390 General Statutes of 1906 operative, there must be a judicial ascertainment, by the county judge in the exercise of his constitutional power of the facts that make the section applicable, that is to say that there is a. decedent’s estate, not disposed of by will, that the estate is not indebted, that there is a sole heir, or if more than one heir who they are, and that the property has been amicably divided among them, and what property has been assigned to each heir, or that there is no property except exempt homestead and personal property, and that the decedent left no will. When these facts are a seer
In this case the declaration does not allege that any such procedure was followed. It is upon the assertion of one of the heirs of Raulerson aloné that the declaration depends, and this does not even allege that. R. E. Raulerson died intestate.
The order overruling the demurrer was, we think, erroneous. The judgment below is reversed.