171 So. 2d 566 | Fla. Dist. Ct. App. | 1965
Appellants, certain defendants in a mortgage foreclosure cause, seek review of a final decree of foreclosure upholding a mortgage lien against certain real property-being administered within a probated estate.
From the record it appears that in June of 1952 one William N. Kelley died owning certain real property. That he appointed the appellee, William F. Kelley, as his executor with power of sale and mortgage being specifically granted in the will,
These proceedings involve an asset within the administration of an estate and, it being apparent from the pleadings that the interests of the executor of the estate [to wit: William F. Kelley] were adverse to the estate, it was incumbent upon the chancellor, pursuant to the provisions of § 732.55, Fla.Stat.,
All parties not being appropriately before the trial court with an opportunity to present pleadings reflecting their respective positions, no comment will be made in this opinion on the points raised on this appeal as to the merits of the controversy. But, this matter will be returned to the chancellor for further proceedings subsequent to the appointment of an administrator upon such issues as may be made by the pleadings filed by the parties.
Reversed and remanded.
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“ * * • I further confer upon him full authority and power to sell, transfer, mortgage or pledge the whole or any part of my estate at public or private sale with or without notice and to execute any and all instruments that may be deemed necessary or advisable to carry the foregoing powers into full force and effect.”
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. “732.55 Administrator ad litem.— Whenever, in any proceeding before the county judge or in equity in the circuit court, it is necessary that the estate of a deceased person be represented and when there is no personal representative of such estate or when the personal representative is interested adversely to said estate or in such proceeding is enforcing Ms own debt or claim against the estate, the court in which the proceeding is pending shall appoint an administrator ad litem without bond for that particular proceeding. Whenever the facts authorizing such appointment appear of record or are otherwise made Imoivn to the court, the court shall without notice appoint such administrator ad litem. The administrator ad litem shall, upon appointment, make and file an oath to discharge his duties faithfully, and said proceeding shall then be further maintained, prosecuted or .defended, insofar as said estate is concerned, by said ad-minstrator ad litem and in his name as such.” [emphasis added]