84 Fla. 641 | Fla. | 1922
It appears that Charles Edwin Garner died in Duval County, Florida, April 23, 1915; that his: widow Katherine Greer Garner became sole executrix of the last will and testament of the decedent; that by the will Charles Edwin Garner, the son of the decedent was given a legacy of $10,000.00'; that Charles Edwin Garner, Jr., died intestate July 4, 1916, leaving a widow, Harriett Kraeer Garner, who became administratrix of her husband’s estate; that on May 13, 1917, Harriett Kraeer Gar
“The record of this cause discloses that the will was probated and letters testamentary issued May 10th, 1915; that notice to creditors was published May 15th, 1915; that notice of application for settlement of the estate and discharge of the Executrix was published the 23rd day of December, 1916, ending June 23rd, 1917. The estate should have been settled on this latter date. The time for presentation of claims against the estate had elapsed. The record shows that the estate had abundant funds to pay the legacies and it was not shown that any suits against the estate were pending or that any claim existed which rendered it necessary or expedient to continue the administration. The only reason for continuing this administration, alleged in any report or account filed herein, and in the answer to the rule to show cause is the claim of set off against the legacy to C. E. Garner, Jr. These claims have been heard and rejected. The claim of set off on account of payment of the funeral expenses was fully considered,, after the taking of testimony with regard thereto. The claim of set off on account of the assumption by C. E. Garner, Jr., of the payment of certain notes and mortgages has also been considered and rejected, and of this claim it may now be said that it is without merit upon the showing made by the Executrix. The assumption of these notes and mortgages does not constitute such a debt or claim that can be set off against a legacy. It was not a debt existing at the time of the death of the testator, nor was it an advance made by the Executrix in any necessary administration of. trust property. The order entered herein September 15th,, 1919, was properly made, and should have been promptly obeyed to the extent of paying the balance due on the legacy to Charles E. Garner, Jr., which it appears was the
“The legacy in question should have been paid in full at the expiration of two years from the first publication of notice, to creditors and the legatee is entitled to interest compounded annually from such date. The Court finds the amount now due on account of the legacy to be $2,339.07. The Executrix will be allowed until the 29th day of July, 1920, to pay this amount.
“Upon consideration of this whole matter, it is ordered, adjudged and decreed, that the Executrix, Katherine Greer Garner, do, on or before the 29th day of July, 1920, pay to Harriet Kraeer Garner, as Administratrix of the estate of Charles E. Garner, Jr., deceased, the sum of :$2,399.07 (Two Thousand, three hundred thirty-nine and ..07/100 Dollars) in full settlement of the legacy to Charles E. Garner, Jr., and that in default of such payment being made attachment issued to enforce compliance with this decree;” that a motion made by Katherine G. Garner to set aside the order for final distribution of the estate made September 15, 1919, was denied July 27, 1920; that on August 6, 1920, the following entry of appeal was filed:
“Comes now Katherine Greer Garner, as Executrix of the last will and testament of the said Charles E. Garner, Sr., deceased, .by George M. Powell, her attorney, and enters her appeal from the order of the County Judge of Duval County, Florida, made and dated the 19th day of July, 1920, in the above entitled cause, and files this her written notice of appeal from said order and said court to the Circuit Court of the Fourth Judicial Circuit of the State of Florida, in and for said Duval County; and hereby
The errors assigned were (1) overruling the demurrer to the rule on April 15, 1920; (2) granting .the motion to strike portions of the answer to the rule; (3) the order for distribution made July 19, 1920; (4) refusing to set aside the order of July 19, 1920; (5) making the order of September 15, 1919; (6) refusing to set aside the order of September 15, 1919.
The Circuit Court affirmed the order appealed from. On appeal to this court the order of affirmance is assigned as error.
Even if on the appeal which is taken solely from the order of the county judge dated July 19, 1920, the errors assigned on previous orders not appealed from may be considered upon the theory that except the latter portions of the order, the provisions of the order appealed from are not merely statements of prior adjudications not appealed from, but are substantive rulings as to matters claimed but not allowed in the accounts of the executrix, such rulings apparently accord with the law as applicable to the facts in evidence. The executrix of the will of C. E. Garner, Sr., was not the administratrix of the estate of C. E. Garner, Jr., and she showed no authority to use as a setoff against the legacy of C. E. Garner, Jr., either the funeral expenses of the latter asserted to have been paid by the executrix of the will of C. E. Garner, Sr., or the contract indebtedness asserted on account of a mortgage indebtedness alleged to have been assumed by C. E. Garner, Jr. These matters are stated in the order
Affirmed.