35 Fla. 423 | Fla. | 1895
On the 14th day of September, 1889, the appellee, Martha M. Chaires, filed her bill in equity in the Circuit Court for Leon county against the appellants, John A. Henderson and Samuel P. Chaires, as executors of Charles P. Chaires, deceased, in which she al
To this bill the defendant executors tiled a plea to. the effect: That Charles P. Chaires died testate on the 17th day of August, A. I). 1881, and that they qualified as executors of his will on the 7th day of September, 1881, and then took possession of the real and personal property of said testator, and that any right of action that the complainant might have had to said real and personal estate, or to any part thereof, accrued at the date of the death of the defendant’s testator, and more than four years before the commencement of this suit, or the filing of the bill of complaint herein; and that if the complainant had any right of action or suit against these defendants for or concerning any of the matters alleged in said bill, that such right or cause of action did not accrue or arise within three years, nor four years, before said bill was filed, and that the said suit was not commenced within three years, nor within four years, after the said cause of action accrued, nor did the defendants at any time within four years before the filing of said bill promise or agree to come to any account, or to make satisfaction, or to pay
The complainant “set this plea down for hearing;” and, after argument, the plea was sustained on the 4th of January, 1890, the judge incorporating in the order sustaining the plea the further order “that the plaintiff have leave to reply to said plea on or before the next rule day.” The complainant then filed a replication -to said plea, reiterating therein the allegations of her bill as to the institution of her proceedings at law for allotment of dower, the judgments or decrees rendered therein by the Circuit Court, the appeals therefrom by the defendant as executors to tire Supreme Court, the decision of the Supreme Court affirming the judgment below as to the allotment of dower in the lands, but reversing it in reference to the allotment in the personalty, but without prejudice to her right to institute .another appropriate proceeding to recover her dower out of the personalty and out of the rents and profits of the realty. The replication farther alleges that the complainant’s bill in the present case was filed on the 14th day of September, 1889, and that she, the repliant,
Upon the filing of the evidence taken before the commissioner, and after repeated postponements of the final hearing noticed for divers dates, a final decree was rendered in the cause on the 22nd day of November, A. L. 1890, in favor of the complainant, adjudging that the sum of $8,596.88 be paid to her by the defendants as executors as her dower of one-half the proceeds of the personalty of said estate-, and for her one-third part of the rents and profits from the lands of said estate, and that said amount was due on the 12th day of August, A. D. 1890, the date of the examiner’s report, and that the said sum should bear interest from that date,, besides the costs of the suit, to be collected out of the goods and chattels, lands and tenements of or belonging to- said estate-. Upon the rendition of this final decree the defendants petitioned the court for a rehearing of the cause upon the following grounds: 1st. Because publication of the testimony in said suit was neither ordered in the clerk’s office by the judge of said court, nor at any time passed in said office by the consent of the parties. 2nd. A motion by defendants- to- suppress a portion of
The first question presented is, did the court below err in overruling the defendants’ plea of the statute of limitations? In Branch vs. Cole, 18 Fla. 368, this court held that actions for the recovery of dower and mesne profits as dower, fell within the provisions of section 12 of Chapter 1869, act of February 27th, 1872, and were barred, unless commenced within four years after the right to such action accrued. The blip -in this cause, however, shows by its allegations that the complainant, within four years after the death of her husband, at which time her right of action, for dower accrued, did institute a proceeding at law in the Circuit Court of Leon county for the recovery of her dower, not only in the realty, but also in the personalty, and -out of the rents and profits in the hands of these defendants as executors from the realty. The bill shows further that that proceeding was protested by these defendants as executors, and that they appealed to this court from the judgments pornounced against them in those proceedings. The bill further alleges that this court, while confirming the judgment at law in so far as the allotment of dower in the lands was concerned, reversed the judgment below as to the personalty, andas to the rents and profits from the realty, not because the complainant was not entitled to dower therein, but because the allotment adjudged of one-half of the rents and profits of the realty 'was too much; that it should have been one-third thereof instead of one-half, and because, under the circum
Section 16 of Chapter 1869, supra, provids that “if an action shall be commenced within the time prescribed therefor, and a judgment therein for the plaintiff be reversed on appeal, the plaintiff, or if he die and the cause of action survives, his heirs or representatives, may commence a new action within one year-after the reversal.” The bill in this case was filed within much less than a year after the reversal by this court of the judgment at law of the Circuit Court awarding the dower in the personalty and rents of the-realty that is the subject-matter of this suit. We think, therefore, that the allegations of the bill completely avoided the bar of the statute set up by the-plea. And as there was no answer accompanying the plea denying the allegations of fact in the bill that avoided the bar set up by the plea, those allegations-not thus denied were to be taken as true, and the court should have overruled the plea on the hearing when it was first “set down for a hearing” upon the bill and. plea, without requiring the complainant to reply thereto. Whenever, in such cases, the matter set up-by plea, to be effectual as a bar, requires a denial of allegations contained in the bill that work an avoidance of such bar, then the plea, to operate as a bar,.
It is now contended that the decree appealed from awarded too large an amount. How the court below arrived at the amount decreed, we are unable to see from the record before us. The bill prayed for an accounting from the defendants as executors for the rents and profits realized by them from the lands of the estate. Instead of accounting by and in their answer,, as they should have done, the answer contains nothing-more than a bare denial of the allegation in the bill that the rents received amounted to a given sum, and avers that the rents received amounted to a much less sum than is alleged in the bill, but how much less, or what sum was actually received for rents, it fails to state. Yet the complainant, instead of requiring a. full and complete accounting from the defendants by their answer under oath, rested content with the vague and indefinite answer filed, replied thereto, and went, to the proofs thereon. The commissioner or master who took the testimony fails to state any account from, the testimony, contenting himself with simply reporting to the court the testimony in bulk as it was taken,, leaving to the court the task of fishing out from a confused mass of disconnected accounts, purporting to be annual returns filed by the executors in the probate-court, the items for which the parties could be legitimately debited and credited; and, in this condition,, the case has been dumped into the lap of this court,.
We find also in these returns of the executors, as-
The decree appealed from is reversed, with directions, to enter a decree in its stead in favor of the complain