Monks v. SmithMonks v. Smith
Gregory D. Smith of Gregory D. Smith, P.A., Pensacola, pro se.
Jon W. Searcy, Pensacola, for appellee University of Michigan.
Carol H. Stewart of Burr & Forman, Birmingham, for appellee Livingston University.
ALLEN, Judge.
This case presents three consolidated appeals of Eva Norine Monks, former personal representative of the estate of George Richard Monks, arising out of a surcharge action brought against Monks by the successor personal representative, Gregory D. Smith. The trial court issued an order finding that Monks had violated her fiduciary duty to the estate and converted unaccounted for assets of the estate. The court also assessed Monks for all attorneys fees and costs of Smith, as well as those of the intended beneficiaries of the estate, Livingston University and the University of Michigan. Although the deceased had devised his home to Monks, the trial court also issued an order denying Monks‘s petition to have the property declared homestead and then authorized Smith in another order to convey the decedent‘s house to the University of Michigan as reimbursement for costs and attorneys’ fees of the successor personal representative that the University of Michigan had advanced.
The trial court‘s determination that Monks converted the unaccounted for assets is amply supported by the evidence at trial. There was also no error in the assessment against Monks of all costs and attorneys’ fees in this case. See
Monks argues that the trial court erred in not declaring the decedent‘s residence homestead and in then distributing it to the University of Michigan as payment for Smith‘s fees and costs that the University of Michigan had advanced. The trial court found that Monks had either waived or was estopped from asserting homestead because she had always treated the property as an asset of the estate, rather than belonging to her personally. The court specifically relied on Monks’ having listed the property as nonhomestead on the inventory, having used proceeds from the rents to pay estate expenses, and having collected rent and having sued to recover rent in the name of the estate, rather than in her name individually.
There can be no question but that the property was decedent‘s homestead during his lifetime. See
Monks did not “waive” her rights to homestead protection in the traditional sense. She did not sign a written agreement relinquishing any such rights, see, e.g., City National Bank Of Florida v. Tescher, 578 So. 2d 701 (Fla. 1991) (surviving spouse had signed antenuptial agreement that waived interest in the homestead), or otherwise comply with the statutory requirements for disclaimer. See
Where a decedent is survived by a spouse or lineal descendants, homestead property is not regarded as an asset of the estate and is not subject to administration by a personal representative. Spitzer v. Branning, 135 Fla. 49, 184 So. 770, 772-73 (Fla. 1938); Cavanaugh v. Cavanaugh, 542 So. 2d 1345 (Fla. 1st DCA 1989). Under such circumstances, the homestead passes to the heirs completely outside of the will, by operation of law. See, e.g., Chapman v. Chapman, 526 So. 2d 131, 134 (Fla. 3d DCA 1988). In fact, a homestead may not be devised where a decedent has a spouse or minor children, except to the spouse when there are no minor children,
In this case, of course, there is no spouse and there are no minor children, and the decedent was therefore free to devise his homestead to his sister. See City National Bank of Florida v. Tescher, 578 So. 2d 701 (Fla. 1991) (homestead devised through residuary clause where there were no minor children and the spouse had waived homestead rights). Sun First National Bank of Polk County v. Fry, 579 So. 2d 869 (Fla. 2d DCA 1991) (decedent‘s
The homestead in this case was an asset of the estate for purposes of effecting the devise in the will. That Monks treated it as such in collecting rents and bringing suit in the name of the estate was entirely proper. There is nothing in Monks‘s actions that suggests she was disclaiming her right to take the property free from creditors’ claims. Had she affirmatively represented to a third party that the property was not homestead, and that party relied on such representation to his detriment, the appellees would have a classic case of estoppel. However, that is not what happened in this case.
Further, even if the homestead property had not been an estate asset, the fact that Monks in her capacity as personal representative treated the property as an asset of the estate would have no bearing on her individual claim to homestead as a beneficiary and heir under the will. See In re Estate of Cleeves, 509 So. 2d 1256 (Fla. 2d DCA), review denied, 518 So. 2d 1273 (Fla. 1987), and 518 So. 2d 1274 (Fla. 1987). In Cleeves, the appellant argued that a surviving spouse‘s petition as copersonal representative for an order to include the property at issue as a probate asset and not homestead property evidenced her intent to waive and relinquish her rights to the homestead property. The court soundly rejected that argument:
Valentina B. Cleeves individually and Valentina B. Cleeves as copersonal representative of the decedent‘s estate are as separate and distinct in law as if they were two different individuals. The petition Mrs. Cleeves filed as copersonal representative of the estate, therefore, would not serve to waive or disclaim any interest which she has as an individual in the decedent‘s property.
Id. at 1259. See also Cavanaugh, 542 So. 2d at 1351 (“mere inclusion of the description of the homestead property in pleadings or orders in probate proceedings does not work to change the status of that property as homestead“). Similarly, in this case, all the acts that appellees claim constitute waiver or estoppel were acts of Monks in her capacity as personal representative. They point to no act that she committed individually that might have evidenced an intent to waive or disclaim her rights to the homestead protection.
The real impetus behind the court‘s decision seems more closely tied to the alternative reasoning expressed in the order: that Monks’ unclean hands should prevent her from taking anything under the will. As the court notes, unclean hands is an equitable defense. However, “[t]he homestead protection has never been based upon principles of equity.” Public Health Trust of Dade County v. Lopez, 531 So. 2d 946, 951 (Fla. 1988). The surcharge proceeding against Monks may have been entirely appropriate, and certainly Monks will be personally liable for the judgment against her. But that in itself is an entirely separate issue from the legal question of homestead, to which the equitable defense of unclean hands has never applied. Accordingly, we conclude that the court should have declared the decedent‘s house to be homestead and that it erred in awarding the house to the University of Michigan.
The appellees suggest that the court‘s error is harmless since the property is not protected “for all time,” but is subject to a lien by virtue of the adverse surcharge judgment. The appellees’ point seems to be that they will get the house eventually, so no harm was done by awarding it prematurely. This assertion, however,
Accordingly, we reverse the order denying the petition to determine homestead real property and the portion of the trial court‘s order directing the successor personal representative to convey the decedent‘s homestead to University of Michigan. We affirm as to all other points.
SMITH and WEBSTER, JJ., concur.