132 So. 2d 308 | Fla. Dist. Ct. App. | 1961
Joseph M. Ruza died intestate. Sophie Ruza is his divorced wife, who holds certain judgments against Joseph M. Ruza.
The deceased is indebted to the United States for gift taxes incurred in 1954, 1955 and 1956. These taxes were assessed on June 19, 1959 and, although the time for filing a claim in the estate of Joseph M. Ruza had expired under the provisions of section 733.16(1), Fla.Stat., F.S.A.
Sophie Ruza filed her appeal from the last mentioned order and asserts here that the order was error because the United States was barred by delay and failure to prosecute its claim against the grantees under the provisions of section 6324(b) of the Internal Revenue Code, 1954, 26 U. S.C.A. § 6324(b), and upon the further ground that the claim of the United States is barred by the failure of the United States to file the claim within eight months, as provided by Florida law.
Examination of the record in the light of the briefs in the appeal of Sophie Ruza, reveals no error. See United States v. Summerlin, 310 U.S. 414, 60 S.Ct. 1019, 84 L.Ed. 1283. The cited case states that a claim of the United States is not barred by a state’s non-claim statute. However, this rule is not applicable or of benefit to the United States for the obvious reason that the funds claimed never became a part of the estate.
Under ordinary circumstances, error may not be urged in the appellate court upon matters not presented to the trial court. E. g., South Dade Farms v. Peters, Fla.1958, 107 So.2d 30; Nelson v. Cravero Constructors, Inc., Fla.App.1960, 117 So.2d 764, 766. In this instance, it appears that the parties have treated certain funds as assets of the estate contrary to the provisions of the Florida Statutes. Since, under this statute, the proceeds of the insurance policy never became an asset of the estate, it is necessary for us to hold that
Remanded.
. See Morgenstern v. Ruza, Fla.App.1958, 101 So.2d 429.
. “ * * * Any such claim or demand not so filed within eight months from the time of the first publication of the notice to creditors shall be void even though the personal representative has recognized such claim or demand by paying a portion thereof or interest thereon or otherwise; * *
.See footnote 2, supra.