Judges: PER CURIAM.
Attorneys: Edwin R. Dickenson and Robert W. Patton, for Appellant;
Charles H. Ross and Fred T. Saussy, for Appellees.
Filed: Jan. 04, 1937
Latest Update: Mar. 02, 2020
Summary: William V. Cole died testate in Hillsborough County. In his will he provided that his property should be taken, held, and administered, and the net income *Page 138 therefrom enjoyed by his son, Melvin Victor Cole, subject to an income of not less than one hundred dollars per month to be paid by the administrator to his daughter, Vida Blanche Cole, during her natural life. Cole v. Cole, 88 Fla. 347 , 103 So. 78 ; 102 Fla. 917 , 136 So. 605 ; 106 Fla. 226 , 143 So. 235 . In July, 1930, Melvin Vic
Summary: William V. Cole died testate in Hillsborough County. In his will he provided that his property should be taken, held, and administered, and the net income *Page 138 therefrom enjoyed by his son, Melvin Victor Cole, subject to an income of not less than one hundred dollars per month to be paid by the administrator to his daughter, Vida Blanche Cole, during her natural life. Cole v. Cole, 88 Fla. 347 , 103 So. 78 ; 102 Fla. 917 , 136 So. 605 ; 106 Fla. 226 , 143 So. 235 . In July, 1930, Melvin Vict..
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This Court in the case of Cole v. Cole, 88 Fla. 347,103 South. Rep. 78, did not hold that Melvin V. Cole took a fee simple title to the land embraced in the mortgage to Ellen J. Slagg, nor as for that matter to any part of the real estate which constituted the estate of William V. Cole.
The decree of the Chancellor in the construction of that will held that Melvin V. Cole had the fee simple title but this Court in reviewing that decision said that the import of the will was that "the testator's property shall be taken, held and administered, and the net income therefrom enjoyed, by the testator's son, Melvin, subject to `an income from' the `estate amounting to not less than one hundred dollars per month, to be paid to the testator's daughter, Vida Blanche, during her natural life,' the particular monthly payments to be made to the daughter being subject to the approval of the court to effectuate the testator's intent as shown by the will." Cole v. Cole, supra.
This Court also decided that the administration of the estate was to be under the supervision and control of the Chancellor. This must necessarily mean that any encumbrance of the estate by mortgage must be with the consent and under the direction and control of the Court in which the estate was to be administered. The decree of the Chancellor that Melvin V. Cole held a fee simple title was modified by the decree of this Court.
The will expressly provides that in the event of the death of Melvin V. Cole without issue the daughter, Vida B. Cole, "would inherit and dispose of the estate as sole heir."
This language is utterly inconsistent with the idea of a fee simple estate in Melvin V. Cole.
It does not appear that the mortgage from Melvin V. Cole to Ellen J. Slagg was directed or authorized to be made by the Chancellor, so that the execution of such mortgage encumbering the estate, which must necessarily be regarded as in the administration of it, was without authority and did not encumber the fee simple title of the property mortgaged, even if it were within the power of the Chancellor to direct an encumbrance of the fee simple title without the consent of the owner of the contingent remainder.
There are no elements of either a conventional or equitable subrogation of Ellen J. Slagg to the rights of the State and County to enforce the collection of taxes.
I think, therefore, that the decree of the Chancellor should be reversed.
ON REHEARING
