On petition for rehearing it is contended that there has never been an order adjudicating the solvency or insolvency of the Watkins Estate by the Circuit Court of Alachua County, Florida, under the bill of complaint brought under Section 5653 C. G. L., filed October 27, 1930, by the representatives of the Watkins Estate. The record shows that on October 29, 1930, the Phifer State Bank, a creditor, filed an answer to the bill of complaint filed by the representatives of the estate and incorporated therein a motion to dismiss and the Sheriff of Alachua County, on the same day answered the bill of complaint by adopting the one filed by the Phifer State Bank.
The allegations of the bill of complaint and the answer on said issue are, viz:
"11. Your orators further show to the court that the Estate of the said J.D. Watkins, deceased, exceeds the gross sum of $500.00, and that they, and each of them, believe that the said Estate is indebted to an amount greater than the value thereof, and your orators suggest to the court that the said Estate is probably insolvent, and that they believe the said Estate to be insolvent, and that the said Estate was insolvent at the time of the death of J.D. Watkins, deceased, and ever since."
The answer contains the following admission and denial:
"XI. Answering the eleventh paragraph of the Bill of Complaint this defendant admits that the value of the Estate of J.D. Watkins, deceased, exceeds the gross sum of Five *Page 721 Hundred ($500.00) Dollars, but denies that the complainants believe that the said estate is indebted in an amount greater than the value thereof and denies that the said estate was insolvent at the time of the death of the said J.D. Watkins."
The record fails to show an order adjudicating the solvency or insolvency made or entered by the lower court as contemplated by Section 5653 C. G. L., but an order dated November 30, 1931, was entered by the Circuit Court of Alachua County, Florida, authorizing the settlement of claims against the Watkins Estate held by the Phifer State Bank, John W. Barrs, and Carrie Barrs Watkins. The petition on the part of the representatives of the estate to compromise claims against the estate, and upon which the order last referred to is predicated, contains the allegation, viz.:
"5. Your petitioners have therefore during the past six months or longer initiated and carried on negotiations with the several creditors of the Estate for the purpose of effecting a reasonable compromise of their claims, in order that the Estate may be speedily wound up without undergoing the delay and loss involved in the pending litigations that some reasonable settlement with creditors be effected and that something be saved out of the Estate for the widow of J.D. Watkins, deceased, one of your petitioners."
It is the duty of the lower court, after hearing all the testimony of the respective parties on the issues made by the parties on the solvency or insolvency of an estate, to make and enter such an order thereon as the proof will justify. It is fundamental that the allegations of the bill of complaint filed October 27, 1930, made a prima facie showing that entitled the representatives of the Watkins Estate to all the relief provided for by Section 5653 C. G. L. *Page 722 The proof of the allegation of insolvency can or may be controverted, admitted or waived, but it is not necessary to consider this item on this record at this time for a decision of this case.
It is next contended that the following language of the opinion, viz.: "We think the bill of complaint contained, substantially, the allegations required by Section 5653 C. G. L., and that the order restraining the sale of the property of the Watkins Estate under the writ of execution based on the judgment in behalf of the Phifer State Bank was proper and without error." — is not supported by the record, because: (a) the record does not show an order restraining the sale under the writ of execution; (b) the directions to the clerk for the preparation of the transcript as given by counsel for the respective parties fail to include an injunction order; (c) there is no basis in the record for the language, supra. Out of the greatest deference to the views and conclusions of counsel for the petitioner, we are directing their attention to the language appearing in the sworn petition of the representatives of the Watkins Estate filed September 7, 1936, and appearing at pages 41 and 42 of the record, viz.:
"1. That on the _____ day of October, 1930, your petitioners filed their bill of complaint in this cause, suggesting the insolvency of the estate of J.D. Watkins, deceased, and praying for an injunction against the enforcement by the defendant, Phifer State Bank, of a certain judgment at law recovered by said bank against the estate of J.D. Watkins, deceased, as is more fully set forth in the original bill of complaint on file in the office of the clerk of this court, reference to which bill of complaint is hereby made and the same is hereby incorporated in this petition and made a part hereof. *Page 723
"2. That thereafter your petitioners as complainants applied for an injunction against the Phifer State Bank as aforesaid, before the Honorable A.V. Long, then a Judge of said court, and after hearing an argument on behalf of the Phifer State Bank in opposition for said injunction, the same was granted by order made and filed herein, reference to which is hereby made and is made a part of this petition."
We think the recital in the sworn petition, supra, appearing in the transcript as to the issuance of the restraining order fully justifies this Court in the use of the language appearing in the opinion. On page 4 of the first brief of counsel for appellant appears a reference to the restraining order. It is true that the brief of counsel for appellee is to the effect that the record did not contain a copy of the restraining order. The record sustains the use of the language, supra.
Counsel for petitioner contends that the record in this cause does not sustain the language of the opinion, viz.:
"It was made to appear under the compromise plan that the Phifer State Bank received the initial payment of $1,000.00 and a conveyance of real property to it situated at Micanopy, and a reconveyance by the bank to the representatives of the estate of certain real estate situated in Duval County obtained at execution sale, and that the depression had rendered it impossible to carry out the compromise settlement among creditors as approved by the Circuit Court of Alachua County."
The answer to this contention is found in the sworn petition filed by the representatives of the Watkins Estate on September 7, 1936, appearing in the transcript from page 41 to page 48 in the use of the language, viz.
"3. Thereafter your petitioners entered into negotiations with the Phifer State Bank and other creditors of the estate *Page 724 of J.D. Watkins, deceased which resulted in an agreement evidenced by the letters of their several attorneys that the judgment of the Phifer State Bank should be compromised and settled in full upon certain terms and conditions, subject to the approval of this court, as the court wherein and whereby the said insolvent estate was being administered pursuant to the provisions of Section 5653, et seq., of the Compiled General Laws of Florida, and your petitioners undertook to present said agreement to the court for its approval, which was thereupon done by petition duly filed in this cause, reference to which petition is hereby made and said petition being incorporated in this petition and made a part hereof. That said petition fully and fairly set forth the specific agreement for compromise theretofore reached and entered into between your petitioners and the Phifer State Bank.
"4. That said petition for leave to compromise said judgment was duly presented to the Honorable A.V. Long sitting as Judge of this court, on November 30, 1931, and the Phifer State Bank, by its attorneys, Adkins and Richardson, and the attorneys for the petitioners herein, appeared before the said court and consented to the granting of said petition, and the court thereupon made and entered its order herein on November 30, 1931, approving the proposed compromise and authorizing the complainants to proceed with and carry into effect the settlements as outlined in said petition.
"5. That shortly thereafter in pursuance of the agreement entered into as aforesaid between your petitioners and the Phifer State Bank, your petitioners executed and delivered to said bank their quitclaim deed covering the real property in Duval County mentioned and described in the bill of complaint herein, and paid to the said Phifer State *Page 725 Bank the sum of $1,000.00 in cash out of the moneys in the hands of your petitioners belonging to the said estate, and the Phifer State Bank received and accepted the said deed and money as part performance by your petitioners of the aforesaid agreement for compromise.
"6. That it was understood and contemplated as a part of the aforesaid agreement for compromise, that the balance of the consideration payable to the Phifer State Bank under said agreement, namely: the conveyance of said lands in Micanopy, Florida, and the payment of an additional sum of $2,500.00 in cash, would be made within six months after November 30, 1931. Owing to the depression which was then becoming more severe and the lack of liquid assets belonging to the estate, your petitioners found it impossible to comply with said agreement in full within the said six months period, and by mutual understanding and agreement the time for performance thereof by your petitioners was extended indefinitely, subject to the right of the Phifer State Bank at any time to demand complete performance of said agreement for compromise within a reasonable time thereafter.
"7. That on November 1, 1932, long after the expiration of the six months period for performance, your petitioners paid to the Phifer State Bank out of the assets of the estate of J.D. Watkins, deceased, the further sum of $500.00 on account of the balance of $2,500.00 cash that remained unpaid under the agreement for compromise, and said sum was received and accepted by the Phifer State Bank as further part performance of said agreement for compromise."
We have carefully considered each ground of the petition for a rehearing but error has not been made to appear. *Page 726
The petition for a rehearing is hereby denied.
WHITFIELD, P. J., and BROWN and CHAPMAN, J. J., concur.
BUFORD, J., concurs in opinion and judgment.
Justices TERRELL and THOMAS not participating as authorized by Section 4687, Compiled General Laws of 1927, and Rule 21-A of the Rules of this Court.
