Judges: PER CURIAM.
Attorneys: Henry L. Williford, James E. Kirk, John F. Burket, for Relators;
George Couper Gibbs, Attorney General, John L. Graham, and Lawrence A. Truett, Assistant Attorneys General, for Respondents.
Filed: Dec. 03, 1940
Latest Update: Mar. 02, 2020
Summary: Upon consideration of the suggestion of above named relators for writ of prohibition: The application for writ of prohibition will be denied because we cannot say there is any ground for equitable relief stated in the bill of complaint. We do not intend to intimate that we hold that the circuit court has jurisdiction to appoint receiver to supersede and oust the executors appointed by the county judge as judge of probate or to oust the jurisdiction of the county judge to adjudicate questions exc
Summary: Upon consideration of the suggestion of above named relators for writ of prohibition: The application for writ of prohibition will be denied because we cannot say there is any ground for equitable relief stated in the bill of complaint. We do not intend to intimate that we hold that the circuit court has jurisdiction to appoint receiver to supersede and oust the executors appointed by the county judge as judge of probate or to oust the jurisdiction of the county judge to adjudicate questions excl..
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It is my view that a court of equity is without jurisdiction to appoint a receiver for the estate of a decedent where it is clearly shown by the testimony that the representative of the estate commits waste, mismanages the estate and is guilty of fraud in connection with the management of the decedent's estate. The jurisdiction of the settlement of estates of decedents is by Section 17 of Article V of the Constitution of Florida conferred on the county judge. See Tyre v. Wright,144 Fla. 90, 197 So. 846; Pournelle v. Baxter, 142 Fla. 517,195 So. 163; Crosby v. Burleson, 142 Fla. 443, 195 So. 202.
If waste, fraud and unlawful management of the estate of a decedent is committed by a representative of an estate, this fact, in my judgment, should be brought to the attention of the county judge by a petition seeking a revocation of the letters testamentary, and after the issues are settled, testimony should be taken thereon before the county judge and if the testimony is sufficient, an order revoking the issuance of letters testamentary should be made and entered and a substitute representative should be appointed; the right to appeal from said order to the circuit court is authorized as provided for by Section 11 of Article V of the Constitution
of Florida. See County Com. Hillsborough County v. Savage,63 Fla. 337, 58 So. 835. The case of Opitz v. Morgan, 68 Fla. 469, 67 So. 67, has not been overlooked.
Therefore, I concur specially in the majority opinion herein.
BUFORD, J., concurs.
