Opinion
March 25, 1952.
Appeal from the Circuit Court for Hillsborough County, Henry C. Tillman, J.
Forrest O. Hobbs, Tampa, for appellants.
No appearance for appellees.
Sometime in 1948, George H. Beach executed a will devising and bequeathing all his property to his son-in-law and the son-in-law's second wife, upon condition that theirs should be a life estate and that upon the death of the survivor of them fee simple title should vest in the two children of the son-in-law and a deceased daughter, William Mason Beach, Jr. and Agnes Elizabeth Beach, or the surviving grandchild if one of them died before termination of the life estate. The life estate was "* * * dependant upon its holders giving to my two grandchildren a home * * *" and the income was to be devoted to their maintenance and education.
Later, 16 April 1950, George H. Beach executed this simple will: "I do hereby declare all wills and codicils heretofore made and signed by me to be cancelled, null and void and of no effect," and 3 July 1950 he died.
The following November the four beneficiaries and a guardian ad litem, who had meanwhile been appointed for the minor grandchild, filed a petition in the probate court setting out the original will and its revocation and representing that the only asset of the estate was a parcel of land occupied by the testator as a homestead; that there was indebtedness against the estate to pay which no funds were available. The petitioners stated that they had agreed it would be to the best interests of all parties concerned to have the revocation of 16 April 1950 disregarded and the original will of 1948 admitted to probate.
The county judge disapproved the agreement and denied the petition. Upon appeal, the circuit judge affirmed.
The county judge thought the agreement did not operate to the best interest of the heirs at law and that, further, the minor could repudiate it upon reaching her majority. He opined that even if the original will could be made effective, which he believed could not be done, an agreement to that end could not be valid unless all parties were sui juris.
By observing that the petition "from the standpoint of the best interest of all of the parties" is one "which appeals to the Court," the circuit judge seems to have inclined toward approving the arrangement on that score, but he held the view that the guardian ad litem could not bind his ward to its terms, and decided the matter on that point.
Upshot of the first ruling and the subsequent affirmative order was an adjudication that the petition was lacking merit because of the minority of one of the grandchildren.
Upon this factual background, appellant superimposed the question whether the heirs and beneficiaries could enter into the settlement "contrary to said last will and testament when one of said parties [was] a minor?"
Under the general law, Chapter 744, Florida Statutes 1949, and F.S.A., a guardian ad litem may be appointed in some circumstances to represent a minor in pending litigation. The statute more appropriate to this case is Sec. 732.54, Florida Statutes 1949, and F.S.A., providing that the county judge shall appoint a guardian ad litem, in the absence or disqualification of a legal guardian, to represent the ward in proceedings affecting the estate.
We think those cases dealing with compromises contrary to the provisions of a will are not in point as here there was no will. George H. Beach died intestate, and the effort to probate the will of 1948 was nothing more than a petition to distribute the property in the same manner as he had outlined in the will he revoked.
We think the prime question was decided properly by Judge Brooker when he wrote that it was not "* * * clearly apparent [to him] that it [was] for the best interests of the heirs at law for the will of 1948 to be given effect." As there was no will, the ruling amounted to a disapproval of the plan of distribution. He gave as his reason for the view the fact that under such an arrangement the lineal descendents would receive less than they would as heirs of the intestate. That was an excellent reason for rejecting the idea in protecting the minor.
In any event, the compromise or better still proposition, could not have been effectuated without the court's approval, a minor's share having been involved, and such sanction was not forthcoming.
Appellant's position that neither judge had authority to rule without taking testimony about the effect upon the minor's interest of approving or disapproving the settlement is not tenable for the simple reason that the matter could be readily determined from the face of the petition. In re Marxhausen's Estate, 247 Mich. 192, 225 N.W. 632.
So we affirm the order of the circuit judge affirming the judgment of the county judge because we think the latter was correct in not sanctioning the agreement, being unconvinced that the minor was receiving all to which she was entitled.
Affirmed.
SEBRING, C.J., and TERRELL and HOBSON, JJ., concur.