In re Day's Estate, 198 Or. 518, 257 P.2d 609 (1953). In re Burton's Estate, 45 So.2d 873, 875 (Fla. 1950). In re Westfall's Estate, 74 Ariz. 181, 245 P.2d 951 (1952).
As the proceeds of the Policy were not property to be administered as part of Budd's estate, the designation of Hatfield-Bingaman as the beneficiary under the Policy did not render her a beneficiary of Budd's estate. See In re Burton's Estate, 20 Pa. D. C. at 566; Estate of Stalnaker, 479 A.2d at 614; Estate of Myers, 544 A.2d at 508-09. Stated otherwise, because the proceeds of the Policy did not pass through the estate, the designation of Hatfield-Bingaman as the Policy beneficiary did not qualify her as a beneficiary of the estate.
Upon review, we are to accept all the allegations in the complaint as true. In re Burton's Estate, 45 So.2d 873 (Fla. 1950). In paragraph 9 of the complaint, Jerry Grace alleged that the maximum amount established by the Dade County School Board was "based on an arbitrary formula different from the actual cost of educating the exceptional student."
Cf. In Re Burton's Estate, 30 Del. Ch. 615, 59 A.2d 278; Wall v. Wall, 123 Pa. 545, 16 A. 598. No provision is found in either Delaware's Constitution or its statutes expressly conferring upon him the right to exercise judicial functions in settling accounts; as to them, he is purely an accounting officer. Bodziak v. Theisen, 4 Terry 487, 50 A.2d 409; Theisen v. Hoey, 29 Del. Ch. 365, 51 A.2d 61. Thus, in the Morrow case, supra, it was held that he had no authority to establish a general rule allowing in accounts "as a debt of the deceased only one-half of the balance of any mortgage owed on property held by the deceased and a surviving spouse as tenants by the entirety."
This court is known as the superior court, and by our Constitution it is expressly given jurisdiction of all cases of law, equity and probate, together with all special proceedings not otherwise provided for. But the Constitution which adopted this system did not thereby abolish the different remedies which previously existed under the common law, equity and the statutes of probate. It merely provided, as was said in Re Burton's Estate, 93 Cal. 459, 29 P. 36, 37: ". . . The superior court, while sitting in matters of probate, is the same as it is while sitting in cases in equity, in cases at law, or in special proceedings; and, when it has jurisdiction of the subject-matter of a case falling within either of these classes, it has power to hear and determine, in the mode provided by law, all questions of law and fact, the determination of which is ancillary to a proper judgment in such case.
The particular phase of the matter now presented has been troublesome in many jurisdictions. The matter arose in the state of California as early as 1892. ( In re Burton's Estate, 93 Cal. 459, 29 P. 36, 37.) There the court said: "The superior court, while sitting in matters of probate, is the same as it is while sitting in cases in equity, in cases at law, or in special proceedings; and, when it has jurisdiction of the subject-matter of a case falling within either of these classes, it has power to hear and determine, in the mode provided by law, all questions of law and fact, the determination of which is ancillary to a proper judgment in such case." The court then emphasized the fact that in such a proceeding the superior court was required to follow substantially the mode prescribed by the statute authorizing the proceeding, and called attention to the fact that, although no claim adverse to the estate itself could be entertained, the proceeding did contemplate and include the ownership of grantees of the heirs and all those who were claimants through them, and that the proceedings authorized expressly and necessarily the consideration of the question of title to the property of the
It is significant that the Colbert decision does not mention the case of Burns v. Smith; had this court there intended to announce a rule contrary to its former holding, on facts which it deemed analogous, such mention would have been made and the former decision distinguished or overruled; its reason for not so doing is apparent. In the case of Burns v. Smith the contention now under consideration was made, and the case of In re Burton's Estate, 93 Cal. 459, 29 P. 36, was cited as supporting defendant's position, just as here the case of In re Colbert's Estate is cited. In the matter of Burton's Estate parties sought, as in the matter of the Colbert Estate and in the case of Kirk v. Baker, to establish an interest in privity with the estate.
We conclude these circumstances, coupled with the provisions of the will, were more than sufficient to give rise to a rebuttable presumption of undue influence. See In re Burton's Est., 45 So. 2d 873, 875 (Fla. 1950) (quoting Gardiner v. Goertner, 110 Fla. 377, 149 So. 186, 190 (1932) ) ("Undue influence is not usually exercised openly in the presence of others, so that it may be directly proved, hence it may be proved by indirect evidence of facts and circumstances from which it may be inferred."); Steven G. Nilsson, Florida's New Statutory Presumption of Undue Influence: Does It Change the Law or Merely Clarify?, 77 Fla. B.J. 20, 24 (2003) ("Undue influence is rarely susceptible of direct proof because of secret or private dealings between the decedent and the alleged wrongdoer; the latter typically testifies that he did nothing wrong, and the decedent never testifies to the contrary."). Although Swiss presented an explanation as to her actions, the trial court found her testimony unpersuasive.
That alone should mean the appellant loses. See Applegate v. BarnettBank of Tallahassee, 377 So.2d 1150 (Fla. 1979); In re Burton's Estate, 45 So.2d 873 (Fla. 1950); Allen v. Town of Largo, 39 So.2d 549 (Fla. 1949). However, based on the partial trial transcript furnished to us, I would still affirm.
However, the record does not support this contention and we cannot consider it on appeal. In re Burton's Estate, 45 So.2d 873 (Fla. 1950); Hastings v. Hastings, 45 So.2d 115 (Fla. 1950); Allen v. Largo, 39 So.2d 549 (Fla. 1949). Sections 921.161(1) and (2) require that a defendant be credited with all time served in county jail including that time spent between sentencing and being placed in the custody of the Department of Corrections. Because Jackson was shortchanged by 93 days, we reverse and remand to the trial court with directions to correct Jackson's sentence.