Opinion
August 28, 1951.
Appeal from the Circuit Court for Duval County, Bayard B. Shields, J.
O.R.T. Bowden, Jacksonville, for appellant.
Bedell Bedell and Chester Bedell, Jacksonville, for appellee.
This appeal involves an order entered by the Circuit Court of Duval County reversing an order entered by the County Judges Court of Duval County in a probate proceeding.
The record shows that the appellant, D.D. Hendry, filed a petition in the County Judges Court of Duval County praying for the probate of a purported will of one Florence M. Purdy, deceased, dated March 28, 1947, and a codicil thereto dated December 18, 1948. Thereafter, the appellee, Dorothy R. Schmitter, filed an answer and amended answer in the proceeding in which she alleged that the execution of the will and codicil had been procured through fraud and undue influence, and prayed that the petition for the probate of the purported will and codicil be denied and that a purported will of the deceased, dated February 1, 1947, be admitted to probate and record.
A motion to dismiss the answer and amended answer was filed by Hendry, and, thereafter, in an order made on the motion, the County Judge ordered and decreed that the answer should be dismissed "unless the said Dorothy R. Schmitter, within thirty days from the date of this Order * * * [shall] file in this cause a written renunciation and disclaimer of any beneficial interest which she has or may have under the purported Will dated March 28, 1947, and the purported Codicil dated December 18, 1948, the said renunciation to be signed and executed by her in due form, renouncing and disclaiming in a manner to preclude her from receiving any beneficial interest under the Will and Codicil that she attempts to contest in the event the purported Will dated March 28, 1947, or the said Codicil shall hereafter be admitted to probate."
On appeal the order entered by the County Judge was reversed by the Circuit Court of Duval County; and Hendry has taken an appeal from the order of reversal.
The only question in the case is whether a person who desires to resist the probate of a purported will in which he has been named as a beneficiary must renounce and disclaim the interest provided for him therein as a condition to contesting its admission to probate.
Section 732.26, Florida Statutes 1949, F.S.A., provides, in part, that "The will of any person who heretofore has died a resident of the State of Florida or any person who hereafter dies a resident of the State of Florida must be admitted to probate in an original proceeding in the State of Florida in order to establish its validity. Until so admitted to probate, such will shall be ineffective to convey title to, or the right to possession of, real or personal property of the testator * * *."
In the instant case the purported will and codicil attacked by the appellee have never been probated but have merely been offered for probate. Because of the provisions of the above statute the appellee has no vested legal or equitable interest in the estate of the deceased by virtue of the will and codicil and cannot have until the instruments have been duly admitted to probate. She should not be required, therefore, to file in the probate proceeding a formal renunciation and disclaimer of interest in the estate of the deceased, as a condition precedent to questioning the validity of the will and codicil offered by Hendry; for having received no benefits from the purported will and codicil, the appellee has neither title to divest herself of nor benefits to return.
The facts of this case distinguish it from Pournelle v. Baxter, 151 Fla. 32, 9 So.2d 162, and Barnett National Bank of Jacksonville v. Murrey, Fla., 49 So.2d 535, 537.
In Pournelle v. Baxter the will of the testator had been duly admitted to probate more than four years prior to the time that proceedings to revoke the will were filed in the County Judge's office. Under the will theretofore admitted to probate the title to real property had become vested, prima facie, in the contestants as of the date of the death of the testator. The holding of the court was that inasmuch as title had become vested in the contestants by virtue of the probated will, it was necessary for the contestants to divest themselves of the title in the formal manner required by the statutes for passing title to real estate, in order to contest the will under which they had derived their interest.
In Barnett National Bank of Jacksonville v. Murrey, an equitable interest in trust property had become vested in one Murrey, who thereafter sought to contest the validity of the trust instrument under which he had derived his interest. The holding of the court was that inasmuch as the equitable interest which had become vested in Murrey by reason of the execution of the trust instrument was a species of property which might be alienated by Murrey, and which might become subject to claims of his creditors, there was an obligation resting upon him to do equity "by renouncing his interest by some method or means sufficient in law to operate as a divestiture" if he desired to contest the validity of the trust instrument under which he had derived the property.
In its opinion the court took great pains to point out that it is "one who receives and retains a gift under a deed, will or other instrument [who] is estopped to contest the validity of the instrument under which he derives his interest." The court also pointed out that the rule was subject to the qualification that a beneficiary who has received benefits under such an instrument will not be estopped to contest the validity of the instrument "if he returns the benefits promptly, if it appears that no prejudice has resulted to third persons whose interests are affected by the instrument by reason of the temporary receipt of the benefits, and if the elements of laches are not present in the transaction." The court pointed out, further, that by renouncing his right to the property as a condition precedent to contesting the instrument the beneficiary did not thereby forfeit all right or interest regardless of the outcome of the litigation; but that when he had returned the benefits in the same condition as when he had received them or had relinquished his rights therein in some manner recognized by law, had shown that the rights of claimants under the instrument had not been adversely and injuriously affected, and had shown that he had not been guilty of laches, he would be free to contest the validity of the instrument and, thereafter, take under it, if he found himself unable to prove that fraud, duress or some other vitiating influence was present in the execution of the instrument or that at the time of its execution the maker was legally incapable of executing the instrument.
The decree appealed from should be affirmed.
It is so ordered.
TERRELL, THOMAS and HOBSON, JJ., concur.