Opinion
August 1, 1950. As Amended on Denial of Rehearing October 31, 1950.
Appeal from the Circuit Court for Dade County, N. Vernon Hawthorne, J.
Anderson Nadeau, Miami, for appellant.
Herbert S. Sawyer and Evans, Mershon, Sawyer, Johnston Simmons, all of Miami, for appellee.
It is hereby ordered by the Court, sua sponte, that the Per Curiam opinion filed in this cause on August 1, 1950, be and the same is hereby amended to read as follows:
Russell A. Gair on July 7, 1948, filed a Petition for Revocation of the Probate of the Will of Mae Gair Ruch before the County Judge sitting as Judge of the Probate Court. On October 18, 1948, the said Gair filed a Petition for an Order directing the conveyance of homestead property and for payment of sums alleged to be due petitioner under the terms of the trust created by the will of Mae Gair Ruch. The County Judge denied both petitions and an appeal was taken to the Circuit Court of the Eleventh Judicial Circuit. The Circuit Judge affirmed the County Judge's Order dismissing the petition for revocation of the will and the petition for an order directing conveyance of homestead property and for payment of sums alleged to be due the petitioner. The present appeal is from the order of the Circuit Court affirming the ruling of the County Judge's Court.
The gravamen of the Petition for Revocation is fraud and conspiracy. Many of the allegations are founded upon information and belief and those allegations which are not predicated upon information and belief are too general and do not set forth clearly, positively and specifically facts (as distinguished from conclusions of the pleader) which evince fraud and conspiracy. Heathcote v. Fairbanks, Morse and Company, a corporation, 60 Fla. 97, 53 So. 950; Florida Life Insurance Company, a corporation v. Dillon, 63 Fla. 140, 58 So. 643; Huffstetler v. Our Home Life Insurance Company, 67 Fla. 324, 65 So. 1; Simmons v. Dover Drainage District, 93 Fla. 1035, 113 So. 383; West Virginia Hotel Corporation v. W.C. Foster Company et al., 101 Fla. 1147, 132 So. 842.
The petition for an order directing conveyance of homestead property and for payment of sums allegedly due petitioner was properly dismissed because "Russell A. Gair, joined by his wife Beatrice C. Gair, had, in consideration of the sum of $22,500.00 paid to them, released and relinquished all their right, title and interest of every nature whatsoever in the Estate of Mae Gair Ruch, or the assets thereof, whether real, personal or mixed and whether claimed through the said will or as heirs of the said Mae Gair Ruch, now deceased." The petitioner and his wife also executed a quitclaim deed in and by which they conveyed to Jessie G. Meriwether all the interest which they may have had in the property which Russell A. Gair contended constituted a homestead.
Since Russell A. Gair had, for a valuable consideration, released and relinquished all of his right, title and interest of every nature whatsoever in the Estate of Mae Gair Ruch he was not entitled to an order directing the conveyance of homestead property and for payment of sums which he claimed were due him under the terms of the trust created by the will of Mae Gair Ruch unless he had sufficiently alleged and had subsequently proved fraud and conspiracy in the procurement from him of the instruments in and by which he released and relinquished his right, title and interest in the Estate of Mae Gair Ruch.
It is true that Russell A. Gair attempted in the Probate Court to establish the fact that his release and relinquishment of any and all interest in the Estate of Mae Gair Ruch was executed by him because fraud and conspiracy had been practiced upon him and that in view of such fact his contract of release and relinquishment should be set aside. As we have previously stated, all of Russell A. Gair's allegations of fraud and conspiracy were too general and did not set forth clearly, positively and specifically facts which showed that fraud and conspiracy existed, or such allegations were mere conclusions of the pleader.
The order of affirmance of the Circuit Court of Dade County should be and it is hereby affirmed.
It is further ordered that the Petition for Rehearing be and it is hereby denied.
ADAMS, C.J., and CHAPMAN, HOBSON and SEBRING, JJ., concur.