Opinion
No. 64-879.
August 17, 1965.
Appeal from the Circuit Court, Dade County, Harvie S. Duval, J.
High, Stack Davis, Miami, for appellants.
Bolles, Goodwin Ryskamp, Miami, for Mabel E. King.
Dixon, DeJarnette, Bradford, Williams, McKay Kimbrell, and Joseph F. Jennings, Miami, for Fidelity.
Before HENDRY, C.J., and TILLMAN PEARSON and SWANN, JJ.
This is an appeal of an order of the circuit court dismissing plaintiffs' complaint.
Plaintiffs filed their amended complaint in equity against the defendant guardian and her surety seeking, inter alia, imposition of a resulting or constructive trust, an accounting, and injunctive relief. The complaint was bottomed on a wilful misappropriation and conversion of the incompetent's property. The acts complained of allegedly took place before and during the guardian's tenure.
It is our view that the amended complaint should not have been dismissed with prejudice. We recognize the principles announced by this court in McLean v. Little River Bank Trust Co., Fla.App. 1964, 169 So.2d 835, and in Security Trust Co. v. Cannon, Fla.App. 1965, 165 So.2d 834 and are of the opinion that the holding in this case is consistent with both of those decisions.
The Security Trust and McLean cases recognize that the circuit court jurisdiction may be invoked when it is made to appear that an adequate remedy in the probate court is not available. Proceedings by way of devastavit could not remedy all of the wrongs alleged in the amended complaint. Hence, plaintiffs should be allowed to amend their complaint to conform with rules announced in the Security Trust and McLean cases, supra. See also Bambrick v. Bambrick, Fla.App. 1964, 165 So.2d 449.
The order of dismissal with prejudice is reversed and the cause remanded for further proceedings consistent herewith.