Opinion
December 11, 1951.
James H. Bunch and Releford McGriff, Jacksonville, for petitioners.
W.C. Anderson and Martin J. Pearl, Jacksonville, for respondent.
Presented here ably briefed and orally argued by counsel for the respective parties is a petition for writ of certiorari, drafted under Supreme Court Rule No. 34, 30 F.S.A. in which it is contended that a certain interlocutory order in partition entered in the Circuit Court of Duval County, Florida, on August 2, 1951, for various reasons, is invalid and should be for good and sufficient legal reasons quashed, set aside and held for naught.
Pertinent here are the following portions of the challenged order:
"1. That this Court has jurisdiction of the subject-matter and of the parties to this cause.
"2. That one Peter McQueen was a common ancestor of the plaintiff and defendants herein; that said Peter McQueen died intestate seized and possessed of the fee simple title to the lands involved in this suit, leaving him surviving as coparceners in said lands, his daughter, Mary McQueen Forsythe, the plaintiff herein, and his two sons, John McQueen and Percy McQueen, Sr.; that the said John McQueen died thereafter in 1945, testate, and in his Last Will and Testament left as his devisees Percy McQueen, Sr., Fred McQueen, Percy McQueen, Jr., Catherine Williams, Elix Williams, and Otis Williams, defendants herein; that the estate of John McQueen, deceased, is now being administered in the County Judge's Court of Duval County, Florida and said County Judge has not yet determined or decided the proportionate share of said estate held by each of the devisees of said John McQueen, deceased.
"3. That on February 8, 1938, one M.H. Moyer acquired a tax deed from the State of Florida conveying to him the lands involved in this suit, and said deed was recorded in Deed Book 777, page 450, of the current public records of Duval County, Florida.
"4. That on August 3, 1942, said M.H. Moyer conveyed said lands by deed of conveyance to said John McQueen and Percy McQueen, Sr., which said deed is recorded in Deed Book 957, page 440, of said public records.
"5. That the equities in this cause are with the plaintiff and against the defendants because at the time of the conveyance by said M.H. Moyer to said John McQueen and Percy McQueen, Sr., as aforesaid, the plaintiff, Mary McQueen Forsythe, said John McQueen and said Percy McQueen, Sr., were coparceners of said lands and there existed between them mutual obligations and interests in respect thereof, and by reason of the premises said conveyance inured to the benefit of all said coparceners and merely operated to discharge the lien for taxes theretofore existing at the time of the purchase by said Moyer from the State of Florida.
"6. That the attorneys for plaintiff are entitled to a reasonable fee for their services rendered and to be rendered in this cause, the amount thereof to be determined in further proceedings herein; two-thirds of said fee to be charged to the undivided one-third interest of the plaintiff herein, and one-third of said fee to be charged to the undivided one-third interest of the defendant, Percy McQueen, Sr.; the undivided one-third interest of the Estate of John McQueen, deceased, shall be exempt from any contribution to any costs herein and the same shall in no wise contribute toward said reasonable attorney's fee to be allowed the plaintiff.
"It is, therefore upon consideration,
"Ordered, Adjudged and Decreed as follows:
"A. That the plaintiff, Mary McQueen Forsythe, owns and is entitled to an undivided one-third interest in the real property described in the Bill of Complaint herein, to-wit:
"Lots 3 and 4, Section 14, Township 2 South, Range 27 East, containing 116 acres more or less, situate in Duval County, Florida.
"However, the said plaintiff, Mary McQueen Forsythe, shall contribute to Percy McQueen, Sr., and the Estate of John McQueen, deceased, or whichever may be shown to be entitled thereto herein, one-third of the compensation paid to said M.H. Moyer as consideration for said deed of conveyance from him to said John McQueen and Percy McQueen, Sr., recorded in Deed Book 957, page 440, of the current public records of Duval County, Florida; said undivided one-third interest of said Mary McQueen Forsythe in the real property hereinabove described is hereby charged with said obligation of the contribution of said one-third portion of the consideration paid to said M.H. Moyer.
"B. That the defendant, Percy McQueen, Sr., owns and is entitled to an undivided one-third interest in said lands.
"C. That the successors in interest of John McQueen, deceased, own and are entitled to an undivided one-third interest in said lands; that said interest is now under administration in the County Judge's Court of Duval County, Florida, in the matter of the Estate of John McQueen, deceased, and this Court leaves for determination by said County Judge's Court the distribution of said undivided one-third interest.
"D. That Charles E. Flynn, Paul Speh and Ernest Jacobs, be, and they are, hereby appointed Commissioners to make such partition of said real estate in accordance with this decree, and after having made such partition, make report of the same in writing to this Court.
"It is further,
"Ordered and Decreed that the plaintiff's attorneys be, and they are hereby allowed upon proof thereof made herein, reasonable attorney's fees herein to be fixed by this Court, and that the defendant, Percy McQueen, Sr., be and he is hereby bound and liable to pay one-third thereof and one-third of the other costs and charges arising from this suit of partition; that the undivided one-third interest of the Estate of John McQueen, deceased, shall be exempt from any contribution to any costs or attorney's fees herein; that the said Mary McQueen Forsythe, plaintiff herein, be, and is bound and liable for two-thirds of said attorney's fees and two-thirds of the costs and charges arising from this suit for partition;"
It is contended by counsel for the petitioners that the lower Court was without jurisdiction to adjudicate the issues made by the pleadings in the cause because the County Judge's Court of Duval County, during the year 1945, assumed jurisdiction to administer upon the will of the late John McQueen, and was so doing when this partition suit was instituted. This estate owned a one-third undivided interest in the described land. Reversible error occurred, it is argued, when the Chancellor entered his order denying the amended motion to dismiss. The case of Tyre v. Wright, 144 Fla. 90, 197 So. 846, and several similar cases, are cited and relied upon as authority for their position. It is quite true that the 1933 Probate Act and Section 17 of Article 5 of the Florida Constitution F.S.A. conferred upon County Judges enumerated powers with reference to the settlement of estates. See In re Estate of Monks, 155 Fla. 240, 19 So.2d 796. Courts of equity have no jurisdiction to administer estates. Tyre v. Wright, supra, and similar cases. Courts of Equity have the jurisdiction to hear and determine suits in partition. See Chapter 66, F.S.A., and Section 11 of Article 5 of the Constitution of Florida.
It is next contended that the portion of the challenged order which held that the conveyance or deed from M.H. Moyer into John McQueen and Percy McQueen, Sr., dated August 3, 1942, which conveyed the described land inured to the use and benefit of Mary McQueen Forsythe and constituted as a matter of law the payment of taxes, which legal obligation rested alike on each of the cotenants was erroneous. Authorities are cited to sustain the view that the deed from Moyer into two of the cotenants constituted an independent chain of title to the described property and to the exclusion of Mary McQueen Forsythe, the third cotenant. This contention is without merit. See Spencer v. Spencer, 160 Fla. 749, 36 So.2d 424, and similar cases.
It is next contended that the following described portions of the partition decree are contrary to the provisions of Section 66.08, F.S.A.: Section 6 of the challenged partition order is viz.: "* * * two-thirds of said (reasonable) fee to be charged to the undivided one-third interest of the plaintiff herein, and one-third of said (reasonable) fee to be charged to the undivided one-third interest of the defendant, Percy McQueen, Sr.; the undivided one-third interest of the Estate of John McQueen, deceased, shall be exempt from any contribution to any of the costs herein and the same shall in no wise contribute toward said reasonable attorney's fee to be allowed the plaintiff." Also the decretal portions of the challenged order viz.: "* * * that the undivided one-third interest of the estate of John McQueen, deceased, shall be exempt from any contribution to any costs or attorney's fees herein; that the said Mary McQueen Forsythe, plaintiff herein, be, and is bound and liable for two-thirds of said attorney's fees and two-thirds of the costs and charges arising from this suit for partition."
It is our view that the petitioners' contention has merit and the Chancellor below in entering the partition order here challenged was without authority to assess the costs of the partition suit, contrary to or different from the several provisions of Section 66.08, F.S.A. It follows that the provisions of the partition order, supra, were erroneous and the writ of certiorari is granted and the described portions of the order are quashed, with directions to reform the partition order to conform to the views herein expressed. The petition is hereby granted in part and denied in part.
SEBRING, C.J., and TERRELL and ROBERTS, JJ., concur.