Opinion · Florida Court Opinions

JONES v. NEIBERGALL, 53 So.2d 918 (Fla. 1951)

JONES v. NEIBERGALL, 53 So. 2d 918 (Fla. 1951)

Type
Opinion
Court
Florida Court Opinions
Jurisdiction
Florida
Date
1951-08-03
Topic
general

JONES v. NEIBERGALL, 53 So.2d 918 (Fla. 1951) JONES v. NEIBERGALL ET AL.Supreme Court of Florida,Division A. August 3, 1951.Rehearing Denied September 6, 1951. Appeal from the Circuit Court for Palm Beach County, C.E.

Citator

UpLaw has not yet analyzed JONES v. NEIBERGALL, 53 So.2d 918 (Fla. 1951). The absence of a flag is not a finding that it is good law.

JONES v. NEIBERGALL,53 So.2d 918(Fla. 1951)
JONES v. NEIBERGALL ET AL.
Supreme Court of Florida,
Division A.
August 3, 1951.
Rehearing Denied September 6, 1951.
Appeal from the Circuit Court for Palm Beach County, C.E. Chillingworth, J.
Hal S. Ives and Paty, Warwick Paul, West Palm Beach, for appellant.

Clyde Trammell and Russell H. McIntosh, West Palm Beach, for appellees.
TERRELL, Justice.
Other phases of this case were considered in Jones v. Neibergall, Fla.42 So.2d 443and Jones v. Neibergall, Fla.,47 So.2d 605. The latter appeal settled the law of the case. We affirmed the decree of the chancellor without prejudice to "application on the part of either party at the time the chancellor entertains the counter-claim, to recast the pleadings so as to raise and present the equities contended for, produce evidence to establish them, and secure a ruling by the chancellor on the issues so made."

The "equities contended for" grew out of the following facts: Willie Jones was the mother of three adult children, Pauline, Howard and Paul. Imbued with a desire to divide her property as near equally as practicable among them she called them into conference and outlined her plan of division which was agreed to. She executed her will accordingly and died soon thereafter. The will was probated and distribution of her estate made according to its terms. Each child took and appropriated the portion willed to it. About five years later Pauline claimed one-third of the portion willed to Paul on the theory that it was her mother's homestead and could not be disposed of by will. On first consideration the chancellor agreed with that contention, decreed accordingly and we affirmed his decree. On reconsideration we were for the first time confronted with the contention that this would produce a very inequitable result because Pauline would not only have the part willed to her butPage 919she would have one-third of the part willed to Paul and that since she had not offered to do equity by returning her part or any portion of it to the estate, Paul would have no recourse against her. The equity so contended for was not raised in the pleadings on first consideration, hence our affirmance without prejudice to reform the pleadings so as to raise the question and secure a ruling of the chancellor thereon.

The pleadings were reformed, evidence was taken in support of the equities raised and contended for, and the chancellor construed our opinion to require him to "Consider the equities as affected by the inequalities in value in the bequests and devises under the will received by the three children, and endeavor in some appropriate manner to avoid a gain by one to the loss of another, contrary to the wishes of the mother to treat equally all of the three children." It is true that there were slight discrepancies in the value of the portions willed to each child but these were waived.

This construction was contrary to the law of the case as set out in Jones v. Neibergall, Fla.,47 So.2d 605. The "equity contended for" was that arising from the fact that Pauline had accepted the provision of her mother's will, had taken her portion and now proposed to take a one-third interest in the part willed to her brother Paul, because it happened to be the homestead, without offering to do equity by restoring any part she took to the estate. In his amended answer Paul Jones brought the probate proceedings to the attention of the court and pointed this out in detail, he also pointed out the large amounts he had spent in taxes and betterments to the property which totaled $6,645.09.

In fine, the record shows that Pauline Neibergall was satisfied with and accepted the provisions of her mother's will, she approved the plan of distribution before it was made, she released the executors from any claim against her mother's estate, she secured $3,160.63 more in value from the estate than her brother Paul, she administered Paul's part of the estate for more than five years while he was away in the army and saw him spend $6,645.09 on it in taxes and betterments and made no claim against it whatever, she has disposed of all that part of the estate willed to her and now proposes to take one-third of Paul's part without making restitution. The law is well settled that she cannot enforce a different division from that which she agreed to and accepted without renouncing all rights inconsistent with the benefits she received. Griley v. Griley, Fla.,43 So.2d 350; Rudd v. Searles,262 Mass. 490,160 N.E. 882, 58 A.L.R. 1548.

We think the record supports the equities contended for and on authority of the cases last cited Pauline Neibergall is estopped to assert any claim to Paul's part of the estate. The decree appealed from is accordingly reversed with directions to the chancellor to enter his decree accordingly.

Reversed with directions.

SEBRING, C.J., and CHAPMAN, ADAMS and HOBSON, JJ., concur.

THOMAS, J., dissents.

ROBERTS, J., not participating.