CHAPTER 706 WRECKED COTTON; LUMBER ADRIFT; BOATS AND VESSELS ADRIFT

Transcription

1 2535 WRECKED COTTON; LUM'BER ADRIFT; BOATS AND VESSELS ADRIFT CHAPTER 706 WRECKED COTTON; LUMBER ADRIFT; BOATS AND VESSELS ADRIFT ' Finder of wrecked cotton to advertise. ' Owner to pay expenses and salvage. ' Sale. ' Persons to adopt brand for lumber Damages for fraudulently using stamp Booms may be constructed Public custodian for certain ports. ' To what ports apply Custodian; duties as to vessels Custodian; duties as to lost timber Notice of finding lost timber. ' Stamp to be evidence Finder of wrecked cotton to advertise.-persons taking up cotton afloat in the rivers of this state shall place it in a secure place out of the weather and give early notice, by advertisement at the port to which said cotton was destined, of the finding of the same, giving the marks or brands on said cotton, together with the place of finding and the name of the finder. History.- 1, March 4, 1841; RS 2016; GS 2538; RGS 3893; CGL Owner to pay expenses and salvage. -The person finding said cotton shall deliver it to the owner, on his paying the expense of advertisement and the sum of five dollars for each bale so saved. Hlstory.- 2, March 4, 1841; RS 2017; GS 2539; RGS 3894; CGL Sale.-If no owner shall appear within three months after the time of such advertisement, the person finding shall expose the same at public auction to the highest bidder, and shall hold the proceeds, after the payment of proper costs and charges and the salvage aforesaid, for the benefit of the owner. History.- 3, March 4, 1841; RS 2018; GS 2540; RGS 3895; CGL Persons to adopt brand for lumber. -Any person floating lumber, logs or timber down the current of rivers, streams or watercourses in the state may adopt, to his exclusive use, a particular mark, brand or stamp, to be used and applied on all such lumber, logs or timber, to distinguish and designate his ownership thereof; but such person adopting any such mark, brand or stamp shall have it recorded in the office of the clerk of the circuit court, describing it particularly and its usual mode of application. History.- 2, ch. 607.!. 1863; RS 2019; 1, ch. 4174, 1893; QS 2641; RGS 3896; o..;gl Damages for fraudulently using stamp.-any person who shall after such record knowingly use said mark, brand or stamp shall be liable in double damages to the party aggrieved. Hlstory.-RS 2020; 3897; CGL , ch. 4174, 1893; GS 2642; RGS Booms may be constructed.-owners of timber or lumber floating down rivers or water-courses may make use of floating booms on such streams for the purpose of securing Fees Sale of lost timber Picking up lumber adrift Ports having no public custodian; lumber, etc., not to be stayed before reaching the sea Lumber taken up in sea, etc., to be advertised Sale and disposition of proceeds Selling rafted lumber adrift Proceedings like those for estrays. such timber or lumber from loss, but such booms shall not be used in such manner as to cause any unnecessary delay to boats and vessels engaged in the navigation of such streams, nor shall they remain stretched out upon or across such streams any longer than is absolutely necessary to secure the timber or lumber from loss. Hlstory.- 3, ch. 607, 1863; RS 2021; GS 2643 ; RGS 3898; CGL Public custodian for certain ports. The governor shall appoint, by and with the advice and consent of the senate, for each port in the state into which have or shall come during any calendar year not fewer than fifty vessels of five hundred tons burden each, a public custodian of lost timber and lumber, who shall give a bond in the sum of one thousand dollars to the governor for the faithful discharge of his duties, and shall hold his office for four years, unless sooner removed by the governor for good cause. History.- 1, ch. 6171, 1903; GS 2544; RGS 3899; CGJ To what ports apply. -sections shall apply to all ports, and none other, into which have come during the past five years vessels of five hundred tons burden and upwards, at the average of not less than two hundred and fifty vessels per year, according to the records of the United States custom house at or nearest the port for which such appointment shall be made: History.- 2, ch. 4803, 1899; GS 2552; RGS 3905; CGL Custodian; duties as to vessels.-the said public custodian shall keep in his office a register book, wherein he shall immediately upon the arrival of any vessel record the name, date of arrival, master, nationality, and the tonnage thereof, and the cargo stamp to be furnished as hereinafter provided. The said public custodian of timber and lumber shall furnish to the master of each vessel loading cargo from the water a suitable stamp, with which the master of the said veseel shall cause to be stamped' all timber and lumber immediately upon its receipt alongside to be loaded as above set forth. Hlstory.- 2, ch. 3899, 1889; RS 2023'; 3900; CGL GS 2646; RGS

2 WRECKED COTTON; LUMBER ADRIFT; BOATS AND VESSELS ADRIFT Custodian; duties as to lost timber. The said public custodian, either by himself or his agent, shall keep at all times a careful watch over the waters of his port, and shall recover and place in a boom to be kept by him for the purpose, convenient to the shipping, all timber and lumber that shall be found adrift in said waters, and safely keep the same until disposed of in the manner hereinafter provided; but nothing in this section contained shall authorize the public custodian, or his agent, or any other person, to take possession of any lumber or timber afloat upon the waters of such port, or its tributaries, when the owner thereof, or his bailee or agent, shall be in possession, view or immediate pursuit thereof. Hlstory.- 3, ch. 3899, 1889; RS 2024; 2, ch. 5171, 1903; GS 2546; RGS 3901; CGL Notice of finding lost timber.-the said public custodian of timber and lumber immediately upon the recovery of any timber or lumber shall give public notice for five days in some newspaper published at said port giving the description, quantity and stamp of such timber or lumber,.and stating that unless said timber or lumber be called for and identified by the owner within five days, the same will be sold as provided in , and that if the proceeds of such sale be not called for by the person lawfully entitled to the same within ninety days after such sale, the same will be forfeited and paid into the county treasury for the use of county schools; and the owners of any such timber or lumber shall be entitled to have the same delivered when at said boom upon paying to the said custodian the fees hereinafter provided. Hlstory.- 4, ch. 3899, 1889; RS 2025; 3, ch. 5171, 1903; GS 2547; RGS 3902; CGL Stamp to be evidence.-the stamp furnished and used under the provisions of when appearing upon timber or lumber adrift shall be, in the courts of the state, prima facie evidence of ownership. Hlstory.- 5, ch. 3899, 1889; RS 2026 ; GS 2548; RGS 3903; CGL Fees.-The said public custodian of lost timber and lumber shall be entitled to demand and receive from the master of each vessel using the stamp provided for in this chapter the sum of two dollars for the use of the same while engaged in loading, and for each stick of sawn timber recovered and delivered the sum of seventy-five cents and for each stick of hewn timber recovered and delivered the sum of one dollar and fifty cents, and for lumber recovered and delivered the sum of three dollars per thousand superficial feet measurement, two dollars and fifty cents for each chain and five cents for each iron dog recovered and delivered, and five dollars for each ship's boat or yawl recovered and delivered and the said custodian shall have a first lfen upon timber, lumber, chains, iron dogs and boats or yawls so recovered by him for all his fees and dues for same until the same be fully paid, and he shall not be required to deliver any timber, lumber, chains, iron dogs, boats or yawls until such payment is made. Hlstory.- 6, ch. 4044, 1891; 1, ch. 4803, 1899; GS 2549; RGS 3904; CGL 5811; am. 7, ch , Sale of lost timber.-after any lost timber or lumber has been advertised as above required for the period of five days, and no owner or claimant has appeared, the custodian shall sell the same at public sale, after publie notice as aforesaid, advertised for five days, for the benefit of whom it may concern, ±or which service he shall receive from the proceeds of such sale five per cent on the gross amount of such sale; the net proceeds of such sales to be held and paid by him to such person as shall be lawfully entitled to the same. Hlstory.- 7, ch. 3899, 1889; 3, ch. 4044, 1891; RS 2028; GS 2551; RGS 3906; CGL Picking up lumber adrift.-no person other than the custodian of lost timber, or his agents, in ports where such custodian has been appointed, shall pick up, recover, or in any manner interfere with any timber or lumber found adrift in the waters of such port, which has been stamped as required by law or which has not been stamped. Any person violating the provisions of this section shall be punished by fine of not less than five dollars and not more than fifty dollars or imprisonment for not more than thirty days. Hlstory.-RS 2503; 8, ch. 3899, 1889; 4, ch. 5171, 1903; GS 3386; RGS 5234; CGL Ports having no public custodian; lumber, etc., not to be stayed before reaching the sea.-in ports having no public custodian, no person other than the owner or his agents shall arrest, stay or take possession of any sawed lumber in rafts, hewed timber, round saw~mill logs or spars adrift before the same shall have reached the mouths or outlets of the rivers and streams and have parsed out into the open sea or bays where the said rivers or streams empty their waters. Hlstory.- 1, ch. 507, 1853;, RS 2030; GS 2652; RGS 3907; CGL Lumber taken up in sea, etc., to be advertised.-whenever any person shall find any rafts of the timber or lumber mentioned in in the said open sea or bays, he shall secure it in the place where found, or in the nearest place of safety, and 8hall proceed to advertise it at the door of the courthouse of the county wherein it was found, stating the kind and probable quantity of lumber, the place where found and where deposited. Hlstory.- 1, Feb. 10, 1834; RS 2031; GS 2553; RGS 3908; CGL Sale and disposition of proceeds. If after the expiration of sixty days from the date of the advertisement no person shall claim and establish his right of property to said timber or lumber to the satisfaction of the justice of the peace of the district (to

3 2537 WRECKED COTTON; LUMBER ADRIFT; BOATS AND VESSELS ADRIFT prove which right the person claiming to be the owner of said timber or lumber shall not be required to produce testimony upon oath to the identity thereof, but such circumstantial proof as the nature of the case admits) then the finder may take it to the nearest market and deliver it to, some justice of the pel!ce, who shall forthwith sell the same to the best advantage, pay to the finder all necessary and reasonable expenses, reserve to himself five per cent as compensation for his services, and place the balance in the hands of the clerk of the circuit court, whose receipt he shall take. But if before the expiration of the sixty days the owner shall appear and establish his right to said lumber such owner shall pay all expenses and reasonable charges for securing the same, to be determined, in ease of difference between the parties, by an arbitrator appointed by each; but if after the expiration of another term Of sixty days no right shall have yet been established to said lumber, then the balance.of said money remaining in the hands of the clerk shall be paid over, one-half to the finder.and the other half to the county treasury, to be applied in common with other funds to county purposes. Hlstory.- 2, Feb. 10, 1834; RS 2032; GS 2554; RGS :3909; CGL' Selling.rafted lumber adrift.-whoever finding any timber or lumber adrift, outside of ports for which a public custodian for lost timber and lumber is appointed, sells it without complying with the law relative to lumber adrift, or disposes of it, in the place or places where found, as his timber or lumber, or appropriates it to his own use, shall be deemed guilty of larceny, grand or petit, as the case may be, and shall be punished accordingly. History.- 3, Feb. 10, 1834; RS 2446; GS 3294; RGS 5128 ; CGL cf , Larceny Proceedings like those for estrays. -If any person shall take up any boat or other vessel adrift, he shall as in the case of estrays, make application to some justice of the peace of the district where such boat or vessel was taken up for his warrant to have the same valued and described by her kind, burthen and build, and shall proceed in all other respects and shall have the same benefits as directed in the case of estrays. History.- 8, Nov. 21, 1828; RS 2033; GS 2665; RGS 3910; CGL 6817.

4 ESTRAYS 2538 ' Definitions. Maliciously taking up animals as estrays. Failure to comply with regulations. Who may talm.. up estrays. Proceedings for estrays broken to service. Proceedings for other animals., Justice to record certificate. Clerk to record certificate and to advertise estray Sale and disposition of proceeds in case of horses. etc Sale and disposition of proceeds 1n case of cattle, etc Claim by owner of estray Taker-up not responsible for death of estray Definitions. - Cattle of all kinds, hogs, sheep and goats wandering about the neighborhood for six months, and stud-horses, geldings, mares, fillies, colts, asses and mules for three months, shall be considered estrays. History.- 9, Nov. 21, 1828; RS 2034; GS 2556; RGS 8911; CGL 5818., Maliciously taking up animals as estrays.-if any person shall vexatiously or maliciously take up any animal as an estray contrary to law, he shall be liable to an action for damages to the party injured. Hlstory.- 7, Nov. 21, 1828; RS 2035; GS 2557; RGS 8912; CGL Failure to comply with regulations. -Any person taking up any estray and failing or neglecting to comply with the regulations of this chapter relative to such estray, and being thereof duly convicted before a court of competent jurisdiction, shall for every such offense (except when otherwise provided) forfeit and pay a sum equal to double the value of the estray, which appraisement and and advertised as aforesaid, to be recovered by suit or action at law by any person who may prosecute for the same to the use of the county school fund. Hlstory.- 13, Nov. 12, 1833; RS 2036; GS 2558; RGS 8913; CGL Who may take up estrays.-any person may take up all estrays that may be found straying away from their owners. Hlstory RS 1892; GS 2559; RGS 8914; CGL Proceedings for estrays broken to service.-if the estray has been broken to service, the person taking it up shall within five days take or drive it before the justice of the peace of the district, who shall take down in writing a full description of the estray, including a particular description of its marks, natural and artificial brands, stature, age and color, and shall immediately cause it to be appraised by two or more discreet persons of the vicinage, under his warrant, they being first sworn well and truly to ascprtain the value of such estray so neglected to be tolled description, together with the name of the taker-up and his place of residence, the jus- CHAPTER 707 ESTRAYS Estray may be put into service Compensation to taker-up Fees Clerks to render statement of proceeds of sales Penalty for malfeasance of justice or clerk Owners of strayed animals may enter pasture of another to seek for same Owner of strayed animals to notify owner of pasture of intention to enter Duty of owner of pasture to facilitate entry Refusing entrance to pasture to seek strayed domestic animals Stud horse or ass running at large may be gelded by permission of justice of peace Proceedings, when not gelded. tice shall within five days transmit to the clerk of the circuit court, having special care that the taker-up do solemnly swear that he has not altered, or caused to be altered, the marks or brands of such estray, and that to the best of his knowledge and belief such marks or brands have, or have not (as the case may be), in any case been altered, r..nd that the owner is to him unknown. Hlstory.- 1, Feb. 12, 1833; 1, Feb. 11, 1837; RS 2038; GS 2560; RGS 3915; CGL Proceedings for other animals.-ln case any person shall take up any estrayed -teat cattle, sheep, goats or hogs, he sha1 cause the same to be viewed by a householder in the county, and the taker-up shall be compelled to advertise said estray at least five days at the place of holdi'ng justice's courts, as in the district prior to tolling, and shall immediately thereafter go with such householder before the justice of th. peace and make oath before him that the same was taken by him, and that the marks or brands of such estray have (or have not) to the best of his knowledge and belief been altered, and the said justice shall take from the taker-up and householder, upon oath, a particular and exact description of the marks and brands, color and age of all and every such neat cattle, sheep, goats or hogs, and such justice shall, in manner as above directed, issue his warrant for the appraisement of such estrays, which description and valuation shall by said justice within five days be transmitted to the clerk of the circuit court, by him to be disposed of as hereinafter directed. Hlstory.- 2, Feb. 12, 1833; RS 2039; GS 2561; RGS 3916; CGL Justice to record certificate.- The justice shall enter a true copy of the certificate by him transmitted to the clerk of the circuit court in a book to be by him kept for that purpose. Hlstory.- 3, Feb. 12, 1833 ; RS 2040; 3917; CGL GS 2562; RGS Clerk to record certificate and to advertise estray.- The clerk of the circuit court in each county shall receive and enter

5 ESTRAYS in a book by him to be provided and kept for that purpose all such certificates of description or appraisement as to him shall be transmitted from the respective justices, and he shall also advertise the estray, with description, and the name of the taker-up, as returned to him by the justice of the peace, at the courthouse door of the county and in a newspaper published in the county once a week for four weeks. History.- 4, Feb. 12, 1833; 2, Feb. 11, 1837; RS 2041; GS 2563; RGS 3918; CGL Sale and disposition of proceeds in case of horses, etc.-the taker-up shall bring to the courthouse, or place of holding court in the county in which he resides, every such strayed horse, mare, colt, filly, ass or mule, on the first sheriff's sale day that shail happen after the expiration of the said advertisement, and the clerk of the circuit court of the c6unty, on said sheriff's sale day, upon giving ten days' notice at such places as is usual for advertising the sheriff's sales of said county, shall cause the estray to be sold at public outcry to the highest bidder for cash, and pay over the proceeds of such sale to the clerk, after defraying the charges and fees directed for county school fund purpcses. Ev~ ery taker-up who shall neglect or refuse to comply with the requirements of this section shall be liable for double the amount of the appraisement to be recovered before a court of competent jurisdiction, which shall be applied to the use of the county school fund, after deducting the legal fees.. Hlstory.- 5, Feb. 12, 1833; 2, Feb. 11, 1837; RS 2042; GS 2564 ; RGS 3919; CGL Sale and disposition of proceeds in case of cattle, etc.-in case any per son shall take up as aforesaid any neat cattle, sheep, goats or hogs, and no person shall appear and make satisfactory proof that the said estray is his property, the justice of the peace before whom the estray has been tolled, having given five days' notice by advertisement in two of the most public places in the justice's district wherein he resides, shall proceed to sell the said estray, at such place and by such person as he may consider most to the interest of the county upon one of his regular court days, between the usual hours for ready money, to the highest bidder: and the justices or the peace shall pay to the county treasury of their respective counties, within twenty days.after receipt, all moneys in their hands that have arisen from the sale of estrays as aforesaid, deducting five per cent for commission and such other charges as are allowed by law. Hlstory.- 6, Feb. 12, 1833; 3, Feb. 11, 1837; RS 2043; GS 2565; RGS 3920; CGL Claim by owner of estray.-if any person shall, within six months from the time of such sale, prove to the satisfaction of the board of county commiss-ioners of the county th:~t the estray so sold was his own property. or that of his employer (as the case may be), the board of county commissioners shall, after deducting the fees and charges hereinafter allowed, direct the money arising from such sale to be paid to the claimant of said estray. If no person shall so make proof, the bogrd of county commissioners shall cause the moneys arising from such sale, after deducting the said fees and charges, to be paid to the county school fund. Hlstory.- 7, Feb. 12, 1833; 2, Feb. 11, 1837; RS 2044; GS 2566; RGS 3921; CGL Taker-up not responsible for death of estray.-if after notice published as aforesaid any estray shall happen to die, or by any casualty get out of the possession of the person who took up the same without his default, such taker-up shall not be answerable for same or the valuation thereof. th~ Hlstory.- 10, Nov. 21, 1826; RS 2045; GS 2567; RGS 3922; CGL Estray ~ay be put into service.-the taker-up of such estrays shall, as a compensation for maintaining and keeping the same, put them to immediate service (if capable of service), and if incapable, or if he should prefer it, receive from the owner, if the estray be claimed, or from the board of county commissioners, if it be sold, a reasonable satisfaction, to be adjudged by the clerk of the circuit court and a justice of the peace of the county according to the circumstances of the case. In case of putting such estray to labor, he shall be bound to produce the same to the owner, if claimed, or the clerk of the circuit court, if sold (casualties excepted), in as good condition as when appraised. Hlstory.- 9, Nov. 12, 1833; RS 2046; GS 2568; RGS 3923; CGL Compensation to taker-up.- Upon the delivery of any such estray to the legal owner, or in case of sale, upon the sale thereof, the taker-up shall receive from the owner or the clerk of the circuit court, as the case may be, the sum of one dollar for each horse, mare, colt, filly, ass, mule or ox, in addition to the sum by him paid to the justice of the peace, and the sum of twelve and a half (!ents for each head of neat cattle, sheep, goats or hogs, in addition to the sum above mentioned for the keeping and maintaining of the same. H istory.- 10, Nov. 12, 1833; RS 2047; GS 2569 RGS 3924 ; CGL ' Fees.-The justice of the peace, for his services, shall receive from the taker-up, at the time such estray shall be brought before him, or description or valuation presented to him as above, the sum of twenty-five cents for each horse, mare, colt, filly, ass or mule, and the sum of six and one-quarter cents for each head of neat cattle, sheep, goats or hogs. The clerk of the circuit court shall receive, for the receiving, entering and publishing every certificate as above directed, the sum of six cents, to be paid by the owner claiming the property, or deducted from the moneys arising from the sale of such property, and the further sum

6 ESTRAYS 2540 of five per cent upon the balance of such money as a compensation for selling or collecting and paying. Hlstory.- 8, 11, Nov. 12, 1833; RS 2048; GS 2570; RGS ~925; CGL Clerks to render statement of proceeds of sales.-the clerk of the circuit court in each county shall render to the chairman of the board of county commissioners annually a true statement of all moneys arising from the sale of estrays as af.oresaid, accompanied with the proper vouchers, and exhibit a correct statement as aforesaid to the grand jury at every fall term thereof, if required. Hlstory.- 12, Nov. 12, 1833; RS 2049; GS 2571; RGS 3926; CGL Penalty for malfeasance of justice or clerk.-if any justice of the peace or clerk of the circuit court shall refuse or neglect to perform the duties required by this chapter, chapter 705, or chapter 706, such justice or clerk so neglecting or refusing shall for every such neglect or refusal forfeit the sum of ten dollars to the use of the county school fund of the county where such offense shall be committed, to be recovered by action of debt in any court having jurisdiction of the same, and shall moreover be liable to an action of damages to the party injured. History.-U4, Nov. 12, 1833 ; RS 2050; GS 2572; RGS 3927; CGL Owners of strayed animals may enter pasture of another to seek for same.-it shall be lawful for the owner or owners of any cattle or other domestic ar.lmals or the agent or agents of said owners to enter the pasture of another for the sole purpose of seeking and recovering any cattle or other domestic animals that may have strayed or broken into, or which may have been driven into, such inclosure, inadvertently or otherwise and to drive from such inclosure :my cattle or other domestic animals belonging to such owners or under the control of such agent or agents so entering. Hlstory.- 1, ch. 5417, 1905; RGS 3928; CGL Owner of strayed animals to notify owner of pasture of intention to enter.-the owners of any cattle or other domestic animals or their agent or agents, desiring to enter any pasture of another for the purpose as set forth in , shall notify the owner or owners or their agent or agents of the time and place they desire to enter such pasture for the purposes set forth in said section. Such notice may be given verbally or in writing. History.- 2, ch. 5417, 1905; RGS 3929; CGL Duty of owner of pasture to facilitate entry.-the owner or owners, their agent or agents shall facilitate the entering into any pasture owned by them or controlled by their agent or agents when request is made by any party or parties entitled to the benefits of , the request to be made according to Hi~tory.- 3, ch. 5417, 1905; RGS 3930; CGL Refusing entrance to pasture to seek strayed domestic animals.-any person or owner of any pasture, who refuses to allow entrance or who hinders any owner or owners of cattle or other domestic animals, or their agent or agents, who have complied with , either by their own acts or the acts of their agent or agents, shall be deemed guilty of a misdemeanor, and when convicted of the s n.me by a competent court having jurisdiction thereof, shall be fined in a sum not to exceed two hundred dollars for each and every such offense, or by imprisonment in the county jail at hard labor not to exceed one month. Provided, that this section shall not apply to any county having no-fence districts. History.- 1, 4, ch. 5417, 1905; RGS 5238; CGL cf , Alternative punishment Stud horse or ass running at large may be gelded by permission of justice of peace.-it shall not be lawful for any studhorse or ass to run at large, and if any such shall be found running at large, any person may take up the same, and having taken him before the justice of the peace of the district, may geld the same stud-horse or ass, with the permission of the justice, taking care that the operation be performed by a person usually doing such business, for which the person so gelding shall receive five dollars, to be paid by the owner of the horse or ass, to be recovered from him by summary proceedings before a justice of the peace. But if any person shall take up and geld such stud-horse or ass contrary to and , or without fully pursuing the directions of this section, he shall for every such offense forfeit to the party injured double the value of such horse or ass, to be recovered in a court of competent. jurisdiction. History.- 11, Nov. 21, 1828; RS 2051, 2052; GS 2573; RGS 3931; CGL Proceedings, when not gelded.-any person who shall take up any stud-horse or ass, and may not choose to geld him, may take him before the justice of the peace of the district, and shall cause the said horse or ass with his brands and marks, if he has any, and if not, with a description of him, to be advertised is not less than three of the most public places of the county, and the person taking up said horse or ass shall recover from the owner thereof, before the proper justice of the peace, the sum of five dollars and all reasonable expenses of keeping such horse or ass. If such stud-horse or ass shall not be claimed by any person within ten days the person taking up the stud-horse or ass shall proceed as in other cases of estrays, but in no case shall he forfeit or lose the sum of five dollars and all reasonable expenses allowed him by this chapter. History.-U2. Nov ; RGS 3932; CGL

7 2541 MARRIED WOMEN'S PROPERTY CHAPTER 708 MARRIED WOMEN'S PROPERTY Rights reserved under the Spanish laws Right to wages and earnings Right to separate property Specific performance against married Custody and management of such property. woman Sales and conveyances Married women's rights; separate property Husband not liable for antenuptial debts Same; agreements with husband, power of of wife. attorney, etc Same; construction of law Rights reserved under the Spanish laws.-whereas some doubts have been entertained as to the effect and operation of the introduction of the common law of England upon the separate rights of husband and wife under the laws of the provinces of East and West Florida upon marriages solemnized before the change of government; to obviate any donbts in future, be it enacted, that all the rights and privileges of husband and wife established or derived by marriage under the civil laws of Spain while this state was under the jurisdiction of that government, shall be held, possessed and exercised by the husband and wife respectively in this state, and each shall be permitted to sell, succeed to, dispose of and convey by sale, devise or will their goods, chattels, lands and tenements in the same manner as they could or might have done under the laws of Spain, observing only the formalities of conveyance required by any other laws established, or which may hereafter be established, in this state. Hiotory.- 1, Dec. 23, 1824; RS 2069; 3946 ; CGL GS 2587; RGS Right to separate property.- All property real and personal, of a wife, owned by her before marriage or lawfully acquired afterward by gift, devise, bequest, descent, or purchase, shall be her separate property, and the same shall not be liable for the debts of her husband without her consent given by some instrument in writing executed according to the law respecting conveyances by married women. Hiotory.- 1, 2, March 6, 1945; RS 2070; GS 2588; RGS 3947; CGL 5866 cf.- 2, Art. XI, Const Custody and management of such property.-the property of the wife shall remain in care and management of the husband but he shall not charge for his care and management, nor shall the wife be entitled to sue her husband for the rent, hire, issues, proceeds or profits of her said property. History.- 1, 3, March 6, 1845; RS 2071; GS 2589; RGS 3948; CGL through 62.46, Removal of disabilities of married women Sales and conveyances.-the husband and wife shall join in all sales, transfers and conveyances of the property of the wife, other than personal property and chases in action. llistory.- 4. March 6, 1845; RS 2072; GS 2590; RGS 3949; 1, ch ,, 1927; CGL Husband not liable for antenuptial debts of wife.-the husband shall not be liable to pay the debts of the wife contracted before marriage, but the property of the wife shall be subject to such debts. Hiotory.- 5, M'arch 6, 1845; RS 2073; GS 2591; RGS 3950 ; CGL Right to wages and earnings.- A married woman's wages and earnings acquired by her in any employment separate from her husband shall be her separate property and subject to her own disposal, and she shall be entitled to sue for and recover the same as though she were a single woman. Hlotory RS 1892: GS 2593; RGS 3952; CGL Specific performance against married woman.-coverture shall not prevent a decree against husband and wife or either of them to specifically perform their written agreement to sell or convey the separate property of the wife or to relinquish her right of dower in the property of the husband, regardless of whether the same shall be acknowledged or not. Hlstory RS 1892; GS 2594; RGS 3953; CGL 5872 ; am. 1, ch , Married women's rights; separate property.-every married woman is hereby empowered to take charge of, and manage and control her separate property, to contract and to be contracted with, to sue and be sued, and to sell, convey, transfer, mortgage, use and pledge her property, real and personal, and to make, execute and deliver instruments and documents of every character; without restraint, without the joinder or consent of her husband, in all respects as fully as if she were unmarried. Every married woman, without the joinder or consent of her husband, shall have and may exercise all rights and powers with respect to her separate property, income and earnings, and may enter into, obligate herself to perform, and enforce contracts or undertakings to the same extent and in like manner as if she were unmarried; provided, however, that no deed, mortgage or other instrument conveying or encumbering real property owned by a married woman shall be valid without the joinder of her husband; provided, further, that any claim or judgment against any married woman shall not be a claim or lien against such married woman's inchoate right of dower in her husband's separate property. Hiotory.- 1, ch , cf , Right to sue individually. cf through 62.46, Removal ot disabilities of married women et seq., Conveyances ot real property , Conveyance between husband and wife , Requiring Joinder of husband. ~ Married women's acknowledgments.

8 MARRIED WOMEN'S PROPERTY Same; agreements with husband, power of attorney, etc.-every married woman may enter into agreements and contracts with her husband, may become the partner of her husband or others, may give a power of attorney to her husband, and may execute powers conferred upon her by her husband, including the power to Xecute and acknowledge deeds to property owned by her or by herself and her husband as tenants by the entirety or by her husband. All powers <>f attorney heretofore executed by a wife to her husband and vice versa, and the execution of all documents executed thereunder, are hereby validated and confirmed. History.-H, en , and 2, ch , Same; construction of law.-this law shall not be construed as (1) relieving a husband from any duty of supporting and maintaining his wife and children; (2) abolishing estates by the entireties or any of the incidents thereof; (3) abolishing dower or any of the incidents thereof; ( 4) changing the rights of either husband or wife to participate in the distribution of the estate of the other upon his death, as may now or hereafter be provided by law; (5) dispensing with the joinder of husband and wife in conveying or mortgaging homestead property. Hlstory.- 3, ch , 1943.,..,

9 2543 POWERS OF ATTORNEY AND SIMILAR INSTRUMENTS CHAPTER 709 POWERS OF ATTORNEY AND SIMILAR INSTRUMENTS ' Power of attorney; authority of nominee when principal dead. '109 ~02 Power of appointment; method of release. ' Same; property held in trust Power of attorney; authority of nominee when principal dead.-if any agent, cons tituted by power of attorney or other authority,.shall do any act for his principal which would be lawful if such principal were living, the same.shall be valid and binding on the estate of said principal, although he or she may have died before such act was done; provided, the party treating with such agent dealt bona fide, not knowing at the time of the doing of such act that such principal was dead. An affidavit, executed by the attorney in fact or agent setting forth that he has not or had not, at the time of doing any act pursuant to the power of attorney, received actual knowledge or actual notice of the death of the principal, or notice of any facts indicating his death, shall in the absence of fraud be conclusive proof of the absence of knowledge or notice by the agent of the death of the principal at such time. If the exercise of the power requires the execution and delivery of any instrument which is recordable under the laws of this state, such affidavit shall likewise be recordable. No report or listing, either official or otherwise, of "missing" or "missing in action" regarding any person in connection with any activity pertaining to or connected with the prosecution of any war in which the United States is then engaged, as such words " missing" or "missing in action" are used in military parlance, shall constitute or be interpreted as constituting actual knowledge or actual notice of the death of such principal, or notice of any facts indicating the death of such person, or.shall operate to revoke the agency. Hlstory.- 1, ch , Power of appointment; method of release.-powers of appointment over any property, real, personal, intangible or mixed, may be released, in whole or in part, by a written instrument signed by the donee or donees of such powers. Such written releases shall be signed in the presence of two witnesses but need not be sealed, acknowledged or recorded in order to be valid, nor shall it be necessary to the validity of such releases for husbands of married donees to join such donees in the execution of releases, in whole or part, of powers of appointment. Hlatory.- 1, ch , Same: effect of revocation Same; prior powers validated Same; powers included in law Same; effect on title to property Same; property held in trust.-if property subject to a power of appointment is held in trust by a person, firm or corporation other than the donee or donees of the power, a written release, in whole or in part, of a power to appoint the same shall be delivered to such trustee or trustees before the written release becomes legally effective. In no other instance shall a delivery of a release, in whole or in part, of a power of appointment be necessary to the validity of such release. Hletory.- 2, ch , Same; effect of revocation.-any power of appointment wholly released by a written instrument signed by the donee or donees of such power shall be, in legal effect, completely revoked, and shall. not, after such release, be subject to being exercised in any manner whatsoever. Any power of appointment partially released by a written instrument signed by the donee or donees of such power shall be, in legal effect, as to such released part, completely revoked, and shall not after such release be subject to being exercised in any manner whatsoever as to such released part. Hlstory.- 3, ch , Same; prior powers validated.-all releases, in whole or in part, of powers of appointment heretofore executed in a manner that conforms with the provisions of this law be and they are hereby validated and shall be given the same force and effect as if executed subsequently to the effective date of this law Hlstory.- 4, ch , Same; powers included in law. Powers of appointment referred to in this law shall include not only those recognized as such by general law but also those designated as such under the tax law of the United States. History.- 5, ch , Same; effect on title to property.-no such release, in whole or in part, of a power of appointment shall affect the title to property of any bona fide purchaser for value who does not have notice or knowledge of such release. Hlstory.- 7, ch , 1945.

10 PROPERTY GENERALLY Title to personal property found in public places Title to personal property found in public places.-the title to all personal prop~rty found in or upon public conveyances, premises at the time used for business purposes, parks, places of amusement, public recreation areas and other places open to the public is hereby vested in the finder unless the same be called for or claimed by the rightful owner thereof within six months after the finding thereof. Employees of public transportation systems shall be deemed agents of such transportation systems and personal property found on public conveyances, in depots, and garages of said transportation system shall be turned in to the proper person or department designated to receive such property by the said transportation systems, and such property shall be securely kept for the period of time as required by this section after which time if unclaimed by the rightful owner the title of such property shall CHAPTER 715 PROPERTY GENERALLY Prohibiting recovery from seller of forfeited deposit or down payment made by check, draft, or obligation refused through nofault of seller. be vested in the transportation system and not in the employee. Jlistory.- 1, ch , Prohibiting recovery from seller of forfeited deposit or down payment made by check, draft or obligation refused through no fault of seller.-in any action by any person against the seller of real property for any share of a forfeited deposit or down payment by a prospective purchaser, no check, draft or other obligation of such prospective purchaser shall be construed to be a deposit and the action shall not be maintained by any person against the seller by reason thereof, if payment of said check, draft or obligation is refused through no fault of the seller, notwithstanding any recitation of a receipt of said deposit in any written agreement. History.- 1, ch , Am. 11, ch , 1949.

11 2545 ESCHEATS, FORFEITURE, ETC Declaration of policy Escheat of funds in the possession of federal agencies Comptroller may recover federal funds Jurisdiction Declaration of policy.-lt is hereby declared to be the policy of the State of Florida, while protecting the interests of the owners thereof, to possess all unclaimed and abandoned money and property for the benefit of all the people of the State of Florida, and this law shall be liberally construed to accomplish such purpose. History.-!, ch , CHAPTER 716 ESCHEATS, FORFEITURE, ETC Escheat of funds in the possession of federal agencies.-all property within the provisions of subsections (1), (2), (3), (4) and (5) of this section, are declared to have escheated, or to escheat, including all principal and interest accruing thereon, and to have become the property of the State of Florida. (1) All money or other property which has remained in, or has been deposited in the custody of, or under the control of, any court of the United States of America, in and for any district within this state, or which has been deposited with and is in the custody of any depository, registry, clerk or other officer of such court or the United States treasury, which money o~ other property the rightful owner or owners th~reof, either: (a) Has been unknown for a period of five or more consecutive years; or, (b) Has died, without having disposed thereof, and without having left heirs next of kin or distributees, or ' (c) Has made no demand for such money or other property for five years; are declared to have escheated, or to escheat, together with all interest accrued thereon, and to have become the property of the State of Florida. (2) After June 16, 1947, all money or other property which has remained in, or has been deposited in the custody of, cr under the control of, any court of the United States, in and for any district within this state, for a period of four years, the rightful owner or owners of which, either: (a) Shall have been unknown for a period of four years; or, (b) Shall have died without having disposed thereof, and without having left or without leaving heirs, next of kin or distributees; or (c) Shall have failed within four years t~ demand the payment or delivery of such funds or other property; is hereby declared to have escheated, or to escheat, together with all interest accrued thereon, and to have become the property of the State of Florida. (3) All money or other property which ha~ remained in, or has been deposited in the custody of, or under the control of any officer, department or agency of the United States for five or more consecutive years, which money or other Money recovered to be paid into the state treasury Public records Recovery of escheated property by claimant. property had its situs or source in this state, except as hereinafter provided in subsection ( 4) of this section, the sender of which is unknown, or who sent the money or other property for an unknown purpose, or money which is credited as "unknown", and which said governn;ental agency is unable to credit to any particular account, or the sender of which has been unknown for a period of five or more consecutive years; or when known, has died without having disposed thereof, and without leaving heirs, next of kin or distributees, or for any reason is unclaimed from such governmental agency. (4) In the event any money is due to any resident of this state as a refund, rebate or tax rebate from the United States commissioner of internal revenue, the United States treasurer, or other governmental agency or department which said resident will, or is likely to have hi~ rights to apply for and secure such refund or rebate barred by any statute of limitations or in any eyent, ~as failed for a period of one yea; after said resident could have filed a claim for ~aid. refund or reb~te, the comptroller of Flor Ida IS hereby appomted agent of such resident to demand, file and apply for said refund or rebat~, and is hereby appointed to do any act which a natural person could do to recover said money, and it is hereby declared that when the comptroller files said application or any other proceeding to secure said refund or rebate his agency is coupled with an interest in the m~ney sought and mone~ recovered. (5) It is the purpose of this chapter to includ~ all funds or other property in the possession of the government of the United States of America, and of its departments officers and agencies, which property has its' situs in' this state or belonged to a resident thereof and not to li!llit the applica.tion of this chapt~r by the nammg of any particular agency. This chapter shall include all funds held in the veterans administration, comptroller of currency, United States treasury, department of internal revenue federal courts, registry of federal courts and ~uch evidences of indebtedness as adjusted 'serv Ice bonds, old matured debts issued prior to 1917, unclaimed!lnd interest thereon, postal savmgs bonds, liberty bonds, victory notes, ~reasury bonds, treasury notes, certificates of mde?tedness, treasury bills, treasurer's savings certificates, bonuses and adjusted compensation, allotments, and all unclaimed refunds or rebates of whatever kind or nature, which are subjects o~ escheat, under the terms of this chapter. Pro VIded, however, that nothing in this chapter shall be construed to mean that any funds now held or controlled by the United States postal savings deposits or any refunds due ratepayers

12 ESCHEATS, FORFEITURE, ETC. under order of any court of the United States of America shall become property of the state. Provided, however, that nothing in this chapter shall be construed to mean that any refunds due ratepayers under order of any court of the United States of America shall become the property of the state. History.- 2, ch , Am. 11, ch , Comptroller may recover federal funds.-when there exists, or may exist, escheated funds or property under this chapter, the comptroller shall demand and/or institute proceedings in the name of the State of Florida for an adjudication that an escheat to the State of Florida of such funds or property has occurred; and shall take appropriate action to recover such funds or property. Hlstory.- 3, ch , Am. 11, ch , Jurisdiction.-Whenever the comptroller is of the opinion an escheat has occurred, or shall occur, of any money or other property deposited in the custody of, or under the control of, any court of the United States, in and for any district within the State of Florida, or in the custody of any depository, registry or clerk or other officer of such court, or the treasury of the United States, he shall cause to be filed a complaint in the circuit court of Leon county, Florida, or in any other court of competent jurisdiction, to ascertain if any, escheat has occurred, and to cause said court to enter a judgment or decree of escheat in favor of the State of Florida, with costs, disbursements and attorney fee. History.- 4, ch , Money recovered to be paid into the state treasury.-when any funds or property which have been escheated within the meaning of this chapter, shall have been recovered by the comptroller, he shall first pay all costs incident to the collection and recovery of such funds and property, and shall promptly deposit the remaining balance of said funds or property with the treasurer of the State of Florida, to be distributed in accordance with law. History.- 5, ch , Public records.-all records in the office of the state treasurer or comptroller relating to federal funds, pursuant to this chapter, shall be public records. Hlstory.- 6, ch , Recovery of escheated property by claimant.-any person who claims any property, funds or money delivered to the state treasurer under this chapter, shall, within five years from the date of receipt of said property, funds or money, file a verified claim with the state treasurer, setting forth the facts upon which said party claims to be entitled to recover said money or property. The state treasurer, within 2546 five days after receipt of such claim, shall submit said verified claim or a verified copy thereof, to the comptroller. All claims made for recovery of property, funds or money, not filed within five years from the date that said property, funds or money is received by the state treasurer, shall be forever barred, and the treasurer of the State of Florida shall be without power to consider or determine any claims so made by any claimant after five years from the date that the property, funds or money was received by the state treasurer. The comptroller. shall, within thirty days after he has received said claim from the state treasurer, approve or disapprove the same. If the claim is approved, the funds, money or property of the claimant, less any expenses and costs which shall have been incurred by the state in securing the possession of said property, as provided by this chapter, shall be delivered to him by the state treasurer upon warrant issued according to law and his receipt taken therefor. If the comptroller shall disapprove the claim so filed, upon the ground that it does not show or state facts legally sufficient to entitle said claimant to recover said property, funds or money, then the claimant may file a verified petition or complaint in the circuit court of Leon county, Florida, naming therein the treasurer and the comptroller of the State of Florida as defendants in said action, setting forth in said petition or complaint all the facts supporting his claim to said property, funds or money. A hearing on said petition or complaint shall be held by the court not less than thirty nor more than sixty days from the date of the filing of said petition or complaint, and a copy of said petition or complaint, and notice of the date of hearing, must be served upon the comptroller and the state treasurer within ten days from the date of filing thereof; the comptroller and the state treasurer may plead to or answer said petition or complaint, as in other chancery actions. Any party interested and aggrieved by the decision of said court may appeal from such decision or judgment to the supreme court of Florida, as provided by law for appeals in chancery cases. After hearing of the issues upon the merits of the case, if.the court finds that the petitioner or plaintiff is entitled to the property, money or funds claimed, and shall render judgment in his or its favor, declaring that the petitioner or plaintiff is entitled to said property, funds or money, then upon presentation of said judgment or a certified copy thereof to the state comptroller, said comptroller shall draw his warrant for the amount of money stated in said judgment, without interest or cost to the state, less any sum paid by the state as costs or expenses in securing possession of said property, funds or money. When payment has been made to any claimant, no action thereafter shall be maintained by any other claimant against tlie state or any officer thereof, for or on account of said money, property or funds. Hlotory.- 7, ch , 1947.

13 TITLE XL STATUTE OF FRAUDS, FRAUDULENT CONVEYANCES AND GENERAL ASSIGNMENTS Promise to pay another's debt, etc Contracts to sell personalty Promise to pay another's debt, etc. No action shall be brought whereby to charge any executor or administrator upon any special promise to answer or pay any debt or damages out of his own estate, or whereby to charge the defendant upon any special promise to answer for the debt, default or miscarriage of another person or to charge any person upon any agreement made upon consideration of marriage, or upon any contract for the sale of lands, tenements or hereditaments, or of any uncertain interest in or concerning them, or for any lease thereof for a period longer than one year, or upon any agreement that is not to be performed within the space of one year from the making thereof, unless the agreement or promise upon which such action shall be brought, or some note or memorandum thereof shall be in writing and signed by the party to be charged therewith or by some other person by him thereunto lawfully authorized. Hlstory.- 10, Nov. 15, 1828; RS 1995; GS 2517; RGS 8872; CGL CHAPTER 725 UNENFORCEABLE CONTRACTS Newspaper subscription Contracts to sell personalty.- No contract for the sale of any personal property, goods, wares or merchandise s hall be good, unless the buyer shall accept the goods (or part of them) so sold and actually receive the same, or give something in earnest to hind the bargain or in part payment, or som > note or memorandum in writing of the said bargain or contract be made and signed by the parties to be charged by such contract, or their agents thereunto lawfully authorized. Hlstory.- 11, Nov. 15,' 1828; RS 1996; GS 2518; RGS 3873; CGL Newspaper subscription.-no person shall be liable to pay for any newspaper, periodical or other like matter, unless he shall subscribe for or order the same in writing. Hlstory.- 1, ch. 379, 1851; RS 1997; GS 2519; RGS 3874; CGL

14 FRAUDULENT CONVEYANCES, SALES, AND LOANS 2548 CHAPTER 726 FRAUDULENT CONVEYANCES, SALES, AND LOANS Fraudulent conveyances void Punishment for making false statements to Vendee of stock of goods in bulk to de- vendee of stock of goods in bulk. mand from vendor statement of creditors, Fraudulent conveyance void against subetc. sequent purchasers Notice to creditors by vendee Conveyances with power of revocation void: Sale without notice to creditors presumed against subsequent purchasers. lraudulent Fraudulent loans void What sales deemed fraudulent; proviso Watches, used; sales regulated Fraudulent conveyances void.-every to each of such creditors; and it shall he feoffment, gift, grant, alienation, bargain, sale, th2 duty of such vendor to furnish such stateconveyance, transfer and assignment of lands, ment, whether he be a wholesale or a retail tenements, hereditaments, and of goods and merchant. chattels, or any of them, or any lease, rent, Hlstory.- 1, ch. 5679, 1907; RGS 3865; CGL use, common or other profit, benefit or charge whatever out of lands, tenements, heredita Notice to creditors by vendee.- ments or goods and chattels, or any of them, Thereupon it shall be the duty of the purby writing or otherwise, and every bond, note, chaser, at least five days before the comcontract, suit, judgment and execution which pletion of said purchase, or the payment thershall at any time hereafter be had, made or for, to notify personally or by registered mail,. executed, contrived or devised of fraud, covin, each of said creditors of the said proposed collusion or guile, to the end, purpose or in- sale, the price to be paid therefor, and the tent to delay, hinder or defraud cr<)ditors or terms and conditions thereof. others of their just and lawful actions, suits, History.- 2, ch. 5679, 1907; RGS 3866; CGL debts, accounts, damages, demands, penalties Sale without notice to creditors preor forfeitures, shall be from henceforth as sumed fraudulent. -When any person shal1 against the person or persons, or bodies poli- purchase any stock of goods, wares or mertic or corporate, his, her or their successors, chandise in bulk, and shall pay the price or executors, administrators and assigns, and any part thereof, or execute or deliver to the every one of them so intended to be delayed, hin- vendor thereof, or to his order, or to any dered or defrauded, deemed, held, adjudged and person for his use, any promissory note, or taken to be utterly void, frustrate and of none other evidence of indebtedness, for said pureffect, any pretense, color, feigned considera- chase price, or any part thereof, without havtion, expressing of use or any other matter ing first demanded and received from saidi or thing to the contrary notwithstanding; pro- vendor the statement under oath mentioned: viued, that this section, or anything therein in , and without first giving to each cor;,tained, shall not extend to any estate or of the creditors whose names have been furinterest in lands, tenements, hereditaments, nished by said vendor the notice provided for leases, rents, uses, commons, profits, goods in , such sale or transfer shall, as to or chattels which shall be had, made, conveyed any and all creditors of the vendor, be preor assured if such estate shall be, upon good sumed to be fraudulent. consideration and bona fide, lawfully conveyed Hlstory.- 3, ch. 5679, 1907; RGS 3867; CGL or assured to any person or persons, or body politic or corporate, not having at the time of such conveyance or assurance to them made any manner of notice or knowledge of such covin, fraud or collusion as aforesaid, anything in this section to the contrary notwithstanding. Hlstory.- 1, Jan. 28, 1823; RS 1991; GS 2513; RGS 3864; CGL 5771; am. 7, ch , Vendee of stock of goods in bulk to demand from vendor statement of creditors, etc.-it shall be the duty of every person who shall bargain for or purchase any stock of goods, wares or merchandise in bulk for cash or credit, before paying or delivering to the vendor any part of the purchase price therefor. to demand and receive from the vendor thereof, and if the vendor be a corporation, then from the managing officer or agent thereof, a written statement under oath of the names and addresses of all the creditors of said vendor, together with the amount of indebtedness due or owing by the sa~d venaor What sales deemed fraudulent; proviso.-any sale or transfer of a stock of goods, wares or merchandise out of the usual or ordinary course of business or trade of the vendor, or whereby substantially the entire business or trade theretofore conductedi by the vendor shall be sold or conveyed, or attempted to be sold or conveyed, to one or more persons, shall be deemed a fraudulent transaction or transfer in bulk in con~emplation of ; provided, that nothing contained in said sections shall apply to sales byexecutors, administrators, receivers or any public officer under judicial process. History.- 5, ch. 5679, 1907; RGS 3868; CGL Punishment for making false statements to vendee o{ stock of goods in bulk. Any vendor of a stock of goods,. wares or merchandise in bulk who shall knowingly or willfully make or deliver, or cause to be mad& or delivered, any false statement or any statement of which any material portion is false,.

15 2549 FRAUDULENT CONVEYANCES, SALES, AND LOANS or shall fail to include the names of all his creditors in any such statement, as is reouired in , shall be guilty of a misdemeanor, ana upon conviction thereof shall be punished by a fine of not more than five hundred dollars or oy imprisonment for not more than inx montns. Hlstory.- 4, ch. 5679, 1907; RGS 5200; CGL Fraudulent conveyance void against -subsequent purchasers.- Every feoffment,.deed, conveyance, mortgage, grant, charge, lease, transfer, assignment, estate, encumbrance, interest, and limitation of use or uses.qf, in or out of any lands, tenements or other hereditaments whatsoever, which shall at any time hereafter be had, made, executed or contrived for the intent and purpose of defrauding and deceiving such person or persons, -bodies politic or corporate, as shall afterward :purchase the same lands, tenements and hereditaments, or any part thereof, or any estate,.interest, rent, property, right or commodity, in, to or out of the same, or any part thereof,.so formerly conveyed, granted, leased, charged, transferred, assigned, encumbered or limited in u&e,. shall. b~ _.deemed,... adjudged,. taken and held as against the person or persons, bodies politic or corporate, their heirs, successors, -executors, administrators and assigns, and.against all and every person and persons lawfully having or claiming by, from, through or under them, or any of them who shall have so purchased for money or other good consideration the same lands, tenements or heredita ments, or any part thereof, or any estate, right, interest, profit, benefit or commodity, in, to -or out of the same, to be utterly void, frustrate and of none effect, any pretense, feign ~d consideration or expressing of use or uses to the contrary notwithstanding; provided, that nothing in this section contained shall extend -or be construed to impeach, make void or frustrate any conveyance, assignment or lease, as -surance, grant, charge, lease, estate, interest or limitation, or use or uses of, in, to or out of.any lands, tenements or hereditaments, which shdl be made upon and for good consideration.an~ ~ona fide, to any person or persons, bodies politic or corporate, anything in this section to the contrary notwithstanding. Hlstory.- 2, Jan. 28, 1823; RS 19g2 GS 2514 :3869; CGL ' ' RGS Conveyances with power of revocation void against subsequent purchasers. -If any person or persons shall make any con -veyance, gift, grant, demise, charge, -limitation of use or uses, or assurance of, in or out l)f any lands, tenements or-hereditaments, witb any clause, provision, article or condition of revocation, determination or alteration at his, her or their will or pleasure, of such con -veyance, gift, assurance, grant, demhle, charge, limitation of use or uses contained in the.same, or in any other writing whatever of, in or out of the said lands, tenements or.heredibments, or any part and parcel of them,.and after such conveyance, grant, gift, demise, charge, limitation of uses or assurance so made or had, shall or do bargain, sell, demise, grant, convey, transfer or charge the same lands, tenements or hereditaments, or any part or parcel thereof, or any estate, right or interest in the same to any other person or persons, bodies politic or corporate, for mnney or other good consideration (the said first conveyance, assurance, gift, grant, demise, charge or limitation not being revoked, made void or altered according to the power and authority reserved or expressed in and by the said first conveyance or other writing), then the said former conveyance, assurance, grant, demise, charge or limitations, as touching the said lands, tenements and hereditaments and estate, right or interest in the same so afterward bargained, sold, granted, conveyed, demised, transferred or charged, as against the said bargainees, vendees, grantees, lessees and every of them, their heirs, successors, executors, administrators and assigns, and as against all and every person and persons who shall or may lawfully claim by, thrcugh, from or under them, or any of them, shall be deemed, taken and adjudged to be void and of none effect. Hist~ry.- 8, Jan. - 28, 1823; RS 1993;. GS 2515; ; RGS '; ' CGL 5777:. ' ' Fraudulent loans void.-when any loan of goods and chattels shall be pretended to have been made to any person with whom or those claiming under him, possession shall have remained for the space of two years without demand and pursued by due process of law on the part of the pretended lender, or where any reservation or limitation shall be pretended to have been made of a use or property by way of condition, reversion, remainder or otherwise in goods and chattels, and the possession thereof shall have remained in another as aforesaid, the same shall be taken, as to the creditors and purchasers of the per <~ons aforesaid so remaining in possession, tc be fraudulent within this chapter, and the absolute property shall be with the possession, unless such loan, reservation or limitation of use or property were declared b:y will or deed in writing proved and recorded. Hlstory.- 4, Jan. 28, 1823; 1, ch. 872, 1859; RS 1994; GS 2516; RGS 3871; CGL Watches, used; sales regulated. (!) The purpose of this law is to identify all watches other than new, with a label or designation of "used" in order to safeguard the public from being misled in purchasing used, rebuilt or reconditioned watches as new. (2) Any person, firm, partnership, association or corporation engaged in the business of buying or selling watches, or any agent or servant thereof, who shall sell or exchange, or offer for sale or exchange, expose for sale or exr.hange, possess with the intent to sell or exchange, or display with the intent to sell or exchange any used watch, shall affix and keep affixed to the same a tag with the word "used" clearly and legibly written or printed thereon, and the said

16 FRAUDULENT CONVEYANCES, SALES, AND LOANS 2550 tag shall be so placed that the word "used" shall be in plain sight at all times. (3) Any person, firm, partnership, association or corporation engaged in the business of buying or selling watches, or any agent or servant thereof, who shall sell a used watch or in any other way pass title thereto shall deliver to the vendee a written invoice bearing the words "used watch" in bold letters larger than any of the other written matter upon said invoice. Said invoice shall further set forth the name and address of the vendor, the name and address of the vendee, the date of the sale, the name of the watch or its maker, and the serial numbers (if any), and any other distinguishing numbers or identification marks upon its case and movement. If the serial numbers or other disting-uishing numbers or identification marks shall have been erased, defaced, removed, altered or covered, said invoice shall so state. The vendor shall keep on file a duplicate of said invoice for at least two years from the date of the sale thereof, which shall be open to inspection during all business hours by the sheriff or any prosecuting officer of the county in which the vendor is engaged in business. ( 4) Any person, firm, partnership, association or corporation, or any agent or servant thereof, who may advertise or display in any manner a used watch for sale or exchange shall state clearly in such advertisement or display that said watch is a used watch. ( 5) A watch shall be deemed to be used if: (a) It as a whole or the case thereof or the movement thereof has been previously sold to or acquired by any person who bought or acquired the same for his use or the use of another, but not for resale; provided, however, that a watch which has been so sold or acquired and is thereafter returned either through an exchange or for credit to the original individual, firm, partnership, association or corporation who sold or passed title to such watch within ten days after the sale or acquisition thereof, shall not be deemed to be a used watch for the purpose of this section, if such vendor shall keep a written or printed record setting forth the name of the purchaser thereof, the date of the sale or transfer thereof and the serial number (if any) on the case and the movement, and any other distinguishing numbers or identification. marks, which said record shall be kept for at least two years. from the date of such sale or transfer and shah be open for inspection during all business hours by the sheriff or any prosecuting officer of the county in which such vendor is engaged in business; or, (b) Its case serial numbers or movement numbers or other distinguishing numbers or identification marks shall be erased, defaced, removed, altered or covered; or, (c) Its movement is more than five years old and has been repaired by any person or persons, including the vendor.. Cleaning and oiling a watch movement or recasing the movement in a new case shall not be deemed a watch repair for the purpose of this section. (6) Any person, firm, partnership, association or corporation, or any agent or servant thereof, who shall violate any of the provisions of this section shall be guilty of a misdemeanor, and upon conviction thereof shall be punished by a fine of not more than five hundred dollars, or by imprisonment in the county jail for not more than six months, or by both such fine and imprisonment, in the discretion of the court. Hlstory.- 1-6, ch

17 2551 GENERAL ASSIGNMENTS To be in writing and to contain no preferences Oath of assignor Record of assignment and oath Qualifications of assignee To be in writing and to contain no preferences.-no assignment made for the benefit of creditors shall be valid in this state, except the same shall be made in writing and shall provide for an equal distribution of all the assignor's real and personal property, except such as is exempted by law from forced sale, among the several creditors of the said assignor in equal proportion to their respective demands. Hlotory.- l., ch. 3891, 1889; RS 2307; GS 2926; RGS 4666; CGL Oath of assignor.-the said assignor sh&ll make and subscribe an oath in writing before any officer authorized to administer oaths in the county in which he lives and does business, or of the county or counties wherein is situated the property assigned, not more than ten days after the assignment, that he has placed or assigned, and that the true intention of his assignment was to place in the hands of his assignee all of his property of every description, except such as is exempt by law from forced sale, to be divided among the creditors in proportion to their respective demands. Hlotory.- 2. ch. 3891, 1889; RS 2308 ; GS 2927; RGS 4667; CGL Record of assignment and oath. Both the said deed of assignment and oath of assignor shall be recorded in the office or offices of the clerk or clerks of the county or counties in which the property assigned is situated. Hlotory.- 3, ch. 3891, 1889; RS 2309; GS %928; RGS 4668; CGL Qualifications of assignee.-no one shall be selected and appointed as assignee by the assignor, in such assignment, who does not give bond to be approved by the clerk of the circuit court of the county wherein the assignor lives or does business, or of the county wherein is situated the property assigned, payable to the governor of Florida, in double the value of the property assigned, conditioned for the faithful discharge of the duties devolved on him as such assignee, said bond to be filed in the office aforesaid, immediately upon the assignee's taking possession of the assigned property. Hlstory.- 4, ch. 3891, 1889; RS 2310; GS 2929; RGS 4669; CGL Notice of assignment.-8aid assignee in.mediately upon taking possession of the as- CHAPTER 727 GENERAL ASSIGNMENTS Notice of assignment Disposition of property Semiannual statements Application for discharge of assignee. signed property shall give notice by publication in a newspaper, published in the county where the assigned property is situated or wherein a portion of the same is, once a week for four consecutive weeks, to all the creditors of the assignor, of the fact of the assignment, and calling upon said creditors to file with him within sixty days, if such creditors reside in the state, or if beyond the limits of the state, within four months, sworn statements of their claims against said assignor, and he shall send by mail a copy of the newspaper containing said notice to each of the said creditors, as far as he may know them. Hlotory.- 6, ch. 3891, 1889; RS 2311; GS 2930 ; RGS 4670 ; CGL Disposition of property.-the said assignee shall, as soon as the foregoing provisions have been complied with, proceed to dispose of all the property mentioned in the deed of assignment to him, to the best interest of all the parties concerned, either at public or private sale, as to him may seem best, and to collect and to recover by law, or otherwise, all debts due the assignor in the same manner as said assignor might or could do in his own right if such assignment had not been made, and for this purpose said assignee may employ an attorney to prosecute such claims. Hlotory.- 7, ch. 3891, 1889; RS 2312; GS 2931 ; RGS 4671 ; CGL Semiannual statements.-8emiann u ally, as long as shall be necessary after his appointment, said assignee shall file his sworn statement in the office of the clerk of the circuit court, of all his doings and financial transactions as said assignee. Hlstory.- 8, ch. 3891, 1889 ; RS 2313; 4672; CGL GS 2932; RGS Application for discharge of assignee.-after the final statement of the assignee of all the matters pertaining to his position, he may, after publication for thirty days in a newspaper in the county where he published his notice mentioned in , apply by petition to the judge of the circuit court of said circuit for his letters of discharge as said assignee, and if the said circuit judge shall be satisfied that the said assignee has complied with his duties as such assignee, he sha.ll then grant him such letters as prayed for. Hlstory.- 9, ch. 3891, 1889; RS 2314; GS 2933; RGS 4673 ; CGL 6759.

18 TITLE XLI ESTATES OF DECEDENTS CHAPTER 731 FLORIDA PROBATE LAW, FIRST PART Short title Application Definitions Who may make a will Property which may be devised Requisites of nuncupative wills Execution of wills Effect of fraud, duress, mistake or undue influence Revocation by fraud Marriage after execution of will. ' Children born after execution of will. 73)..12. Implied. revocation-vby. subsequent.. incon -.,, sistent.will..... ' Revocation by written instrument Other revocation. ' Revival by revocation Revocation of codicil. '131.1'1 Republication of wills by codicil Short title.-this chapter, together with the three chapters next following, shall be known and may be cited as the Florida probate law. Hlstory.- 1, ch , 1933; CGL 1936 Supp. 5457(1) am. 1, ch , Application.-This Florida probate law shall apply to and. govern the estates of all decedents, whether dying prior to or after its enactment; provided, however, that estates of deeedents dying prior to October 1, 1933, which are now in the process of administration may be completed and closed in accordance with the statutes and laws under which they have heretofore been.administered. Hlstory.- 2, ch , 1933; CGL 1936 Supp. 5457(2); am. 1, ch , Definitions.-In these statutes, when.applied to wills and the probate thereof, descent and distribution of decedents' estates, dower, administration of decedents' estates, and practice.and procedure relating thereto, where the context permits, the word, phrase or term: (1) "Administration" refers to the adminis :tration of estates and to all probate proceedings; (2) "Bequeath" means to dispose of personal property by will, but it may be used interchangeably with the word "devise"; (3) "Bequest" means a gift of personal prop -erty received by the beneficiary in a will, but it may refer to real estate also; ( 4) "Curator" means a person appointed by the county judge to take charge of the estate of a 73U.8 Republication of wills by re-execution Charitable devises and bequests Lapsed or void legacies or devises Vesting of legacies or devises Income from legacies or devises Order of succession Half blood Inheritance per stirpes Presumption of order of death Descent of homesteads Alien Illegitimate child as heir. c73~ 1.3Q.. A!iop.ted ~ child.., _. 73L31' Murderer Inheritance from persons of color Escheat Dower in realty and personalty Election to take dower Articles in addition to dower. deceased person until letters testamentary or of administration are granted; (5) "Devise" when used as a verb, means to dispose of real estate by will, but it may be used interchangeably with the word "bequeath"; ( 6) "Devise" when used as a noun, means a gift of real estate by will, but it may be used interchangeably.with the word "bequest"; (7) "Gift" means either devise or bequest, or both; (8) "Heir" and "heir at law" have the same meaning as "next of kin"; (9) "Interested persons" and "persons interested in the estate" mean heirs, legatees, devisees, distributees, spouses and creditors, or others having a property right in or claim against an estate being administered; and such words mean the persons entitled to the estate of a decedent in the event of intestacy; (10) "Legacy" has the same meaning as "bequest," hereinbefore defined; (11) "Legatee" and "devisee" may be construed as synonymous; (12) "Letters" nieans letters of administra.tion or letters testamentary; (13) "Personal representative" means the executor or administrator; (14) "Probate" means not only probate proceedings pertaining to wills, but also the administration of estates; (15) "Property" means real estate, personalty, chases in action, or any interest in the same, legal or equitable. History.- 3, ch , 1933; CGL 1936 Supp. 5457(3); am. 1, ch ,

19 2553 FLORIDA PROBATE LAW, FIRST PART Who may make a will.-any person, male or female, married or single, who is eighteen years or more of age and who is of sound mind may make a will. No other person may make a will. Hlstory.- 5, ch , 1933; CGL 193& Supp. 5477(1); am. 1, ch , Property which may be devised. (!) Any property, real or personal, held by any title, legal or equitable, with or without actual seisin, may be devised or bequeathed by will; provided, however, that whenever a person who is head of a family, residing in this state and having a homestead therein, dies and leaves either a widow or lineal descendants or both surviving him. the homestead shall not be the subject of devise, but shall descend as otherwise provided in this Jaw for the descent of homesteads. (2) A will becomes effective at the time of the death of the testator, and all property, real or personal, acquired by the testator after making his will is transmissible under general expressions in the will showing such to be the intention of the testator. Every will containing a residuary clause shall transmit after-acquired property un- 'less the testator expressly states in his will that such is not his intention. Hlstory.- 6, ch , 1933; CGL 1936 Supp. 6477(2); am. 1, ch , cf , Life Insurance , Homestead , Dower Requisites of nuncupative wills.-no nuncupative will shall be good unless it is proved by the oaths of three witnesses present at the making thereof; nor unless it is proved by the said witnesses that the testator at the time of pronouncing the same did desire the persons present, or some of them, to bear witness that such was his will, or to that effect; nor unless such nuncupative will was made at the time of the last sickness of the deceased. Personal property only shall be subject to disposition by nuncupative wills. Hlstory.- 7, ch , 1933; CGL 1936 Supp. 6477(3); am. 1, ch , cf , , Time of proof and probate Execution of wills.-every will, other than a nuncupative will, must be in writing and must be executed as follows: (1) The testator must sign his will at the end thereof, or some other person in his presence and by his direction must subscribe the name of the testator thereto. (2) The testator, in the presence of at least two attesting witnesses present at the same time, must sign his will or cause his name to be signed as aforesaid or acknowledge his signature thereto. (3) No will executed by a nonresident of Florida, either before or after this law takes effect, is valid as a will in this state unless it is executed in accordance with the laws of this state in force at the time of its execution, except that a will valid under the laws of the state or country in which the testator is domiciled at the time of his death is valid in this state, so far as it relates to personal property. ( 4) A will executed by a resident of this state prior to October 1, 1933, is valid if executed according to the laws of this state in force at the time of its execution. (5) All devises and bequests to subscribing witnesses are void unless there are at least two other disinterested subscribing witnesses to the will. If a subscribing witness would be entitled to any share of the estate of the testator in case the will were not established, he shall take such proportion of the devise or bequest made to him in the will as does not exceed the share of the estate which would be distributed to him if the will were not established. ( 6) No particular form of words is necess~ry to the validity of a will if it is executed accordmg to the formalities required by law. (7) A codicil shall be executed with the same formalities as a will. Hlstory.- 8, ch , 1933; CGL 1936 Supp. 6477(4)~ 11m. 1, ch , Effect of fraud, duress, mistake or undue influence.-a will is void if the execution thereof is procured by fraud, duress, mistake, menace or undue influence. Likewise, any part of a will is void if so procured, but the remainder of the will not so procured shall be valid if the same is not invalid for other reasons. Hlstory.- 9, ch " 1933; CGL 1936 Supp. 5477(5) ~ am. 1, ch , Revocation by fraud.-if the revocation of a will, or any part thereof, is procured by fraud, duress, menace or undue influence, such revocation shall be void. Hlstory.- 10, ch , 1933; CGL 1936 Supp. 5477(6) ~ am. 1, ch , Marriage after execution of will. When a person marries after making a will and the spouse survives the testator, such surviving spouse shall receive a share in the estate of the testator equal in value to that which such sur viving spouse would have received if the testator had died intestate, unless provision has been made for such spouse by marriage contract or unless such spouse is provided for in the will, or unless the will discloses an intention not to make such provision. The share of the estate which is assigned to such pretermitted spouse shall b.e raised in accordance with the order of appropriation of assets set forth in this law. Hlstory.- 11, ch , 1933; CGL 1936 Supp. 5471(7);. am. 1, ch , Children born after execution of will. -When a testator omits to provide in his will for any of his children born after the making of the will and such child has not had bestowed upon him by way of advancement a portion of the testator's property equivalent to a child's part, unless it appears from the will that such o~ission was intentional, such child shall receive a share in the estate of the testator equal in value to that which he would have received if the testator had died intestate. The share of the estate which is assigned to such pretermitted child shall be raised in accordance with the order of appropriation of assets set forth in this law. Hlstory.- 12, ch , 1933; CGL 1936 Supp. 6477(8);. a.m. 1. ch , 1945.

20 FLORIDA PROBATE LAW, FIRST PART Implied revocation by subsequent inconsistent will.-a will is revoked by a subsequent inconsistent will, even though the last will does not expressly revoke all previous wills; but such revocation extends only so far as the inconsistency exists. Hlstory.- 13, ch , 1933; CGL 1936 Supp. 6477(9); am. 1, ch , Revocation by written instrument. A will or any part thereof may be revoked or altered by a subsequent written will, codicil or other writing, declaring such revocation or alteration; provided, that the same formalities required for the execution of wills under this law are observed in the execution of such will, codicil or other writing. Hlstory.- 14, ch , 1933 ; CGL 1936 Supp. 5477(10); am. 1, ch , Other revocation.- ( I) A will may be revoked by the testator himself or by some other person in his presence and by his direction, by burning, tearing, canceling, defacing, obliterating or destroying the same, with the intent and for the purpose of revocation. (2) Neither subsequent marriage nor subsequent marriage and birth of issue shall revoke the prior will of any person; but the pretermitted child or spouse shall inherit as set forth in this law regardless of such prior will. Hletory.- 15, ch , 1933 ; CGL 1936 Supp. 5477(11); am. 1, ch , Revival by revocation.-the revocation of a will expressly revoking a former will shall not revive the former will, even though such former will is in existence at the date of the revocation of the subsequent will. Hlstory.- 16, ch , 1933; CGL 1936 Supp. 6477(12); am. 1, ch , Revocation of codicil.~the revocation of a will revokes all codicils thereto previously made. Hlstory.- 17, ch , 1933 ; CGL 193& Supp. 5477(13); am. 1, ch , Republication of wills by codicil. The execution of a codicil referring to a previous will has the effect of republishing the will as modified by the codicil. Hlstory.- 18, ch , 1933; CGL 1936 Supp. 5477(14) ; am. 1, ch , Republication of wills by re-execution.-if a will has been revoked or if it is invalid for any other reason, it may be republished and made valid by the r-e-execution of the same with the formalities required by this law for the execution of wills. Hlstory.- 19, ch , 1933 ; CGL 1936 Supp. 5477(15); am. 1, ch , Charitable devises and bequests.-if a testator dies leaving issue of his body or an adopted child, or the lineal descendents of either, or a spouse, and if the will of such testator devises or bequeaths the estate of such testator, or any part thereof, to a benevolent, charitable, literary, scientific, religious or missionary institution, corporation, association or purpose, or to this state, or to any other state or country, or to a county, city or town in this or any other state or country, or to a person in trust for any such purpose or beneficiary, whether or not such trust appears on the face of the instrument making such devise or bequest, such will as to such devise or bequest shall be invalid unless it was duly executed at least six months prior to the death of the testator. Hlstory.- 20, ch , 1933; CGL 1986 Supp. 5477(16); am. 1, ch , Lapsed or void legacies or devises. ( I) If a devisee or legatee dies during the lifetime of the testator, the testamentary disposition to such devisee or legatee lapses unless an intention appears from the will to substitute another in his place; but, when any property is devised or bequeathed to an adopted child or blood kindred of the testator, and when such devisee or legatee dies before the testator, leaving lineal descendents, or is dead at the time the will is executed, leaving lineal descendents who survive the testator, such legacy or devise does not lapse, but such descendents take the property so given by the will in the same manner as the devisee or legatee would have done had he survived the testator. (2) If a legacy or devise is void or lapses, it shall become a part of the residuum and shall pass to the residuary legatee or devisee unless a contrary intent is expressed by the testator in his will. Hlstory.- 21, ch , 1933; CGL 1936 Supp. 5477(17) i. am. 1, ch , Vesting of legacies or devlses.-the death of the testator is the event which vests the right to legacies or devises unless the testator in his will has provided that some other event must happen before a legacy or devise shall vest. History.- 22, ch , 1933; CGL 1936 Supp. 6477(18); am. 1, ch , Income from legacies or devises. The net income, interest or increase arising from property specifically devised or bequeathed shall belong to the specific legatees and devisees entitled thereto from the date of the death of the testator. From and after the time fixed by the county judge in an order of distribution, general legacies shall bear legal interest until paid. History.- 23, ch , 1933; CG L 1936 Supp (19) ; am. 1, ch , Order of succession.-the real and personal property of an intestate shall descend and be distributed as follows: (1) To the surviving spouse and lineal descendants, the surviving spouse taking the same as if he or she were one of the children. (2) If there are no lineal descendants, to the surviving spouse. (3) If there is no surviving spouse, to the lineal descendants. ( 4) If there is none of the foregoing, to the father and mother equally, or to the survivor of them. (5) If there is none of the foregoing, to the brothers and sisters and the descendants of deceased brothers and sisters. (6) If there is none of the foregoing, the estate shall be divided into moieties, one of which shall go to the paternal and the other to the maternal 'kindred in the following course: (a) To the grandfather and grandmother equally, or to the survivor of them. (b) If there is no grandfather or grandmother, to the uncles and aunts and the descendants of such of them as may be deceased.

21 2555 FLORIDA PROBATE LAW, FIRST PART (c) If there is no grandparent, uncle or aunt, or their descendants, to the great-grandfathers and the great-grandmothers equally, or to the survivor of them. (d) If there is no great-grandfather or greatgrandmother, then to the brothers and sisters of the grandfather and grandmother on the same side and to the descendants of such of them as may be -deceased. (e) And so in other cases without end, passing to the next lineal ancestor or ancestors, and, for want of them, to the descendants of such ancestors. (7) Where the estate is hereinbefore directed to go by moieties to the paternal and the maternal kindred, if there are no such kindred on the one part, the whole shall go to the other part; and, if there are no kindred on either the one part or the other, the whole estate shall go to the kindred of the deceased spouse of the intestate in like course as if such deceased spouse had survived the intestate and then died entitled to the estate. ' Hlstory.- 24, ch , 1933; CGL 1936 Supp. 5480(1); am. 1, ch , cf , Distribution of estate Half blood.-in the cases before mentioned, where the estate is directed to pass to the collateral kindred of the intestate, if part of such collateral kindred are of the whole blood to the Intestate and the other part of the half blood only, those of the half blood shall inherit only half as much as those of the whole blood; but, if all are of the half blood, they shall have whole portions. Hlstory.- 25, ch , 1933; CGL 1936 Supp. 5480(2); am. 1, ch , Inheritance per stirpes.-descent and distribution, whether to lineal descendants or to collateral heirs, shall always be per stirpes. Hlstory.- 26, ch , 1933; CGL 1936 Supp. 5480(3); am. 1, ch , Presumption of order of death. When there is no clear and convincing evidence of the order in which the deaths of two or more persons occurred, no one of such persons shall be presumed to have died first, and the estate of each shall pass as though he had survived the other or others. Hlstory.- 27, ch , 1933; CGL 1936 Supp. 5480(4); am. 1, ch , cf , Uniform simultaneous law Descent of homesteads.-the homestead shall descend as other property; provided, however, that if the decedent is survived by a widow and lineal descendants, the widow shall take a life estate in the homestead, with vested remainder to the lineal descendants in being at the time of the death of the decedent. Hlstory.- 28, ch , 1933; CGL 1936 Supp. 5480(5); am. 1, ch , cf , Administration of exempt estates Alien.-An alien may devise, bequeath, inherit and transmit inheritance in real and personal property as if he were a citizen of the United States; and in making title by descent it shall be no bar to a party that the intestate or any ancestor through whom he derives his descent from the intestate is or has been an alien. Hlstory.- 29, ch , 1933; CGL 1936 Supp. 5480(6); am. 1, ch , Illegitimate child as heir.- (1) Every illegitimate child is an heir of his mother, and also of the person who, in writing, signed in the presence of a competent witness, acknowledges himself to be the father. Such illegitimate child shall inherit from his mother and also when so recognized, from his father, in the sam~ manner as if the child had been born in lawful wedlock. However, such illegitimate child does not represent his father or mother by inheriting any part of the estate of the parents' kindred either lineal or collateral, unless his parents ha~e intermarried, in which event such illegitimate child shall be deemed legitimate for all purposes. (2) If any illegitimate child dies intestate, without lawful issue or spouse, his estate shall descend to his mother, or, in case of her decease, to her heirs at law. Hlstory.- 30, ch , 1933; CGL 1936 Supp. 6480(7); am. 1, ch , ' Adopted child.-an adopted child, whether adopted under the laws of Florida or of any other state or country, shall be an heir at law and for the purpose of inheritance, shall be reg~rded as a lineal descendant of his adopting parents, and the ~dopting parents shall. inherit from the adopted child. The adopted child shall be regarded as the natural brother or sister of the natural children and other adopted children of the adopting parents for the purpose of ~nheritance from or by them. The adopted child shall inherit the estate of his blood parents, but his blood parents shall not inherit from the adopted child. History.- 31, ch , 1933; CGL 1936 Supp. 6480(8); 1, ch , 1945; am. 1, ch , Murderer.-Any person convicted of the murder of a decedent shall not be entitled to inherit from the decedent or to take any portion of his estate as a legatee or devisee. The portion of the decedent's estate to which such murderer would otherwise be entitled shall pass to the persons entitled thereto as though such murderer had died during the lifetime of the decedent. History.- 32, ch , 1933; CGL 1936 Supp. 6480(9); am. 1, ch , Inheritance from persons of color. (1) Whenever, upon the death of any person of color seized or possessed of real or personal estate, there are persons in being who would inherit said property or any portion thereof under the several statutes of descent in this state but who are prevented from doing so on account of the legal incapacity of said persons of color to contract marriage in a state of slavery (which said estate would otherwise escheat to the state), all the right, title and interest of the State of Florida is vested in and waived in favor of those persons who would have inherited said estate if said parties had been competent to contract marriage. (2) The fact that the said parties have failed to obtain a license to marry or have failed to be married according to the forms of law shall in no case affect the operations of this section, but the

22 FLORIDA PROBATE LAW, FIRST PART 2556 same shall be held to apply to all cases wherein the parties were known as husband and wife. Hlstory.- 33, ch , 1933; CGL 1936 Supp, 6480(10); am. 1, ch , Escheat.- (1) Whenever any person dies leaving. property and without being survived by any person entitled to the same, such property shall escheat to the State of Florida. (2) In any such case, or in any case where doubt exists as to the existence of any person entitled to the property, the personal representative shall, within one year after letters have been issued to him, institute a proceeding for the determination of beneficiaries as provided in this law, and citation shall be served upon the attorney general of the State of Florida. If the personal representative fails to institute such proceeding within the time herein fixed, the same may be instituted by the attorney general, and it is hereby made the duty of the attorney general to secure from each county judge of the state, and the duty of each such county judge to furnish to the attorney general, on or before January 15 of each year, a list of all estates being administered in such county judge's court wherein no person appears to be entitled to the assets thereof and in which the personal representative has instituted no proceedings for the determination of beneficiaries. (3) If the county judge determines in such proceeding that there is no person entitled to the property and that the property escheats, said property shall, within a reasonable time to be fixed by the county judge, be sold and converted into money and paid to the treasurer of the State of Florida and by him deposited in the state school fund. (4) Any person claiming to be entitled to the property of the decedent may, at any time within twenty years after the granting of letters, by petition filed with the county judge and service of citation upon the attorney general, reopen the administration and assert his rights. If such claimant is determined to be entitled to any of the property of the decedent, the county judge shall by order fix the amount to which he is entitled, and the same shall be repaid to him without interest by the officials charged with the disbursement of state school funds. If no such claim is asserted in the manner and within the time herein fixed, the title of the State of Florida to such property and the proceeds thereof shall become absolute. (5) The attorney general shall represent the State of Florida in all proceedings with respect to escheated estates. (6) Except as herein provided, escheated estates shall be administered as in other cases. Hlstory.- 33, ch , 1933; CGL 1936 Supp, 6480(10), am. 1, ch , 1943; am. 1, ch , cf , Determination of beneficiaries Dower in realty and personalty. Whenever the widow of any decedent shall not be satisfied with the portion of the estate of her husband to which she is entitled under the law of descent and distribution or under the will of her husband, or both, she may elect in the manner provided by law to take dower, which dower shall be one-third part in fee simple of the real property which was owned by her husband at the time of his death or which he had before conveyed, whereof she had not relinquished her right of dower as provided by law, and one-third part absolutely of the personal property owned by her husband at the time of his death, and in all cases the -widow's dower shall be free from liability for all debts of the decedent and all costs, charges and expenses of administration; provided, that nothing herein contained shall be construed as impairing the validity of the lien of any duly recorded mortgage or the lien of any person in possession of personal property. The homestead shall not be included in the property subject to dower but shall descend as otherwise provided by law for the descent of homesteads. In any case where the dower interest of the widow shall have the effect of increasing the estate tax, her dower shall be ratably liable with the remainder of the estate for the estate taxes due by the estate of her deceased husband. Whenever the decedent has died intestate leaving no lineal descendants and the widow has duly elected dower, all property of the decedent not included in the widow's dower shall descend to her subject to the debts of the decedent except that the homestead of the decedent shall descend to her with the exemptions provided by the constitution. Hlstory.- 35, ch , 1933; 1, ch , 1935; CGL 1936 Supp. 5507(1); 1, ch , 1937; 1, ch , 1939; 1. ch , 1941; am. 7, ch , 1943; am. 1, ch , 1945; 1, ch , 1951 ; am. 1, ch , cf , Possession of estate during administration , Assignment of dower Election to take dower.- (1) In order to take dower, a widow must so elect by an instrument in writing, signed by her and acknowledged or sworn to by her before any officer authorized to take acknowledgements or to administer oaths, and filed, within nine months after the first publication of the notice to creditors, in the office of the county judge in whose court the estate of the deceased husband is being administered. The county judge shall record all elections to take dower. (2) The guardian of a widow suffering under disabilities may, at any time during which the widow might have done so, file an election on behalf of the widow to take dower in lieu of the provisions of the will of her husband or under the law of descent and distribution, and thereupon the county judge shall grant or deny such election as the best interest of the widow may require. If the widow shall die prior to the expiration of the time allowed for the filing of her election to take dower in lieu of the provisions of the will of her husband or under the law of descent and distribution, and shall not have filed such election, then the same may be filed at any time before the expiration of such period by any person who has a beneficial interest in the estate of such

23 2557 FLORIDA PROBATE LAW,. FIRST PART deceased widow and such election shall be granted or rejected by the county judge as the best interest of the parties entitled to participate in the estate of the deceased widow may require. History.- 36, ch , 1933; CGL 1936 Supp. 6607(2); 1, ch , 1945 ; 1, ch , Articles in addition to dower.-the widow of an intestate shall be entitled to receive and retain all wearing apparel and such household goods and farming utensils, provisions and clothing as may be necessary for her maintenance and that of the family, to be set apart by the county judge either upon her petition or upon the petition of the personal representative, with citation or notice to the other, special regard being had for the ability of the widow and children to provide for and maintain themselves. Such articles shall not be considered as part of the widow's dower or inheritance in any case. Hlstory.- 37, ch , 1933; CGL 19S6 Supp. 6607(8); am. 1, ch , 1946

24 FLORIDA PROBATE LAW, SECOND PART CHAPTER 732 FLORIDA PROBATE LAW, SECOND PART Jurisdiction of county judge. Court always open. Power to enforce judgments. Disqualification of county judge. Substitution of circuit judge. Venue of probate proceedings. County judge's records. Pleadings. Citation and service. Service or publication when not otherwise provided Duty to designate residence and post-office address Testimony and subpoenas Depositions Costs Right of appeal Appeals to the circuit court; parties Dismissal of appeals to circuit court Appeal to the circuit court amendable Appeals to the supreme court Supersedeas Curators Production of wills Petition for probate of will Proof of wills Commission to prove will Effect of probate Will void as affecting surviving divorced spouse Establishment and probate of lost or de stroyed will. Notice of probate. Caveat: proceedings. Revocation of probate. Burden of proof in contests. Discovery of later will. Discovery of will after settlement of estate. Probate of will written in foreign language Probate of will of resident after foreign pro bate Foreign probate prior to local probate of estate of resident decedent prohibited Probate of notarial will Effect of probate of will after foreign pro bate and of notarial will. Time of proof of nuncupative will. Probate of nuncupative will. Construction of will by probate court. Construction of wills by courts of equity. Petition for letters of administration. Preference in appointment of administrator. Individuals who may be appointed personal representatives: resident agents. Minor not qualified. Nonresidents. Married woman. Trust companies and other corporations. Joint executors and administrators. Effect of appointment of debtor or creditor. Succession of administration. Executor de son tort. Guardian ad litem. Administrator ad litem. Recovery of judgment; proceedings. Judgment in favor of personal representative Compensation of administrator ad litem Oath of personal representative Oaths and affidavits Bond of personal representative Bond by a surety company Bond required of executor Insufficiency of bond Liability of surety County judge to act on his own motion Informality of bond Release of surety Jurisdiction of county judge.-the disqualified and also in estates in which he is an county judge shall have jurisdiction of the administration, settlement and distribution of estee or executor under the will, or a witness there heir of the decedent or is a legatee, devisee, trustates of decedents, of the probate of wills, of the to. establishment of lost or destroyed wills, of the History.- 41, ch , 1933; CGL 1936 Supp. 6541(4); granting of letters testamentary and of administration and of all other matters usually pertain Substitution of circuit judge.- ing to courts of probate. ( I) In the case of the disqualification, absence, sickness, or other disability of the county History.- 38, ch , 1933 ; CGL 1936 Supp. 6641(1); cf , Jurisdiction In removal proceedings. judge, any judge of the circuit court of the county may discharge all of the duties and pow Court always open.-the court of the ers of the county judge as a probate judge. In county judge, as a court of probate, shall be open the event such circuit judge is disqualified, abat all times for the transaction of its business. sent from the circuit, sick, or under other dis History.- 39, ch , 1933; CGL 1936 Supp. 6541(2); ability, then any other circuit judge in the state am. 2, ch who is not disqualified, may discharge such Power to enforce judgments.-in all duties and powers. cases where the county judge is authorized to (2) The county judge, when disqualified for enter orders, judgments or decrees, he may issue interest, shall file a certificate thereof. In no attachments of persons, or property, executions, instance may he act as judge in any matter in writs of possession, and all such other writs and which he is interested. Should he presume so orders as are necessary or appropriate to enforce to do, the circuit judge may, in his supervisory such orders, judgments or decrees. jurisdiction of probate matters, upon proper Hlstory.- 40, ch , 1933; CGL 1936 Supp. 6641(3); petition and short n.otice to the county judge, revise the action of the county judge. cf , , Judgments for estates. (B) Sickness, absence, or disability of the Disqualification of county judge.- county judge shall be conclusively evidenced by The county judge shall be disqualified for interest the certificate o_f the.clerk of t~e count.y judge's in all instances in which judges generally are so court. or otherwise evidenced prima facie by the

25 2559 FLORIDA PROBATE LAW, SECOND PART affidavit of any interested party. No decree or order of the circuit judge in probate reciting the disqualification, sickness, absence, or disability of the county judge shall be collaterally attacked. (4) No county judge, while holding such office, shall act as personal representative of any estate any part of which is required to be administered in his own court; provided, however, a county judge, individually in his personal capacity, on his certificate of disqualification and on appointment and continued supervision by a judge of the circuit court acting as county judge, may serve as personal representative of the estate of his deceased spouse, adoptive parent, adopted child, or the estate of any decedent related to him by lineal consanguinity. Hlstory.- 42, ch , 1933 ; CGL 1936 Supp. 5541(5); am. 1, ch , 1945; 2, ch , 1945; am. 1, ch , Venue of probate proceedings.-the venue of probate of all wills and granting of letters of administration shall be: (1) In the county in this state where the decedent had his domicile. (2) If the decedent had no domicile in this state, then in any county in whiph thq decedent was possessed of any property. (3) If the decedent had no domicile in this state and was possessed of no property in this state, then in the county where any debtor of the decedent resides. ( 4) For the purpose of this section a married woman whose husband is an alien or a nonresident of Florida may establish or designate a separate domicile in this state. Hlstory.- 43, ch , 1933; CGL 1936 Supp. 5541(6); County judge's records.-- (1) Every county judge shall recvrd, or cause his clerk to record, distinctly and at full length, in books kept for that purpose, all wills, testaments and codicils of which probate shall be granted, all letters testamentary and of administration, all bonds of personal representatives (exclusive of supersedeas bonds), all orders and judgments made by him and all other writings in this law especially required to be recorded. (2) Any interested person may, at his own cost and expense, have recorded as aforesaid any document or pleading filed in the office of the county judge; provided, that the cost of recording same shall not be taxed as costs against the estate unless so ordered by the county judge. A duly certified transcript of the whole or any part of probate or administration proceedings before any.court of. this state or of any foreign state or country may, upon the payment of appropriate fees, be filed or recorded in the office of any county judge of this state. (3) All such record books shall be indexed as to the various estates and as to the subject matter therein, and shall be open to the inspection of all persons. ( 4) All records, files, orders, judgments and decrees of any court of this state heretofore exercising probate jurisdiction shall be taken and held to be those of the county judge as if made or rendered by said judge, and shall be placed and remain in his custody. Copies thereof certified by the county judge shall be competent evidence. ( 5) A progress docket of the proceedings in connection with each estate shall be kept by each county judge, in which docket shall be noted each pleading or document filed and each order entered, with notation of book and page of record of each writing recorded; and the residence and postoffice address of each party who has designated :lame. (6) County judges shall, upon request and payment of their fees, make and deliver certified copies of any pleading or document filed in their offices or of any of the records of their offices. (7) County judge~, in making certified copies of letters testamentary or of letters of administration, may upon request further certify, whenever such is the fact, that the letters so certified stand unrevoked at the date of the certificate; and such certificate shall be prima facie evidence of such fact. (8) No county judge shall permit any paper, instrument, document, pleading or file to be removed from his office or custody except under circumstances named in this law or for purposes of taking testimony. (9) County judges may record any and all instruments entitled to record by such photographic process and with such equipment and supplies as may be recommended by the county judge and approved and designated by the board of county commissioners. Hlstory.- 44, ch , 1933; CGL 1936 Supp. 5541(7); Pleadings.- (!) The pleadings before the county judge in probate matters shall be in writing and signed by the pleader or his attorney. All technical forms of pleadings are abolished. No defect of form shall impair substantial rights, and no defect in the statement of jurisdictional facts actually existing shall render void any proceedings. (2) PETITION.-The petition shall state in short and simple manner the facts constituting jurisdiction of the court and the ground of the proceedings and shall pray for such relief as is desired. It shall be filed before any process shall issue. (3) DEFENSE.-Defenses shall be filed on or before the return day specified in the notice or citation. The answer shall, in short and simple manner, set up the facts constituting the defense. ( 4) Upon the filing of a sufficient answer the cause shall be at issue, new matters being deemed denied; and the cause shall be tried at such early date as the county judge may direct. (5) MOTIONS.-Either party may test the sufficiency of a:n adversary's pleading, or of any part thereof, by motion. Motions addressed to an answer shall be filed within ten days after the return day or within such other time as the county judge may in exceptional circumstances allow. Disposition of motions and all matters of amendment and pleading generally shall be in

26 FLORIDA PROBATE LAW, SECOND PART 256(} accordance with the direction of the county judge. Reasonable notice of not more than five days shall be gl.ven to the adversary or his counsel of the hearing of any motion. Ordinarily not more than ten days shall be allowed for further pleading. (6) COPIES.-Copies of all pleadings shall be delivered or mailed to the adversary or his attorney. History.- 45, ch , 1933; CGL 1936 Supp. 5541(8) ; Citation and service.- (!). In all matters pertaining to the probate jurisdiction of the county judge where process is necessary or is ordered by the county judge, parties in interest may be cited to answer any petition,by a citation in substantially the following form, which may be served personally upon the respondent wherever found, within or without the State of Florida: In the County Judge's Court County, Florida Estate of , Deceased. The State of Florida to : You are hereby notified that a petition has been -filed in said court, a true copy of which is hereto attached; an.d.you. ar,e hereby.required ta file your written defenses thereto within twenty days after service hereof. Should you fail therein, judgment will be entered in due course upon the said petition. WITNESS my hand and the seal of said Court at, Florida, this day of.., A. D. 19, County Judge By Clerk (2) A true copy of the petition shall be attached to each copy of the citation served personally. (3) Service may be made within the State of Florida in the manner prescribed by law for the service of summons ad respondendum, by any sheriff, constable, deputy sheriff, deputy constable or by any other person; provided, that if service is made by other than an officer, the return of service shall be by affidavit. ( 4) Service may be made without the State of Florida by any person, by the delivery to the person to be served of a true copy of the citation and of attached copy of the petition, and the return of service shall be by affidavit. (5) Service shall be made upon a minor or insane person by the delivery of a true copy of the citation and of attached copy of petition to such minor or insane person and also to the person in whose care and custody such minor or insane person is. (6) The return of service of citation in every case shall state the date when it was received by the person making the return, the date when it was served, the place of service, the name of the person served and the manner of service. Returns shall be amendable so as to speak the truth, upon application to the court is~uing the process : and when amended shall be effective as of the date of the original return. (7) (a) If personal service is impracticable, then upon order of the county judge so adjudicating, based upon an affidavit setting forth the reasons thereof, citation may be published once a week for four consecutive weeks, four publications being sufficient, in a newspaper published in the county where the court is located. (b) Whenever publication of any citation, notice, pleading or other writing is required by any section of this law, and there is no newspaper conforming to the requirements of the laws of Florida in the county of the administration, then, in lieu of such publication in a newspaper, the same may be published by posting a true copy thereof at the courthouse and a true copy at each of two other public places in the county of the administration, such places to be prescribed by the county judge. (c) Proof of publication or of posting shall be by affidavit and shall be filed in the office of the county judge. (d) Citation to be published shall be substantially as follows: In the County Judge's Court..,.. ---, :------Cou:qty, Florida Estate ol..:c c':: -: ~ Deceased; - The State of Florida to _ and all other persons -concerned: You are hereby notified that a petition has been filed in said court praying for and you are hereby required to file your written defenses thereto within forty days after the first publication or posting hereof. Should you fail therein, decree will be entered in due course upon said petition. WITNESS my hand and the seal of said Court at County, Florida, this day of, A. D. 19. County Judge By Clerk First published or posted on _ (8) Service of citation or of any notice may be waived in writing by any party or person interested. (9) If any person cited fails to file his defense to the petition within the time prescribed in the citation, or within such time as the county judge, under exceptional circumstances, may allow, then the matter shall proceed ex parte as to such person, and judgment may be entered in accordance with the right and justice of the case. Hlstory.- 46, ch , 1933; CGL 1936 Supp. 5541(9); Service or publication whe.n not otherwise provided.-whenever any citation, notice,. pleading or other writing is required by any section of this law to be served or published and the manner thereof is not specified in such section, such service or publication may be made as pro vided in this law for the service or publication of citations. Hlstory.- 47, ch , 1933 ; CGL 1936 Supp. 5541(10);

27 2561 FLORIDA PROBATE LAW, SECOND PART Duty to designate residence and postoffice address.- (1) Every creditor or claimant against the estate of a decedent and every heir, distributee, surviving spouse, legatee and devisee of such decedent shall file with the county judge of the county in which the estate of said decedent is in administration or in which such decedent's will may be probated a designation of the residence and post office address of such party, and, when there occurs a change of same, file likewise a designation of such change. Any party who has filed a claim, petition, answer, election or other pleading or appearance in any county judge's office in relation to any estate, without having made the aforesaid designation, shall be entitled to no notices whatever of any further proceedings with reference to such estate. (2) Service of any citation or notice upon any party who has designated his residence and post office address as her-einabove required may, at the option of the moving party, be made by registered mail addressed to such party at the post office address designated. Proof of service by mailing may be by certificate of the county judge or by affidavit of the person mailing the citation or notice. Hlstory.- 48, ch , 1933; CGL Supp. 5541(11); cf , Nonresident representatives to appoint resident agent Testimony and subpoenas.-testimony shall ordinarily be taken in open court. The county judge shall, upon application of any party, issue subpoenas and subpoenas duces tecum for the appearance of witnesses and production of documents upon any trial or hearing. His:ory.- 49, ch , 1933; CGL 1936 Supp. 5541(12); a m. ~ 2. c h , ';"~2.1 :; Depositious.- (1) The testimony of any party or witness may be taken in probate proceedings by deposition de bene esse at any time either before or after issue under either of the following methods: (a) Said testimony may be taken under the method prescribed in the "Florida chancery law." (b) Said testimony may be taken before any notary public, not being of counsel or attorney for any of the parties. nor interested in the event of the proceedings. The depositions may be taken either upon oral interrogatories or upon written interrogatories furnished to the officer taking the depositions. Cross-interrogatories may likewise be either oral or written. (2) Reasonable notice must first be given in writing by the party or attorney proposing to take such deposition to the opposite party or attorney, which notice shall state the names of the witnesses and the time and place of taking the testimony. (3) The county judge shall upon application issue any necessary subpoenas running throughout the state to parties and witnesses who, upon being served, may be compelled to attend and testify as in other cases. The county judge may enforce this section by contempt or other proceedings. ( 4) Any party failing to attend or to answer any lawful question or to subscribe the testimony given by him shall be liable, upqn the motion of the opponent and certificate of the notary evidencing such default, to have his pleading stricken as sham and be placed in the same situation as if he had failed to file his pleading. (5) Every witness or party deposing under this section shall be sworn to testify the whole truth. His testimony shall be reduced to writing or typewriting by the notary taking the deposition or by some person under his personal supervision and shall thereupon be subscribed by such witness or party unless subscription is waived. (6) Every deposition taken under this section shall be retained by the magistrate taking it until he delivers it by mail or by his own hand into the court for which it is taken. Upon receipt by the court, depositions shall be filed and open to inspection of all parties. Each deposition shall contain the notice given and the certificate of the magistrate taking it, showing that he is not of counsel in the cause, not related to any of the parties and not interested in the event and showing compliance herewith. (7) No deposition taken hereunder may be used upon the trial if it is made to appear that the deponent is within the county and able to testify at the time of trial, except that in such case any part of any deposition of any party may be used as an admission against interest, and also except that in such case any witness may be impeached by any part of any deposition. History.- 50, c!l , 1933 ; CGL 1936 Supp. 5541(13); a m. 2, ch , cf , Commission to prov e will Costs.- (1) In all probate proceedings costs may be awarded in the discretion of the county judge, ordinarily abiding the result of each particular proceeding, but otherwise when it would be unjust that the failing party pay costs. (2) When such.costs are to be paid out of the estate, the county judge may, in his discretion, direct from what portion of the estate they shall be paid. (3 ) An executor, being prima facie justified in offering a will, in due form, for probate, shall generally receive his costs and attorney's fees out of the estate, even though he is unsuccessful. Hlstory.- 51, ch , 1933; CGL 1936 Supp (14); a m. *2, ch , Right of ap.peal.- (1) All orders, judgments, and decrees of the county judge finally determining rights of any party in any particular proceedings in the administration of the estate of a decedent may, as a matter of right, be appealed to the circuit court and from the circuit court to the supreme court. (2) In the event of a circuit judge's sitting as a county judge as provided in , the appeal from any order, judgment, or decree of such circuit judge sitting as a county judge shall be to the circuit court and from the circuit court to the supreme court. Hlstory.- 52, ch , 1933 ; CGL 1936 Supp. 5541(15); a m. 2, ch , 1945 ; 2, ch , 1945; am. 2, ch , 1947; sub. (1 ) Am. 10, ch , 1951.

28 FLORIDA PROBATE LAW, SECOND PART Appeals to the circuit court; par ties.- (1) RIGHT TO APPEAL; PARTIES.-Any p;1rty or parties aggrieved by any order or judgment of the county judge finally determining their rights in any particular proceedings in the administration of an estate may take an appeal from such order or judgment, and all other parties to the case, unless they are named as parties appellant, shall automatically become parties appellee. (2) TIME FOR APPEAL.-An appeal to the circuit court from an order or judgment of the county judge in a probate matter must be taken within thirty days from the date on which the order or judgment appealed was filed in the office of the county judge. (3) HOW APPEAL TAKEN.-To take such an appeal the appellant must file in the office of the county judge a notice of appeal which identifies the order or judgment appealed and states that an appeal is taken from such order or judgment. The notice of appeal shall be recorded by the county judge, and no other notice of such appeal shall be necessary to give the circuit court jurisdiction of the parties and of the res. (4) ASSIGNMENTS OF ERROR AND DI RECTIONS AS TO RECORD.- (a) By appellant.-the assignments of error shall be in brief form, yet sufficient to appraise the appellate court of the errors complaineq of. The assignments of error and directions as to the record may be included in the notice of appeal, or they -may be filed separately or combined and filed together by the appellant at any time within ten days after the filing of the notice of appeal. Copies of said assignments and directions must be served on the appellee personally or by mail within ten days after the filing of the notice of appeal. (b) By appellee.-the appellee shall have ten days from the date of such service in which he may file additional directions.as to the record and cross-assignments of error, copies of which must be served on the appellant personally or by mail within said ten-day period. (5) ATTORNEY OF RECORD AGENT OF CLIENT.-In all matters relating to the prosecution or defense of an appeal, the attorney of record shall be accepted as the agent of his client, and any notice given by or to such attorney or ar..y action taken by him in the prosecution or defense of the appeal shall be binding on his client. (6) RECORD ON APPEAL.- (a) What to consist of; filing.-the record on appeal shall consist of the original probate file in the case appealed, or such portions thereof as have been designated by the parties in writing, and such other portions as the county judge may deem necessary or proper. After the filing of crnss-assignments of error, or if none are filed after the expiration of the time for filing them, the county judge shall deliver or cause to be delivered to the clerk of the circuit court the original records thus constituting the record on appeal, and he shall take an itemized receipt from said clerk for the probate records so delivered. (b) Supplemental record.-after the record has been transmitted to the appellate court, if it appears that any material part of the record has been omitted the county judge or the appellate court may order such omitted portion to be transferred to the appellate court, whether originally designated or not. (c) Stipulated record.-either before or after the filing of the assignments of error, the parties to the appeal or their attorneys of record may stipulate as to the contents of the record on appeal, in which event they need not give any further directions as to the contents of such record. They may also waive any portion of the time allowed for filing assignments and crossassignments of error. (7) HEARING; NOTICE.-It shall be the duty of the circuit judge, upon application of any party to the appeal, to set a time and place for the hearing of the appeal. Reasonable notice of the hearing shall be g~ven by such applicant to all the parties interested in the appeal. (8) CIRCUIT COURT MANDATE.-The judgment of the circuit court on appeal shall be recorded by the clerk of the circuit court, and said clerk shall deliver it to the county judge at the time he returns the original records. The original final judgment of the circuit court shall serve as its mandate. The county judge shall not be required to record said judgment. History.- 53, ch , 1933; CGL 1936 Supp. 5541(16); am. 2, ch , 1945; 2, ch , 7, ch , Dismissal of appeals to circuit court.- (1) Any appeal taken as aforesaid may be dismissed by the circuit court upon application of any appellee upon at least five days' notice to appellant upon the following grounds: (a) That the appeal was not taken within the time limited for taking appeals; or, (b) That such appeal, upon inspection of the file, appears to have been taken against good faith or merely for delay. (2) If motion to dismiss is made, the county judge shall, upon written request of appellee, deliver the record on appeal, or such portions thereof as may be designated in writing by the parties, to the clerk of the circuit court, taking a receipt for same, which file shall, if the appeal is dismissed, be returned to the county judge upon the expiration of the time for taking an appeal to the supreme court from such dismissal. History.- 54, ch , 1933; CGL 1936 Supp. 5541(17); am. 2, ch , 1945; 3, ch , Appeal to the circuit court amendable.-appellate proceedings shall be amendable, and no appeal shall be dismissed for any defect or omission not insisted upon by the adverse party. Any motion for dismissal because of an alleged defect or omission shall be granted only conditionally upon appellant's failing to amend within ten days. Appeal to the circuit court shall be merely a step in the cause, in the nature of a rehearing of the matter appealed, upon the existing record. Hletory.- 55, ch , 1933; CGL 1936 Supp. 5541(18);

29 2563 FLORIDA PROBATE LAW, SECOND PART Appeals to the supreme court.- (1) An appeal from the circuit court to the supreme court shall be governed in all respects by the law and the rules regulatin~ appeal~ in chancery except as herein otherwise provided. Such an 'appeal shall be taken within sixty days from the filing in the office.of the clerk of t?e circuit court of the order or JUdgment of the circuit court appealed. (2) After an appeal is taken, the clerk of the circuit court shall make up the record on the appeal to the supreme court from the origin~.! probate files in his custody, or from such portions as may be designated by the parties to the appeal, and he shall certify that such recqrd is correct. (3) The clerk of the circuit.court shall retain the original probate file until he has made up and certified the transcript, whereupon he may immediately return such file to the C?unt,Y judge. If there is no supersedeas of the ~Ircmt court's judgment, the mandate. sh~ll be dehve.red to the county judge at the expiration of the time limited for taking the appeal to the supreme court. History.- 56, ch , 1933; CGL 1936 Supp. 5541(19); am. 2, ch , 1945; 4, ch , Supersedeas.- (!) Every appeal to the circuit court sha~l, as a matter of right, operate as a supersedea~ If the appellant, within the time limited for t~kmg the appeal, files in the. office of the coun~y JUdge a supersedeas bond, with good and suffic1ent personal sureties or corporate surety approved by the county judge, the terms, conditions and amount of which bond shall have been fixed by order of the county judge upon notice of appellees. (2) Every appeal to the supreme court sha~l, as a matter of right, operate as a supersedea~ 1f the 'appellant, within the time limited for takmg the appeal, files in the office of the. clerk of the circuit court a supersedeas bond, w1th good and sufficient personal sureties or corpor~~;t~ surety approved by said clerk, the terms, conditions and amount of which bond shall have been fixed by order of the circuit judge upon notice to appellees. (3) For an appeal, either to the circuit coyrt or to the supreme court, from an?r?er appomting or removing executors, admm1strators or curators, to operate as a supersedeas or ha.ve the effect of placing or keeping the estate m the possession of the party appealing, bond shall be required sufficient in amount to cover the full value of the estate. ( 4) All supersedeas bonds in probate shall be payable to the governor of the State of Florida and his successors in office for the benefit of all concerned and conditioned for the payment of all costs and damages that may accrue to any and all persons whomsoever by reason of such appeal, should same be not prosecuted with success; and the language of this section shall be considered to be written into every such bond in addition to its special terms and conditions. Hlstory.-~57, ch. 1~ ; CGL 1936 Supp, 5541(20); nm. 2, ch , 1946, Curators.- (1} The county judge, whenever it is necessary sua sponte or upon the application of any pers~n, may appoint a curator to take charge of the estate of any deceased person until letters are granted. If, however, the person entitled to letters is a resident of the county where the property is situated, no such curator shall be appointed until after such notice as the county judge may direct to such person so entitled to letters. Upon the appointment, the county judge shall direct the person in possession of the effects of the deceased forthwith to deliver them into the possession of the curator, and this order, when not obeyed promptly, may be enforced by attachment and imprisonment for contempt. (2) If it is made to appear to the county judge, upon sworn petition, that there is great danger that said property or any portion of it is likely to be wasted, destroyed or removed beyond the jurisdiction of the court, and if the appointment of a curator would be delayed by giving the notice herein provided, then it shall be lawful for such judge to appoint a curator without first giving such notice. (3) Upon special orders of the county judge from time to time, the curator may be authorized to perform any duty or function of an administrator or executor. ( 4) Such bond shall be required of the curator as the county judge deems necessary to secure the property or proceeds, in case of sale, and the county judge may make an order for the sale of such portion of the property as should be sold; provided, however, that no such bond shall be required of banks and trust companies as curators. (5) The curator shall file immediately an inventory of the property. When the personal representative qualifies, the curator shall immediately account to the personal representative and deliver to him all assets of the estate in his handr, and in default thereof shall be subject to the provisions of this law relating to removed executors or administrators. (6) Curators shall be allowed such compensation for their services as the county judge deems reasonable. History.- 58, ch , 1933; 6, ch , 1935; CGL 1936 Supp. 5541(140); cf , Married woman as curator , Continuance of business by curator Production of wills.- (1) The custodian of a will, within t<>n days after receiving information that the testator is dead, must deposit such will with the county judge having jurisdiction of the estate of the decedent. Willful failure to do so shall render such custodian responsible for all costs and damages sustained by anyone; in the event the court finds that such custodian had no just or reasonable cause for withholding the deposit of said will. (2) By petition and citation, the custodian of any will, after ten days' notice of the death of the testator, may be compelled to produce and deposit the same as aforesaid. In such proceedings

30 FLORIDA PROBATE LAW, SECOND PART 2564 all costs, damages and a reasonable attorney's fee shall be decreed to petitioner against such delinquent custodian, in the event the court finds that such custodian had no' just or reasonable cause for withholding the deposit of said will. Hiotory.- 59, ch , 1933; CGL 1936 Supp. 5541(59); cf , Production of later will after probate of prior , Larceny of testamentary instrument Petition for probate of will.- (1) Every petition for the probate of a will shall be sworn to by the petitioner, his agent or his attorney and shall contain statements to the best of the petitioner's information and belief showing: (a) The domicile of the decedent at the time of his death;. (b) The date of his death ; (c) The approximate value of his estate; (d) The residence or post-office address of the pet"itioner; and, (e) The names, ages and residences of the surviving spouse and heirs at law of the decedent and their respective relationships to the decedent or averments showing that reasonable search hab been made and that they cannot be ascertained without delay which would adversely affect the estate. (2) No citation need be served before the probate of a will. Hiotory.- 60, c h , 1933 ; CGL 1936 Supp. 5541(21); cf , Petition for letters of a dministration , Petition for administration of estate of persons b elieved dead Proof of wills.-- (1) Last wills and testaments may be admitted to probate upon the oath of any attesting witness, taken before the county judge or before his clerk, or before a commissioner as provided in of these statutes. (2) When a will is offered for probate, if it appears to the court that the attesting witnesses have gone to parts unknown or are dead or have after its execution become incompetent or their testimony cannot be obtained within a reasonable time, it may be admitted to probate upon the oath, taken as above set forth, of the executor, whether he is interested in the estate or not, or of any person having no interest in the estate under the will, that he verily believes the writing exhibited to be the true last will and testament of lhe deceased. History.- 61, ch , 1933; CGL 1936 Supp. 5541(60); am. 2, ch , 1945; 5, ch , Commission to prove will.- (1) If any will is produced for probate and any witness attesting the same cannot without inconvenience appear before the county judge, the county judge may issue a commission to which such will or a photographic copy thereof is annexed, directed to any person who, by the laws of the state or country where such witness may be found, is authorized to administer an oath, empowering him to take proof of the attestation of such witness and certify same. (2) If the person to whom such commission is directed duly certifies that the witness personally appeared and made written oath.or affirmation, as the case may be (such written oath or affirmation to be attached to said certificate), as to the execution by the testator of the last will and testament, the original or photographic copy of which is annexed to such commission, such written oath or affirmation shall have the same operation and effect as if such written oath or affirmation had been made in the court whence the commission issued. History.- 62, c h , 1933; CGL 1936 Supp. 6541(61); a m. 2, ch , cf , Depositions Effect of probate.- (!) 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; and, until such probate proceedings have been had, no personal representative shall acquire title to, or the right to possession of, any personal property owned by the decedent at the time of his death, notwithstanding that probate or administration proceedings have been had in some other state or country. None of the provisions of the two preceding sentences shall apply to or affect any will or any rights under any will admitted to probate in any other state or country prior to June 12, (2) In any collateral suit or controversy relating to property, real or personal, thereby devised or bequeathed, the probate of a will in Florida, unless revoked or reversed upon appeal, shall be conclusive of the due execution of the will by a competent testator of his own free will and of the fact that such will, at the date of the testator's death, was unrevoked. History.- 63, ch , 1933; CGL 1936 Supp, 5541(62); 1, ch , 1939 ; cf , Discovery of later will , Effect of prior foreign probate Will void as affecting surviving divorced spouse.-all wills offered for and admitted to probate subsequent to June 11, 1951, made by husband or wife who have been divorced from each other subsequent to the date of said will, shall be made null and void by means of said divorce insofar as said will affects the surviving divorced spouse. History.-Comp. 1, ch , Establishment and probate of lost or destroyed will.- (1) The establishment and probate of a lost or destroyed will shall be in one proceeding. Upon the probate of such a will, the county judge shall, as a part of his order admitting same to probate, recite, and thereby establish and preserve, the full and precise terms and provisions of such will. (2) The petition for probate of a lost or destroyed will shall contain a copy of such will or the substance thereof. The testimony of each witness must be reduced to writing, signed by him and filed, and shall be evidence in any contest of the will if the witness has died or removed from the state.

31 2565 FLORIDA PROBATE LAW, SECOND PART (3) No probate of any lost or destroyed will shall be granted until citation has issued and been served upon those who, but for such will, would be entitled to the property thereby bequeathed or devised; or unless clearly and distinctly proved by the testimony of at least two disinterested witnesses, a correct copy being the equivalent of one witness. History.- 64, ch , 1933; CGL 1936 Supp. 5541(63); am. 2, c h , cf.- 71!2.32 Discovery of later will Notice of probate.- (!) Upon the admission of a will to probate, the personal representative or any other interested party may, at his option, file in the office of the county judge a sworn statement containing the name and residence or post-office address of each legatee or devisee named in the will and of the surviving spouse and each heir at law of the decedent. (2) Upon the filing thereof, the county judge shall cause to be duly mailed, postage prepaid, with the return address of the county judge upon each envelope, to each person named in said statement, a notice of the probate of said will. A certificate of such mailing shall be filed by the county judge. (3) Thereupon, the county judge shall cause to be published once a week for four consecutive weeks in a newspaper published in the county, four publications being sufficient, a notice addressed to all persons interested, in substantially the following form : In the County Judge's Court County, Florida. Estate of..., Deceased. The State of Florida to all persons interested in the estate of said decedent: You are hereby notified that a written instrument purporting to be the last will and testament of said decedent has been admitted to probate in said court. You are hereby commanded within six calendar months from the date of the first publication of this notice to appear in said court and show cause, if any you can, why the action of said court in admitting said will to probate should not stand unrevoked. County Judge County, Florida. By " " ~ Clerk First publication on ( 4) The expense of mailing and publication shall be advanced to the county judge by the moving party and shall be taxed as costs of administration, payable out of the assets of the estate. (5) No person who has been served with citation upon the petition for probate or who has waived such citation need be notified hereunder; but such person shall be bound by the order admitting the will to probate, unless the probate is successfully appealed from. Any person may likewise waive notice of probate by an instrument in writing filed in the office of the county judge and such waiver shall bar any action for revocation of probate. ( 6) If no petition for revocation of probate is filed within the time limited aforesaid, the order admitting such will to probate shall be conclusive without further order, upon proof of publication of notice of probate's being filed and recorded in the office of the county judge. No petition for revocation of probate may be maintained unless filed within said six-month period. History.- 65, ch , 1933; CGL 1936 Supp. 5541(64); a m. 2, ch , Caveat; proceedings.- (!) If any heir or distributee of the estate of a decedent is apprehensive that a will may be admitted to probate without his knowledge, he may file a caveat in the office of the county judge. (2) No caveat shall be effective unless it contains a statement of the interest of the caveator in the estate, the name and specific residence address of the caveator, and, if the caveator is a nonresident of the county, the additional name and specific residence address of some person residing in the county, designated as the agent of the caveator, upon whom service of citation may be made. After the filing of same, the county judge shall not admit the will of such decedent to probate without the issuance of a citation to the caveator. (3) Such citation shall be served either upon the caveator or upon his agent named in the caveat for service of citation, whichever is stated to be a resident of the county. Upon a return that after diligent search the caveator, if he is a resident, or his resident agent, if the caveator is a nonresident, cannot be found, the county judge may proceed to admit the will to probate upon the expiration of fifteen days after mailing copies _ of the citation and petition to the caveator and to his agent, if any is named in the caveat, at the respective residence addresses given. Certificate of mailing shall be filed in such instances by the county judge. ( 4) Upon the return day of the citation, the caveator may answer the petition for probate. In his answer he shall therein set forth his interest in the estate and the facts constituting the grounds upon which probate of the will is opposed ; and the court shall, upon the issue made and the proof adduced, probate the will or deny probate, according to the law and justice of the case.. _ (5) Unless a will is offered for probate,with~n thirty days after the filing of a caveat, letters of administration may be granted to those entitled to administer. Should a will be offered for probate after such letters of administration have been granted, citation shall also issue upon the petition to th"e administrator. History.- 66, ch , 1933; CGL 1936 Supp. 5541(65); Revocation of probate.- (!) Any heir or distributee of the estate of a decedent, including legatees or devisees under a prior will, except those who' have been served with citation before probate or who are barred under , may, at any time before final dis- charge of the personal representative, make ap- plication by petition to the court in which theprobate of any will may have been granftetl. for-

32 FLORIDA PROBATE LAW, SECOND PART 2566 revocation of such probate. The petition shall set forth the interest of the petitioner in such estate and the facts constituting the grounds upon which revocation is demanded. (2) Citation to appear and defend shall be served upon the personal representative; and the county judge shall, upon the issues made and the proof adduced, confirm or revoke the probate according to the law and justice of the case. (3) Any legatee, devisee or other person interested in the estate shall, upon application, be permitted to appear and prosecute or defend as though he were a party to the proceedings. ( 4) Pending the determination of any issue made for revocation of probate, the personal representative shall proceed with the administration of the estate as if no such issue had been made, except that no distribution may be made to legatees or devisees in contravention of the rights of those who, but for such will, would be entitled to the property disposed of thereby. (5) Revocation of probate of a will shall not affect or impair the title to the property, real or personal, theretofore purchased in good faith for value from the executor or administrator with the will annexed. Hlstory.- 67, ch , 1933 ; CGL 1936 Supp. 6541(66) ; Burden of proof in contests.-in all proceedings contesting the validity of a purported will, whether before or after such will is admitted to probate,' the burden of proof, in the first instance, shall be upon the proponent thereof to establish, prima facie, the formal execution and attestation thereof, whereupon the burden of proof shall shift to the contestant to establish the facts constituting the grounds upon which the probate of such purported will is opposed or revocation thereof is sought. Hlstory.- 68, ch , 1933; CGL 1936 Supp. 6541(67); Discovery of later will.-upon the discovery, pending probate proceedings, of a later will or codicil expressly revoking the probated will or impliedly revoking the same in whole or in part, any person interested may by petition offer same for probate. The proceedings shall be, as nearly as practicable, similar to those for revocation of probate generally. Hlstory.- 69, ch , 1933; CGL 1936 Supp. 5541(68); Discovery of will after settlement of e.state.- -(1) Upon the discovery, after the termination of administration or probate proceedings and the discharge of the personal representative, of an unknown will or a later will or codicil expressly revoking the probated will or impliedly revoking the same in whole or in part, any one or more persons interested may, by bill in chancery, impress a trust upon the funds or property rece~ved by an heir, legatee or distributee in the administration or probate proceedings recently terminated which, because of the newly discovered will. such recipient is not justly entitled to retain. All persons interested under the newly discovered will and all heirs, legatees or distributees under the former proceedings whose rights are affected by such new will may be made parties to one proceeding. A receiver of any or all of the property may be appointed. It shall be no objection to the bill that it is multifarious. Such heir, legatee or distributee shall be held to account, not for the value of any such property spent or consumed by him, but only for the property actually remaining in his hands in its original form or as it may be traced into other form or property. (2) Such proceedings shall neither invalidate any acts of the personal representatives theretofore performed in good faith nor affect the rights of bona fide purchasers for value of any of the property of the estate; nor shall any such proceeding be brought after three years from the date of the discharge of the personal representa.:. tive. Hlstory.- 70, ch , 1933 ; CGL 1936 Supp. 5541(69); Probate of will written in foreign language.- ( I) The petition for the probate of a will written in a foreign language shall contain a true and complete English translation of the will. No probate of any will written in a foreign language shall be granted without citation to the surviving spouse, heirs at law of the testator and all beneficiaries under the will. (2) Upon the probate of such a will, the county judge shall, in his order admitting the will to probate, establish the correct translation thereof. If possible, the original will shall also be recorded by the county judge in its original form. Any person affected may at any time and from time to time, during the administration of the estate, by petition and by the citation of all interested persons, have the correctness of the translation or of any portion thereof redetermined. No executor shall be held responsible for compliance at the time being with the English translation of the will as then established by the county judge's order. Hlstory.- 71, ch , 1933; CGL 1936 Supp. 6541(70); Probate of will of resident after foreign probate.- (1) In the event that the will of any person who heretofore has died a resident of this state or of any person who hereafter dies a resident of this state is, through inadvertence, error or omission, admitted to probate in any other state or country prior to the probate thereof in this state, the same may be established and admitted to probate in this state if the original thereof might have been admitted to probate in this state, in like manner as though said will had been lost or destroyed, and the proceedings for the establishment and probate thereof shall, in all matters, be as nearly as possible similar to like proceedings in connection with the establishment and probate of lost or destroyed wills. (2) An exemplified or a certified copy of such will, of the foreign order of probate and of the letters, if any, issued thereon, shall be filed in the office of the county judge where application is made for probate of such will, in lieu of the original will; and the same shall be prima facie

33 2567 FLORIDA PROBATE LAW, SECOND PART evidence of its execution and admission to foreign probate. (3) Any person cited may oppose the probate {)f such will as in the case of the original probate {)f a will in this state. Any person interested adversely may apply for the revocation of the probate of such will in this state as in the case of the original probate of a will in this state. History.- 72, ch , 1933; 2, ch , 1935; CGL 1936 Supp (71); 1, ch , 1939; am. 2, ch , Foreign probate prior to local probate of estate of resident decedent prohibited.- ( I) From and after the effective date of this section no person or corporation shall procure,. or aid, abet or assist another in procuring, the probate of the estate or will of a person who heretofore has died a resident of this state or of a person who hereafter dies a resident of this state, in any other state or country prior to the probate of such estate or will in this state. (2) Any person or corporation who shall knowingly and intentionally procure, or aid, abet {)r assist another in procuring, the probate of the estate or a will of a person who heretofore has died a resident of this state or of a person who hereafter dies a resident of 'this state, in any {)ther state or country prior to probate of such estate or will in this state, shall be guilty of a misdemeanor, and upon conviction therefor, shall be subject to a fine not exceeding five thousand dollars. (3) This section shall not apply to any such probate proceedings or anything heretofore or hereafter done in or in connection with any such probate proceedings instituted in any other state or country prior to June 12, Hiatory.- U-3, ch , 1939; CGL 1940 Supp. 5541(71A), 1!135 (38) ; Probate of notarial will.- (1) When a copy of a notarial will in the possession of a notary entitled to the custody there {)f, in a foreign state or country (the laws of which state or country require that such will remain in the custody of such notary), duly authenticated by such notary, whose official position, signature and seal of office are further authentieated by an American consul, vice-consul or other American consular officer within whose jurisdiction such notary may be a resident, is presented by the executor or other person interested to tht> county judge having jurisdiction as prescribed by this law, the same may be admitted to probate if the original might have been admitted to probate in this state. (2) Such duly authenticated copy shall be filed in the office of the county judge where application is made for probate thereof in lieu of the original will ; and the same shall be prima facie evidence of its purported execution and of the facts stated in the certificate in compliance with the preceding subsection. (3) Any person cited may oppose the probate of such foreign will as in the case of the original probate of a will in this state. Any person intere.lited adversely may a,dply for revocation of probate o:t' such foreign will as in the case of the original probate of a will in this state. All proceedings in connection with any such foreign will shall in all matters be, as nearly as possible, similar to like proceedings in connection with wills originally probated in this state. History.- 73, ch , 1933 ; CGL 1936 Supp. 5541(72); Effect of probate of will after foreign probate and of notarial will.-the probate in this state of a will admitted to probate in any foreign state or country or of a notarial will shall have the same force and effect as though the original thereof had been probated in this state. History.- 74, ch , 1933 ; 3, ch , 1935; CGL 1936 Supp. 5541(73); cf , Ancillary Administration Time of proof of nuncupative will. No testimony shall be received to prove any nuncupative will after three months from the speaking of such testamentary words, unless the said testamentary words or the substance thereof have been reduced to writing and sworn to by the three witnesses to the will, before an officer authorized to administer oaths, within six days from the speaking of said will. History.- 75, ch , 1933; CGL 1936 Supp. 5541(74); Probate of nuncupative will.- (1) No probate of any nuncupative will shall be granted until citation has issued and has been served upon those who, but for such will, would be entitled to the property thereby bequeathed. (2) Upon the probate of a nuncupative will, the county judge shall, as a part of his order admitting same to probate, recite, and thereby establish and preserve, the full and precise terms and provisions of such will. History.- 76, ch , 1933; CGL 1936 Supp. 5541(75); Construction of will by probate court. -The county judge in whose court the will has been probated shall have jurisdiction to entertain direct proceedings for the construction of such will or any part thereof. Such proceedings for construction shall be by petition filed by the executor or by any other person interested in the will, with citation and service as required by this law. History.- 77, ch , 1933; CGL 1936 Supp. 5541(76); Construction of wills by courts of equity.-courts of equity shall have concurrent jurisdiction with the county judges in the construction of wills or of any parts thereof, but the court first obtaining jurisdiction for construction shall retain the same. No petition or bill for the construction of a will may be maintained in any court until the will has first been probated. History.- 78, ch , 1933; CGL 1936 Supp. 5541(77) ' Petition for letters of administra tion.- (1) Every petition for letter.s of administration shall be sworn to by the petitioner, his agent or his attorney and shall contain statements to the best of petitioner's information and belief,

34 FLORIDA PROBATE LAW, SECOND PART 2568 L showing the domicile of the decedent at the time of his death, the date of his death, the approximate value of the estate of the decedent, the residence and post-office address of the petitioner, and a statement that the decedent died intestate, and, if the decedent was a nonresident, whether there is a domiciliary administration pending or not, and if so, the name and post-office address of the domiciliary personal representative. (2) Every such petition shall contain either a statement of the names, ages and residences of the surviving spouse and heirs at law of the decedent and their respective relationships to decedent, or averments showing that reasonable search has been made and that such information cannot be ascertained without delay which would adversely affect the estate. (3) No citation need be served or notice given of the granting of letters of administration when it appears by the petition that the petitioner is entitled to preference of appointment; but, before letters shall be granted to any person who is not entitled to preference, citation shall issue to all known persons qualified to act as administrator and entitled to preference over the person applying, unless those entitled to preference waive same in writing. Hlstory.- 79, ch , 1933 ; CGL 1936 Supp (22); am. 2, ch , cf , Petition f or probate of will , P etition f or a dministration of estate of person believed d ead Preference in appointment of admin istrator.-in the granting of letters of administration, the following preference shall be observed: (1) The surviving spouse shall first be entitled to letters. (2) The next of kin, at the time of the death of the decedent, shall next be entitled to letters. (3) If there are several next of kin, equally near in degree, the one selected in writing by a majority of them who are sui juris shall be appointed. If no such selection is thus made, the county judge may exercise his discretion in selecting the one best qualified for the office. ( 4) If no application is made by the next of kin, the county judge in his discretion, may appoint some capable person, but no person may be appointed under this subsection who works for such county judge or who holds public office under such county judge, nor any person who is employed by or holds office under --: :. a.:1 y ""ju-dge exercising probate..jurisdiction. (5) Persons entitled to an estate may select a disinterested person as administrator; and if such person is otherwise qualified, he shall be appointed. (6) After letters of administration have been granted, if any person who is entitled to preference over the person appointed and upon whom citation was not served and who has not waived his preference seeks the appointment, letters granted may be revoked, and such person may have letters of administration granted to him after citation and hearing upon his application. ('i)" After letters of administration have been granted, if any will is produced and probated, the aforesaid letters shall be revoked and letters testamentary shall be granted to the executor of said will, or letters of administration cum testamento annexo shall be granted, if there is no executor ready and willing to qualify, preference being given to the person, if otherwise qualified, who is selected by the persons beneficially interested in the estate. No such will shall be probated without citation to the administrator. H lstory.- 80, ch , 1933 ; CGL 1936 Supp. 5541(23) ; a m. 2, ch , 1945 ; am. 1, ch , Individuals who may be appointed personal representatives; resident agents.- (1) Any person sui juris who is a citizen of the United States of America and a resident of Florida at the time of the death of the person whose estate he seeks to administer is qualified to act as personal representative in Florida. However, a person who has been convicted of a felony or who, from sickness, intemperance or want of understanding is incompetent to discharge the duties of a personal representative, is not qualified to act as personal representative. (2) If a resident personal representative removes his residence from the State of Florida, he shall have his new place of residence and postoffice address recorded in the office of the county judge of the county in which the administration is pending, and he shall designate some resident of said county as his agent or attorney for the service of process, whose name, residence and post-office address shall also be likewise recorded. Such designation, in whatever form it may be, shall be taken to constitute the consent of the person so designating that service of any process upon the designated agent OJ' attorney shall be sufficient to bind the person so designating in any suit or action against such personal representative, either in his representative capacity or personally; provided, that such personal action must have accrued in the administration of such estate. Such designation must be in writing and must be filed in the office of the county judge. Hlstory.- 81, ch , 1933 ; CGL 1936 Supp. 6541(24); a m. 2, ch , 1945 ; 6, ch , cf , Removal of p ersonal representative Minor not qualified.- (1) No person who is less than twenty-one years of age shall be qualified or permitted to act as an executor or administrator. If a minor is named as executor in any last will and testament, letters testamentary shall be granted to the other executor or executors, if any is named in said will; if none other is named, letters of administration with the will annexed shall be granted to the next of kin or to such other person as the judge shall appoint according to the provisions of this law, until said minor comes of full age, when he may have letters testamentary as tht> executor if otherwise qualified. In such case, tht> letters of administration, if any have been granted, shall be revoked, and the said administrator shall render a true and faithful account.-.f his administration to the county judge's court and surrender the estate to the said executor.

35 2569 FLORIDA PROBATE LAW, SECOND PART (2) The executor in such cases shall be entitled to all rights and proceedings provided for in this law for compelling an accounting from removed personal representatives. History.- 82, ch , 1933; CGL 1936 Supp, 5541(25); Nonresidents.- (!) A person who is not an actual bona fide resident of the State of Florida cannot qualify as a personal representative of an estate in Florida, unless such person is a legally adopted child of the decendent and adoptive parent or is related by lineal consanguinity to the decedent or is a spouse or a brother, sister, uncle, aunt, nephew or niece of the decedent. However, any person who has qualified in Florida as a personal representative prior to the effective date of this law may continue to serve in such capacity. (2) Before any nonresident of Florida shall be issued letters upon any estate, such nonresident shall have his residence and postoffice address recorded in the office of the county judge of the cou~ty in which the administration is pending, and shall designate some resident of said county as his agent or attorney for the service of process, whose name, residence, and postoffice address shall also be likewise recorded. Such designation, in whatever form it may be, shall be taken to constitute the consent of the person so designating that service of any process upon the designated agent or attorney shall be sufficient to bind the' person so designating in any suit or action against such personal representative, either in his representative capacity or personally, provided, that such personal action must have accrued in the administration of such estate. Such designation must be in writing and must be filed in the office of the county judge. (3) Any qualified personal representative appointed after May 27, 1947, who becomes disqualified to act as such after his appointment immediately thereupon shall file, in the court where his letters were granted, his petition for resignation pursuant to the terms and provisions of , and immediately thereupon shall present said petition to said court and do any and all other things necessary or proper to procure an order approving such resignation. (4) Any person who fails to comply with or who acts or continues to act in violation of any of the terms and provisions of this section shall be deemed guilty of a misdemeanor and, on conviction, be fined not to exceed one hundred dollars for each day his appointment as such personal representative remains in effect contrary to any of the terms and provisions of this section. Hlstory.- 83, ch , 1933; 1, ch , 1939; CGL 1940 Supp. 5541(26), 8135(38-a); am. 2, ch , 1945; 7, ch , 1945; am. 1, ch , Married woman.-a married woman may act as personal representative or curator without the consent of her husband. Hlstory.- 84, ch , 1933; CGL 1936 Supp, 5541(27); Trust companies and other corpora tions.- (1) All trust companies incorporated under the laws of the State of Florida and all national banking associations authorized and qualified to exercise fiduciary powers in Florida shall be entitled to act as personal representatives and curators of estates under the laws of the State of Florida. (2) When any such corporation has been named as an executor in a will and thereafter sells its business and assets to, or consolidates or merges with, or is in any manner provided by law succeeded by, another such corporation, the successor corporation may, upon the death of the testator, qualify, and the county judge may issue letters to the successor corporation unless the will provides otherwise. (3) A corporation authorized and qualified to act as a personal representative resulting from merger or consolidation shall, upon filing proof thereof in the county judge's court and without a new appointment, succeed to the rights and duties of all predecessor corporations as the personal representatives of estates. A purchase of substantially all the assets and the assumption of substantially all the liabilities shall be deemed a merger for the purpose of thi.s section. Hlstory.- 85, ch , 1933; CGL 1936 Supp. 5541(28); am. 2, ch , 1945; am. 7, ch , Joint executors and administrators. If several executors are named in a will, one or more qualifying shall be entitled to execute all the powers and trusts confided to all in the will unless especially prohibited by the will; if more than one qualify, all must join in discharging the functions of executor unless the county judge gives special authority to one or more of such executors to discharge such functions. Each executor shall be responsible only for his own acts, unless by his own act or gross negligence he has enabled or permitted his coexecutor to waste the estate. The foregoing shall likewise apply to joint administrators. Hlstory.- 86, ch , 1933; CGL 1936 Supp. 5541(29); am. 2, ch , 194fi Effect of appointment of debtor or creditor.-the appointment of a debtor or of a creditor as personal representative shall not. either in law or in equity, be construed to operate as a release or extinguishment of the debt due to or by the decedent. This section shall not be construed to prevent a testator from releasing a debtor by last will and testament. Hlstory.- 87, ch , 1933; CGL 1936 Supp. 6541(30); Succession of administration.-n o executor of an executor shall, as such, be authorized to administer the estate of the first testator; but, on the death of the sole or surviving executor, the county judge shall appoint an administrator de bonis non to complete the administration of such estate. Hlstory.- 88, ch , 1933; CGL 1936 Supp. 6541(31) ~ am. 2,.ch , 1946.

36 FLORIDA PROBATE LAW, SECOND PART Executor de son tort.-n o person shall be liable to a creditor of a decedent as executor de son tort, but any person taking, converting or intermeddling with the property of a decedent shall be liable to the personal representative or curator, when appointed, for the value of all the property so taken or converted and for all damages to the estate of the deceased caused by his wrongful action; but this section shall not be construed to prevent a creditor of a deceased person from suing anyone in possession of property fraudently conveyed by such deceased person, for the purpose of setting aside such fraudulent conveyance. History.- 89, ch , 1933; CGL 1936 Supp. 5541(141); Guardian ad litem.-whenever a legal guardian is appointed or qualified in this state for any infant or person non compos mentis who is interested in the estate of a decedent, such guardian shall represent his ward in all proceedings affecting such estate in the county judge's court, except as to proceedings in which the guardian is interested in his own right. The county judge shall, without notice, appoint a guardian ad litem to represent any infant or person non compos mentis where there is no legal guardian appointed or qualified in this state, or where such guardian is interested in his own right, and to represent any unknown person interested in the estate. A guardian ad litem shall, upon appointment,.make and file an oath to discharge his duties faithfully. Whenever a guardian ad litem is appointed, no process need be served upon him, but he shall appear and defend as directed by the county judge. - Hlstory.- 90, ch , 1933; CGL 1936 Supp. 5541(142); am. 2, ch ,, Administrator ad litem.-whenever, in any proceeding before the county judge or in equity in the circuit court, it is necessary that the estate of a deceased person be represented and when there is no personal representative of such estate or when the personal representative is interested adversely to said estate or in such proceeding is enforcing his own debt or claim against the estate, the court in which the proceeding is pending shall appoint an adminstrator ad litem without bond for that particular proceeding. Whenever the facts authorizing such appointment appear of record or are otherwise made known to the court, the court shall without notice appoint such administrator ad litem. The administrator ad litem shall, upon appointment, make and file an oath to discharge his duties faithfully, and said proceeding shall then be further maintained, prosecuted or defended, insofar as said estate is concerned, by said administrator ad litem and in his name as such. History.- 91, ch , 1933; CGL 1936 Supp. 5541(32); Recovery of judgment; proceedings. -Whenever any such administrator ad litem shall recover any decree or other relief, it shall be enforced as other decrees, except that execucution which shall issue shall be in favor of the administrator ad litem for the use of the estate. and the money collected shall be paid to the personal representative of the estate, or, if there is none, then to the county judge when the proceeding is before him, or into the registry of the circuit court when the proceeding is in that court; and said funds, if paid into court, shall be held to await the further order of the court. Hlstory.- 92, ch , 1933; CGL 1936 Supp. 5541(33); cf , Enforcement of judgments. 732.?7 Judgment in favor of personal representahve.-if the personal representative is an adverse party and in a proceeding in equity recovers a judgment or decree against the administrator ad litem, the court may grant him such relief as he may be lawfully entitled to under the provisions of this law. History.- 93, ch , 1933; 4, ch , 1935; CGL 1936 Supp (139) ; Compensation of administrator ad litem.-an administrator ad litem shall be allowed such compensation for his services as th~ judge in whose court the proceeding is pending deems just and reasonable, and the same shall be taxed as costs in the case unless the court thinks it equitable that the same should be paid out of the assets of the estate without reference to prevailing or losing parties in the cause. History.- 94, ch , 1933; CGL 1938 Supp. 6541(34); am. 2, ch , 1945; am. 10, ch , cf , Expenses and compensation of personal representatives Oath of personal representative. Before granting letters the county judge shall require the personal representative to make and file an oath in writing that he will faithfully administer the estate of the decedent, pay debts as far as the assets of the decedent will permit, make distribution of the estate according to law, and render due accounts of his administration. History.- 95, ch , 1933; CGL 1936 Supp. 5541(35); Oaths and affidavits.-oaths, verifications, affirmations ana affidavits required by law in probate proceedings may be made, either within or without the state, before any officer authorized by the Jaws of this state to administer oaths. Hlstory.- 96, ch , 1933; CGL 1936 Supp. 5541(78); Bond of personal representative. (!) Every person to whom letters testamentary or of administration are directed to issue (pnless the testator waived such requirement) shall be required by the judge, before such letters issue, to execute and file in his office a bond with two or more sufficient sureties, or an authorized surety company as surety, to be approved by the county judge, in such penal sum as the county judge may deem sufficient, respect being had to the value of the estate. Said bond shall be payable to the governor and his successo~s in office, conditioned to perform faithfully all duties as such personal representative according to law. In form the bond must be joint and several. (2) The requirements of this section shall

37 2571 FLORIDA PROBATE LAW, SECOND PART not be applicable to banks and trust companies authorized by law to act as personal representatives. History.- 97, ch , 1933; 5, ch , 1935; CGL 1936 Supp. 5541(36); ct , Additional bond 9pon sale of assets ~nd by a surety company.-any surety company authorized to do business in this state may become surety upon the bonds of personal representatives, and in such cases there need be only one surety upon such bonds. Hlstory.- 98, ch , 1933; CGL 1936 Supp. 5541(37); am.. 2, ch , Bond required of executor.-when any person interested in the estate of a decedent files with the county judge of the county wherein a last will is admitted to probate a petition, from which petition and the evidence adduced thereon it is made to appear to the county judge that there is reasonable ground to apprehend that any such executor holding the assets of such decedent is mismanaging, wasting or diverting, or will mismanage, waste or divert said assets from their proper administration, the county judge shall require such executor to give a bond with sufficient security conditioned as the law directs; and this bond may be required although the will may exempt said executor from giving the bond. The executor shall have such notice as the county judge may prescribe and the right to appear and defend the proceedings. Hlstory.- 99, ch , 1933; CGL 1936 Supp. 5541(38); Insufficiency of bond.-when any person interested in the estate of a decedent files with the county judge of the county wherein the administration is pending a petition, from which petition and evidence adduced thereon it is made to appear to the county judge that the sureties on any bond given by a personal representative or curator are insolvent or insufficient or that the bond is insufficient in amount, said county judge shall enter an order requiring additional sureties or an additional bond, as the circumstances may require. Hlstory,- 100, ch , 1933; CGL 1936 Supp. 5541(39); Liability of surety.-no surety for any personal representative or curator shall be charged beyond the assets of an estate by reason of any omission or mistake in pleading or of false pleading of such executor, administrator or curator. Hlotory.- 101, ch , 1933; CGL 1936 Supp. 6541(40); a.m. 2, ch , County judge to act on. his own motion.-whenever it is known to the county judge of a county where administration of any estate has been granted that cause exists which would authorize him upon the application of others to require a personal representative or curator to give bond or to give additional surety, said judge shall, of his own motion, without the application of any other person, make such orders as he may deem proper. History.- 102, ch , 1933; CGL 1936 Supp. 5541(41); Informality of bond.-no bond executed by any personal representative or curator shall be void or invalid on account of any informality in it, or of informality or illegality in the appointment of such fiduciary. Such bond shall have the same force and effect as if the appointment had been legally made and the bond executed in proper form. History.- 103, ch , 1933; CG L 1936 Supp, 5541 ( 42) ; Release of surety.- (1) The surety or sureties, or the personal representative of any surety or sureties, upon the bond of any executor, administrator or curator, taken under the provisions of this law, shall be entitled as a matter of right to be released from future liability upon such bond; upon application to the county judge therefor and the giving of five days' written notice of application to the principal named in the bond. (2) Pending the hearing of such application, the county judge may, in his discretion, restrain the principal from acting in his representative capacity, except to preserve the estate. (3) Upon the hearing, the county judge shall enter an order prescribing the terms and amount of the new bond for such fiduciary and the date when same shall be filed. If the principal fails to give the new bond, he shall be removed at once and further proceedings be had as in cases of removal. (4) The original surety or sureties shall be liable for all acts of the fiduciary until he has given the new bond and after the giving of the new bond shall remain liable for all the fiduciary's acts to the time of the filing and approval of the new bond. The new surety shall be liable for the fiduciary's acts only from and after the filing and approval of the new bond. The costs of the proceeding shall be paid by the surety applying to be released. Hlotory.- 104, ch , 1988; CGL 1986 Supp. 65fl(oi8); am. 2, ch ,

38 FLORIDA PROBATE LAW, THIRD PART Personal representative to take possession of entire estate and application of estate income. Actions relating to real estate. Inventory. Inventories. Duties of appraisers. Inventories and appraisals as evidence. Compensation of appraisers. Continuance of business of decedent. Duty to assign dower. Petition for assignment. Petition by widow for assignment of dower. Proceedings on the petition. Commissioners. Final judgment. Notice to creditors. Form and manner of presenting claims; limitation. Amendment of claims. Payment of and objection to claims. Execution and levies prohibited. Order of payment of expenses of administration and claims against the estate; family allowance. Compromise and settlement. Claims undisposed of after three years barred. Sale pursuant to will. Sales where no power conferred. Sale on petition of interested persons. Sale of real property when widow survives. When notice of sale required Personal representative to take possession of entire estate and application of es- 1tate income.-. (1) The personal representative shall take possession of the estate of a decedent, real and personal (except homestead), and the rents, in. come, issues and profits therefrom whether accruing before or after the death of the decedent, and of the proceeds arising from the sale, lease or ' mortgage of the same or any part thereof; All such property and the rents, income, issues and!j?roftts therefrom shall be as sets in the' hands of ''the personal representative for the -payment :O'f legacies,. debts, :family allowance; estate and m- 'h~rithhce takes; claims; charges and expenses of ; a:d#iinistra:f1bnj~nd to :enforce contribution and 'to (ij qualize advancement andi for : distribution., (2). Tht:! net irih:ime; earned by the;-assets of the estate after the death of t he testatot; a nti ;prior to the :distribution df ~~e e~~i:(te, a n \'I; 't.j-ot used for the purposes set f orth m subsection (1) above shall in the absence of specific provision in the will to the contrary be paid a nd applied as follows : (a) To either specific or demonstrative legatees and devisees the net income from the property specific~lly or demonstrati_vely bequeathed and devised to them respe.ctively; (b) To general' legatees, legal mterest on their respective legacies from the time fixed by the county judge in an order of distribution for the payment thereof, or if no date is fixed Ly the county judge, from and after thirty days CHAPTER 733 FLORIDA PROBATE LAW, THIRD PART Hearing on application to sell Order of sale Additional bond upon sale Sales upon terms. < When personal representative may purchase Conveyances pursuant to contracts of decedent Sale of contract to purchase Sale of real property subject to contract to purchase Sale of real property subject to mortgage Sale of stocks and bonds Interest in partnership Lease of real property Borrowing money and mortgaging property Power of personal representative to execute instruments Purchaser protected Limitation in favor of purchaser from personal representative Annual returns Contents of returns Objection to returns Trial of objections Audit of accounts not objected to Recording settlement Order requiring returns; contempt of court Compulsory settlements Production of assets Devastavit Who may suggest devastavit Waiver of statute of limitations, internal revenue matters. from the entry of such order of distribution, except that where the general legacy provides that the net income therefrom shall be paid to or for the benefit of or accumulated for one or more beneficiaries, then such general legate'e or legatees shall be entitled to that proportion of the net income which the general legacy at appraised value bears tq the appraised value of the entire,probate estate, excluding specific and demonstrative legacies and devises, provided,. however, that the appraised.value shall be the court a ppraisal unless a United States estate tax return ; is '' r~q.uir!'ld, 'to ' be,f;iled,, in which event the appraised valqe shall be the val\.ie final'iy determined for suc.h tax ~purposes. ( ~) :', To tpe,,_rjsi4lia~y. Iega~ ~e~ ' afid ' d.e:~i, ~ ees, a ll th:e rest. ai;ld r ~m,a li1~er of 'the, net m~qm,e 'earned a ft et ~the death of the testator rli)~ ;Jte,~~in.ab,Qye apphed..,..,...,...,,.. (3). If any part of the e5.tate.,is :beque'athe.d or devised to a trustee the proportion of the net income applied to such bequest or devise shall be paid by the executor to such trustee and shall be held and distributed by the trustee as income. ( 4) This section shall apply to estates of all decedents dying on or after July 1, History.- 105, ch , 1933: CGL 1936 Supp, 5541(87); ~ 1, 2, ch ; 3. ch , 1945; am. 1, ch , cf , Advancements Actions relating to real estate.-personal representatives may bring and maintain

39 2573 FLORIDA PROBATE LAW, THIRD PART actions or suits for the possession or recovery of real property of the estate, for the purpose of quieting the title thereto, for waste thereof and trespass thereon, and against cotenants of the decedent in real property for the partition thereof. Heirs and devisees of the decedent may themselves, or jointly with the personal representative, bring and maintain actions or suits for the possession or recovery of real property of the estate or for the purpose of quieting title thereto against anyone except the personal representative. In any suit to quiet title brought by an heir or devisee, the possession of the personal representative shall, for the purpose of such suit, be deemed the possession of the heir or devisee. In all actions or suits involving the title to real property, against an estate for the possession or recovery of real property or for the purpose of quieting title thereto, the personal representative and the heirs or devisees of such property shall be made parties. History.- 106, ch , 1933; CGL 1936 Supp. 5541(88): cf , Survival of actions , Actions by or against foreign representatives Inventory.-The personal representative shall file a complete inventory of the assets of the estate of the decedent within sixty - days from the date of the granting of letters unless the time is extended by order of the county judge. History.- 107, ch , 1933; CGL 1936 Supp. 5541(79); cf , Inventories; interests In partnerships Inventories.-The county judge on granting letters testamentary or of administration shall appoint two or more competent persons not of kin to the deceased as appraisers of the property of the decedent, and said appraisers shall take oath truly and justly to view and appraise, according to the best of their ability, all the property of the decedent which to them shall be produced or which shall come to their knowledge. It shall not be necessary to appoint appraisers or to have any appraisement whenever the county judge dispenses with the appraisal of an estate. History.- 108, ch , 1933; CGL 1936 Supp. 5541(80); am. 3, c h , 1945; 8, ch , Duties of appraisers.-on the appointment of the appraisers they shall forthwith proceed to appraise all the property which has been produced to them and which has come to their knowledge and file the appraisal in the office of the county judge; and the appraisal' thereupon made, if signed by the personal representative, may be considered as an inventory of such part of the estate. HistoQ.- 109, ch , 1933; CGL 1936 Supp. 6541(81); Inventories -and appraisals as evi. dence.-inventories and appraisals, or certified copies thereof, may be given in evidence in any suit by or against the. personal representative; however, they shall not be conclusive, for or against him, as to the real value of the estate or ariy part thereof, or as to whether it or any part thereof was sold bona fide for more or less than the appraised amount. History.- 110, ch , 1933; CGL 1936 Supp. 6541(82); Compensation of appraisers.-each appraiser shall be entitled to receive for his services reasonable compensation, to be fixed by the county judge and paid by the personal representative. Application therefor shall be accompanied by an affidavit of each appraiser showing the services rendered by him as appraiser and the reasonable value thereof, and such application may be heard upon such notice as the county judge shall fix. History.- 111, ch , 1933; CGL 1936 Supp. 5541(83); Continuance of business of de cedent.- (1) In every case where a person has died while engaged in any trade or business, the county judge may authorize the curator or the personal representative of the estate of such deceased person to continue and carry on such trade or business for a reasonable time under the supervision of the county judge and require such security or additional security of such curator or personal representative as the county judge may deem proper. (2) Before any order shall be made authorizing the continuance of the trade or business of the deceased person, the curator or the personal representative of such estate, by a verified petition, shall affirmatively and clearly allege and set forth sufficient facts to make it appear to the county judge that, to prevent great loss to the estate, it is necessary to continue such trade or business of the deceased. (3) The order of the county judge authorizing the continuance of such trade or business of the deceased may empower the curator or the personal representative of such estate, in his representative capacity, to make such contracts as may be necessary to carry on and conduct such trade or business and to incur debts and to pay out money in tlie proper conduct of such trade or business, and the net profits of such trade or business only shall be assets of the said estate. ( 4) In the conduct of such trade or business the curator or the personal representative shall keep full and accurate accounts of all receipts and expenditures, he shall make monthly reports thereof to the county judge, and he shall be allowed such compensation as the county judge may deem reasonable for his services in conducting such trade or business. (5) Any person interested in the said estatp at any time may apply to the county judge of the county where such order has been granted for an order requiring the curator or the -personal representative of such estate to discontinue and to wind up the said trade or business, and upon due notice to the said curator or personal representative, such application shall be heard, and the county judge shall make such order thereon as he deems.for the best interest of said estate. History.- 112, ch , 1933; CGL 1936 Supp. 5541(89);

40 FLORIDA PROBATE LAW, THIRD PART Duty to assign dower.-the personal representative shall lay off and assign dower immediately after the widow has exercised her election to take dower. History.- 113, ch , 1933; CGL 1936 Supp. 5507(4); Petition for assignment.-for the purpose of enabling the personal representative to lay off and assign dower, he shall file a petition therefor in the county judge's court in which the administration of the estate of the decedent is pending. Citation shall be served upon the widow and the heirs, devisees, legatees and distributees, or such of them as do not appear and join in the proceedings. History.- 114, ch , 1933; CGL 1936 Supp. 5507(5) ; Petition by widow for assignment of dower.- (1) If the personal representative fails to file a petition for the assignment of dower, the widow may file such petition, setting forth her claim, specifying as particularly as may be known to her the property in which she claims dower and praying for the assignment of the same. Citation shall be served upon the personal representative, the heirs, devisees, legatees and distributees, or such of them as do not appear and join in the proceedings. (2) The widow may in addition file her extraordinary petition or petitions for assignment of dower in the county judge's court of any county or counties in this state where any lands lie which her husband had before conveyed, whereof she had not relinquished her right of dower as provided by law. Citations shall be served upon all persons adversely interested. Proceedings thereupon shall be, as nearly as possible, similar to those for the ordinary assignment of dower. Hlstory.- 115, ch , 1933; ~7. ch , 1935; CGL 1936 Supp (6) ; Proceedings on the petition.- (!) The proceedings upon any petition for assignment of dower shall be informal and summary. (2) On any petition for assignment of dower, the right of dower as well as the admeasurement thereof, shall be determined, and mesne profits from the date of the death of the decedent shall be included in the judgment. The county judge in whose court the administration of the decedent's estate is pending shall have plenary jurisdiction to assign dower in all property, real or personal, located in any county in the state. But no such judgment shall become effective in any other county until a duly certified copy thereof has been recorded iii such other county in the judgment lien record. (3) Upon written demand of any party filed twenty-four hours before trial, the question of right of dower shall be submitted to a jury of six persons. The party demanding a jury trial shall, with the filing of his demand, deposit with the county judge sufficient funds to pay for summoning the jury and the fees of the jurors. Fif-. teen jurors shall be summoned from the body of the county and not from bystanders. Hlstory.- 116, ch , 1933; CGL 1936 Supp. 5507(7) ; Commissioners.-!! a judgment for dower is made, the county judge shall select (unless selected by mutual agreement of the parties) and appoint as commissioners three suitable persons who are entirely disinterested and not connected with the parties either by consanguinity or by affinity. Such commissioners may employ a surveyor and shall be allowed such sum as may be deemed reasonable by the county judge to be paid as part of the costs of administration of the estate. They may be removed by the county judge for good cause shown and others appointed in their places. They shall proceed, immediately upon taking oaths faithfully and impartially to execute the trust imposed in them, to allot and set off the widow's dower. All matters of mesne profits shall be decided by the court upon the pleadings and evidence. Hlstory.- 117, ch , 1933; CGL 1936 Supp. 5507(8); Final judgment.-in all cases of assignment of dower, the county judge to whom application is made shall, upon hearing after notice, confirm, reject or modify the allotment or assignment made. Such judgment shall vest in the widow a fee simple estate in the lands and the absolute ownership of the personal property allotted. She shall be entitled to writ of possession if necessary. Hlstory.- 118, ch , 1933; CGL 1936 Supp. 5507(9); Notice to creditors.-every personal representative, after taking out letters testamentary or of administration, shall cause a notice to be published once a week for four consecutive weeks, four publications being sufficient, in a newspaper published in the county wherein said letters have been granted, notifying all persons having claims or demands against the estate of the decedent to file their claims in the office of the county judge granting such letters, at his office in the courthouse of said county, within eight calendar months from the time of the first publication of said notice. If no newspaper conforming to the requirements of law is published in the county of the administration, then such publication shall be made by postin!z" as provided for in this law. Proof of said publication or posting shall be filed with and recorded by the county judge. Hlstory.- 119, ch , 1933; CGL 1936 Supp. 6541(91) ; Form and manner. of presenting claims; limitation.- ' (1) No claim or demand, whether due or not, direct or contingent, liquidated or unliquidated, or claim for personal property in the possession of the personal representative or for damages, including but not limited to actions founded upon fraud or other wrongful act or commission of the decedent, shall be valid or binding upon an estate, or upon the personal representative thereof, or upon any heir, legatee or de-

41 .2575 FLORIDA PROBATE LAW, THIRD PART visee of the decedent unless the same shall be in writing and contain the place of residence.and postoffice address of the claimant, and shall be sworn to by the claimant, his agent or attor.ney, and be filed in the office of the county judge granting letters. Any such claim or demand not so filed within eight months from the time of the first publication of the notice to creditors shall be void even though the personal representative has recognized such claim or demand by paying.a portion thereof or interest thereon or otherwise; and no cause of action, at law or in equity, heretofore or hereafter accruing, including but not limited to actions founded upon fraud or -other wrongful act or omission, shall survive the death of the person against whom such claim may be made, whether suit be pending at the time of the death of such person or n.ot, unless such claim be filed in the manner and within the said eight months as aforesaid; (a) Provided, however, that if suit upon any such claim or demand is filed and service of process therein had upon such personal representative within eight months from the time of the first publication of the notice to creditors, the claim or demand asserted by such suit shall not be impaired or affected by failure to file in the office of the county judge granting letters a claim or demand in manner and form as here inabove provided, but such failure shall operate to preclude the plaintiff in such suit from recovering any suit costs or attorneys fees as an incident thereto; and the personal representative shall file in the office of the county judge granting letters a suggestion of the pendency of such suit and the same shall be entered on the claim docket; (b) Provided further, that the lien of any duly recorded mortgage and the lien of any person in possession of personal property and the right to foreclose and enforce such mortgage or lien shall not be impaired or affected by failure to file claim or demand as hereinabove provided, but such failure shall bar the right to enforce any personal liability against the estate, and the claimant shall be limited to the enforcement of the mortgage or lien against the specific property so mortgaged or held. Any suit heretofore commenced and in which service of process was had upon the personal representative within the period hereinabove specified, and which may now be pending in any court against the personal representative of any estate which has not been finally closed, shall not be subject to attack upon the ground that the claim or demand upon which such suit is based was not made in manner and form and filed in the office of the county judge granting letters, as otherwise hereinabove provided. (2) Nothing herein contained shall be construed to require any legatee, devisee or heir at law to file any claim for the share or interest in estate to which he may be entitled. Hlstory.- 120, ch , 1933; CGL 1936 Supp. 6641(92); am. 3, ch , 1945; 1, ch , 1945; am. 1, ch , ct , Suspension of statutes of llmltauons , Mortgages Amendment of claims.-if a bona fide attempt to file a claim is made by any creditor or other claimant but it is defective as to form, the county judge in his discretion may permit the amendment of such claim at any time before payment. Hlstory.- 121, ch , 1933; CGL 1936 Supp. 6541(93) ; Payment of and objection to claims. (1) No personal representative shall be compelled to pay the debts of the decedent until after the expiration of eight calendar months from the granting of letters; and if any person brings any suit or action against any personal representative within said eight months upon any claim to which the personal representative has filed no objection, the plaintiff, although he obtains decree or judgment, shall not receive any costs of suit or attorneys' fees, nor shall such judgment change the class of such claim in any manner. (2) On or before the expiration of ten calendar months from the first publication of notice to creditors, any personal representative or other person interested in the estate may file in the office of the county judge written objection to any claim or demand filed; and if such objection is filed, the claimant shall have twelve calendar months from the first publication of notice to cr,ditors in which to bring appropriate suit, action or proceeding upon such claim unless the time is limited as hereinafter provided. An objection filed to any unmatured claim matures the same for the purpose of the establishment of the validity and amount thereof by suit. If objection is filed, the person filing it shall serve a copy of such objection by registered mail or personal service on the creditor to whose claim he objects and also on the personal representative if the objection is filed by any interested person other than the personal representative. In such event, the claimant shall be limited to two calendar months from the date of such service within which to bring appropriate suit, action or proceedings upon such claim. The county judge for good cause shown may extend the time for filing objection to any claim or demand and may likewise for good cause shown extend the time for filing appropriate suit, action or proceedings upon any such claim after objection is filed; but in either event, said extension of time shall be granted only after due notice of such application. No suit, action or proceeding shall be brought against any personal representative after the time limited above. If objection is filed to the claim of any creditor and suit is brought by the creditor to establish his claim or demand, a judgment establishing such claim shall give it no priority over claims of the same general class to which it belongs. (3) No interest shall be paid by tne personal representative or allowed upon the claim of any creditor against the estate of a decedent until the expiration of ten calendar months from the granting of letters unless said claim is founded upon a written obligation of the decedent expressly providing for the payment of interest. Interest shall be allowed and paid by the personal representative upon written obligations of

42 FLORIDA PROBATE LAW, THIRD PART 2576 the decedent expressly providing for the payment of interest. Upon all other claims interest shall be allowed and paid beginning ten months from said granting of letters. History.- 122, ch , 1933; CGL 1936 Supp. 6541(94); 3, ch , 1945 ; sub. (2) am. 1, ch , Execution and levies prohibited.-no execution shall issue upon or be levied under any judgment against a decedent or against the personal representative, nor shall any levy be made against any property, real or personal, of the estate of a decedent. Claims upon all judgments against the decedent shall be filed in the same manner as other claims against estates of decedents; provided, however, that the provisions of this section shall not be construed to prevent the enforcement of mortgages, pledges, liens or claims to specific property, real or personal. Hlstory.- 123, ch , 1933; 8, ch , 1935; CGL 1936 Supp (95) ; Order of payment of expenses of administration and claims against the estate; family allowance.- (!) The personal representative shall pay the expenses of administration and claims against the estate in the following order: (a) Class one. Costs, expenses of administration, compensation of personal representatives and their attorneys' fees. (b) Class two. Reasonable funeral expenses not to exceed the sum of three hundred and fifty dollars; any excess over said sum shall be considered as included in the payments specified to be made in class eight. (c) Class three. Expenses of last illness of the decedent, including debts for board and lodging, for hospital, physicians, surgeons', and druggists' bills, and for nursing, attendance and medicine during the last sickness of the deceased, incurred within a period of sixty days prior to the death of the decedent. (d) Class four. If necessary for support, a family allowance of one year's support for the widow or minor children of said decedent, or both, in addition to the homestead and exempt personal property. Upon petition of the widow, if any, or of the legal guardian or of the person having the care and custody of a minor child or children, upon notice to the personal representative, a reasonable allowance shall be fixed by the county judge in personal property or money, or both, for the support of said widow and minor children, considering the needs of the family and the value of the estate. Said allowance or the portion thereof payable in money shall be payable in equal periodic payments to be fixed by the county judge and shall be payable to the widow, if any, for the support of herself and the minor child or children, if any. If there is no widow, then the same shall be payable to the legal guardian or to the person having the care and custody of any minor child or children. Upon the petition of any person interested in the estate, the county judge may increase, decrease, discontinue or modify the allowance; but in no event 'shall such allowance exceed the sum.. or va lue of twelve hundred dollars. (e) Class five. Wages to the extent of one hundred dollars for each employee of the decedent, for work done or services rendered within sixty days prior to the death of the employer. (f) Class six. Judgments of record in this state during the lifetime of the decedent. (g) Class seven. Mortgages, mechanics', material-men's, laborers', employees' and other liens where the value of the property of the estate encumbered by said liens exceeds the amount thereof. (h) Class eight. All other debts without distinction of rank. (i) Class nine. If, upon petition of the wid.ow or minor children of decedent, upon notice to the personal representative, it shall appear that the family allowance provided un.der paragraph (d) of this subsection is insufficient for the reasonable support of said widow or minor children, or both, according to their previous standard of living, then the county judge may order the payment of a supplemental family allowance from the assets of decedent's estate remaining after full provision ~or payment of prior claims, which in his opin Ion will reasonably support said petitioners provided, however, that such supplemental al~ lowance shall not exceed the sum of three thousand dollars. Said supplemental allowance ~hall be paya~le in such manner as the county JUdge shall direct, and shall be subject to discontinuance or modification in the same manner as the family allowance provided for under paragraph (d) hereof. (j) Class ten. In case the decedent, dying testate, leaves a natural or adopted child less than ei~hteen y~a~s of age without a legally responsible survivmg natural or adoptive parent and without adequate means for support and maintenance in its own right by will, gift or trust, such child shall be deemed a dependent orphan child of the decedent. In addition to any temporary allowance for maintenance during the period of administration as provided by paragraph (d) hereof, the court on petition of any interested party or on it~ own motion, shall make such additional provision for such child until its eighteenth birthday as the court deems reasonable and just subject to the limitations hereinafter set forth: The court may increase, discontinue or modify such allowance, but before entering any order fixing or changing any allowance hereunder the court shall require notice to all interested parties. This provision is designed to afford reasonable protection to any dependent minor child who has been excluded from the provisions of the parents' will under circumstances which deprive it of an effective legal substitute for t?~ continuing obligation of the parent, while hvmg, for support and maintenance during the period of its minority. It is not intended that ~his provis!on sho_uld have the effect of creating m any child omitted from the provisions of its parent's will an estate which would exceed the value of its distributive share had the de-

43 2577 FLORIDA PROBATE LAW, THIRD PART ceased parent died intestate. The court in its discretion, and in order to conclude the administration of the estate, may order the entir.e allowance hereunder paid in a lump sum to a guardian of the child's property, and in fixing the amount thereof the court shall consider the net value of the estate subject to distribution and the reasonable requirements of the child prospectively in relation to its eighteenth birthday. (2) If, after paying,any preceding class, the estate shall be insufficient to pay all of the next succeeding class, the creditors or claimants of the latter class shall be paid ratably in proportion to their respective claims. History.- 124, ch , 1933; CGL 1936 Supp. 5541(96); Am. 1, ch cf , Payment of legacies and distributive shares , Order of appropriation of assets Compromise and settlement.-whenever it is proposed to compromise or settle any claim, whether in suit or not, by or against the estate of a decedent or the personal representative thereof, or to compromise or settle any question or dispute concerning the distribution of a decedent's estate, the county judge having jurisdiction of said decedent's estate, on sworn petition setting forth the facts and circumstances of such claim, question or dispute and the proposed compromise or settlement may, if satisfied that such compromise or settlement will be for the best interests of the estate, enter an order ex parte authorizing the same.to be made, which order shall operate to relieve the said personal representative of any and all liability or responsibility in the premises; provided, however, that claims against the estate may not be compromised until after the time for filing objections to claims has expired and then only upon notice to those who have filed objection to the claim proposed to be compromised. History.- 125, ch , 1933; CGL-1936 Supp. 5541(97); Claims undisp~se«;l 9f ~fter three years barred.- ' -. ;. (_I) W_henever anyor"te s~all have fil~~;-a clarm ;:tgamst any est.ate in any,p.robate proceedings in this state, in.accordance with this chapter, and which claim. has not h.ad objection filed thereto or has not peen paid, settle:d or otherwise. disposed of and no proc:;eedirig. i,s pending for the enforcement. or.compulsory payment thereof, then at the,; expir.ation of three years from the da-te such 'l?i.laim. is JHed S\1-Ch claim shall be forever barre:d anp fol;'eclosed :and have no further force 101; effect,and no :.Proceediri.:g or action- shall :- thereafter ever:'be l:lrought 1 f('}r e-nforcement or pay-ment of same;, This -section sha!l.not affect the. lien,: of-an,y :duly rec-o;l'!ded mo,dgage or the lie.n.ol any > pe!ji's.on in '" pos~:~es. sion of perspnalpr..opsnty: or the. rig.ht to, foveclose and enforce such mortgage or:1ien:- - ' '";{2) This section shall"not ra'ppjy to any clah:n.upon :which legal p:rolii~dings are -brought f6r.enforcement' or-' contpnh~y cpg:ymen.t 'Uti : 'same.:.-j.,,, ~lslor;t.-ceomp., : 1. - a. r.ch~ 28lj!lj)~'j'~95~. ;--,-. J :,:,. : -on oej before Ja:nul:l:ry,;:J; 191'i4. j,- c..,;,,;_;.,. & ' _, Sale pursuant to will.-in every case where a power is given in a will to sell or dispose of property of the estate, or any interest therein, a sale made under authority of such will shall be valid. The sale and disposition of property under such power may be made by the executors, or such of them as qualify, or by the surviving executor or executors, or by the administrator with the will annexed, or by the administrator de bonis non, if no other person is appointed in the will for such purpose, or, if the person so appointed refuses to perform the trust or dies before he has completed the same or is otherwise rendered incompetent. Hlstory.- 126, ch , 1933; CGL 1936 Supp. 5541(98); Sales where no power eonferred. Whenever any administrator of a decedent dying intestate, or any executor or administrator with the will annexed whose testator has not conferred upon him a power of sale or whose testator has granted such power but that power is so limited by the will or by operation of law that it cannot be conveniently exercised, shall consider that it is for the best interest of the estate and of those interested therein that the property of the estate be sold for distribution or for any other purpose, the personal representative may sell the same at public or private sale; provided, however, that no title shall pass until by order of the county judge the sale shall be authorized or confirmed. Sales may be authorized before made or confirmed after made. Application_ for authorization or confirmation of sale shall be made by the sworn petition of the personal representative setting forth the reasons for such sale, a description of the property sold or proposed to be sold, and except when authorization or confirmation :of the sale at the current market of stocks or bonds ]jsted upon an established exchange is ap,plied f_6r, the price and_ terms of such sale. Histor:y.- 127, ch, 16103, 193&.; CGL 1936 Supp. 5541(99); am. 3, ch , 1945 ; 9; ch , cf , Sale of stocks and bonds , Execution. of instruments by l'epresentative. 733:24 Sale on peti'tion of. interested per ~ons.-if a personal representative neglects or refuses to sell property of an estate when if is exp,edient. or neces!:!ary to... do s.o OJ,". when. a testator has directed a sale.to be' made, any ' per~on ~n~er~s ted may, by petition, apply,to. the county.judge for an order requiring the_ personal representative to sell. Notice of such petition shah.be given t,o: the personal representative and:'--to- :su'ch.persons'. a.s w'oulc;i be entitled tq : notic~un : C':ase of the applica:tion Of the personal' repi'e~sehtative fo'r authorization. or co,nfirmation of a sale- of s uch property. '- ' ':'.. :, i '. :... Jllstory.- 128, ch , 1933; C<fL 193,6 ~~pp, ~5~1(1_00); am. 3, ch , , ' -- '.,:. ;r ',., ' ~??:2.~ 1., s.~i( ~~ -~t~~t~~ope'.rty ~~en, ~i~ow sp~~rye!3,:""7""1ii. al}~ Ja~,e, ~~e_n.a, J dec.e_d~n,t 1s. 8).lr ;Ylyei;t,l)y.a.WIQO'f,,no s~le : or drsposrt~o,n,of real :pr4r,e#y:, spalj.0,~ : J?ade, 'w.1t'ether pursu i:fto the po'yer~. ~p,nta~n,~jl JII.t~e,~~qe,de? ~:~ 'f;m or; upder.th,e( 0P!:p.vrs.J:9l}~. of th1~, Jaw~:: ul;l:t,it ~L~I?Iiear,s. that the.w@ow wdlnot have.-. aower,, assrgp~d to her, _,., lt... 'ilie tiikes dower, Uiitir'"fter liet 'do. 1 "e :_MS - ~ --- ' _...., ~ --..., ~r. -., ;.,or, ~

44 FLORIDA PROBATE LAW, THIRD PART 2578 been assigned, unless the widow consents to such sale and joins with the personal representative in the execution of a deed of conveyance to the purchaser thereof. History.- 129, ch , 1933; CGL 1936 Supp. 6541(101); When notice of sale required.- (!) No notice of any application for the authorization or confirmation of any sale shall be required when it shall appear that the personal property involved is perishable or rapidly depreciating. (2) No notice of any application for the authorization or confirmation of any sale shall be required in any other case except as follows: (a) Whenever it shall appear to the county judge that notice is necessary or desirable, notice shall be given to such persons as the county judge shall by order direct. (b) Whenever application is made for the authorization or confirmation of the sale of property which has been specifically devised or bequeathed, notice shall be given to the devisee or legatee, unless he waive such notice or consent to such sale. (c) Whenever any person interested in the estate shall serve upon the personal representative a written demand for notice of sale, containing the post-office address of such person, and file a copy of such demand and proof of the service thereof in the office of the county judge, notice of every application thereafter made for the authorization or confirmation of any sale shall be given to such person, unless he waive such notice or consent to such sale. (d) Whenever the will of a decedent shall contain a direction or express a desire that any described or designated property be not sold, notice of application for the authorization or confirmation of the sale of any such property shall be given to the legatee or devisee of such property, unless he waive such notice or consent to such sale. (e) Whenever application is made for the authorization or confirmation of th~ sale of any property for distribution. Hletory.- 130, ch , 1933; CGL 1936 Supp. 6641(102); am. 3, ch , 1946; 10, ch , Hearing on application to sen. Where no notice is required, the county judge may hear and determine petitions for the sale of property ex parte. Where notice is required, such hearings shall be as in other cases. At ~my such hearing the county judge may in his discretion require an appraisal or new appraisal of the property. Hlatory.- 131, ch , 1933; CGL 1936 Supp. 6641(103); Order of sale.- (1) SALE GENERALLY.-After the hearing upon a petition to sell or confirm the sale of property, the county judge shall make and enter an order thereon, and if the sale is authorized or confirmed, the order shall describe the property,. and if said property is authorized to be sold at private sale, the order.shall fix the price and the terms of sale. Such order shall be prima facie evidence of the validity of the proceedings and of the authority of the personal representative to make a conveyance or transfer of the property. A certified copy of such order relating to real property may be recorded in the judgment lien record in the office of the clerk of the circuit court in each county wherein such real property or any part thereof is situated. When an order authorizing a sale is obtained, it may provide for the public or private sale of any of the property described therein, in parcels or as a whole. If public sale is ordered, the personal representative shall give such notice as the order may require. (2) SALE BY COMMISSIONER.-In the order of sale, or at any time before a sale authorized to be made by an executor or by an administrator, the county judge, whenever he deems it necessary, may appoint a commissioner to make the sale and to execute whatever instruments may be necessary to consummate it. Any sale made by such commissioner shall be in compliance with the law governing sales by executors a~d ~dministrators. Any sale so made by a commissioner under such an order shall be as valid as though made by the executor or administrator. Hlstory.- 132, ch , 1933; CGL 1936 Supp. 5541(104); am. 3, ch , 1945; 11, ch , Additional bond upon sale.-whenever the county judge makes an order authorizing or confirming a sale of property of an estate, he may in his discretion require the personal representative to execute a bond or an additional bond, with sureties as provided in this law, in such amount as the county judge may deem necessary, conditioned for the faithful accounting of the proceeds of such sale. No such bond shall, in any case, be required where the personal representative is a bank or trust company. All such bonds shall be recorded in the office of the county judge. History.- 133, ch , 1933: CG L 5541 (105) ; am. 13, ch , ct , Bond by a surety company Sales upon terms.-when so provided by the order of the county judge authorizing or confirming a sale of property, personal representatives may sell upon such terms as the order prescribes. If credit is given, it shall be for not more than sixty per cent of the purchase price nor for longer than five years, unless the county judge, in his discretion by written or.der,.,authorizes a larger per cent of cr_gd'it. The county judge, in his discretion by written order, may also enlarge the time for payment. The exercise of such discretion shall be evidence_d by-written order duly recorded. The d~r.ed-purcbase price shall be evidenced by the promissory note of the purchaser payable to the personal representative and secured by mortgage upon the property sold, if real property, or by such security as may be approved by the court in any case. The taking of any such promissory note and mortgage or other security shall not defer the final settlement of the estate, but, in the event of final settlement before the payment in full of such note, the same, together with the mortgage or other security, may be assigned and transferred without recourse to such person or persons who, but for

45 2579 FLORIDA PROBATE LAW, THIRD PART such sale, woqld have been entitled to the property so sold. History.- 134, ch , 1933; CGL 5641(106) am. 3 -ch, 22783, 1945; 12, ch , ' ' When personal representative may _purchase.-any personal representative having an interest in the estate which he represents, either in his own right or in the right of his wife or infant child, as creditor, devisee, legatee or heir at law may, at any public sale of the real {)r personal property of his testator or intestate made as provided by law under the order of the eounty judge, become a bidder therefor; and, if.such personal representative is the highest bidder at such sale, he may purchase the same, and said property shall be sold to such executor or administrator, but such sale shall always be subject to confirmation by the county judg. History.- 135, ch , 1933 ; CGL 5541(107); am. 3, -ch , Conveyances pursuant to contracts of decedent.-in all cases where written agreements have been made for the sale and conveyance or transfer of real property in this state or of personal property, and the vendor has died before making such conveyance or transfer, the personal representative or person claiming the right to such conveyance or transfer may file with the county judge before whom the admini~tration. of the estate is pending a. sworn petitwn settmg forth the facts upon which the claim is predicated and annexing thereto the agreement or a copy thereof. The county judge, if he deems notice of hearing on said petition necessary or desirable, shall direct who should have t~e same and the manner in which it should be given. After a hearing upon such petition and ~he defenses, if any, made thereto, the county.judge may make an order directing the personal representative to make, execute and deliver the conveyance or transfer to the person entitled to the same, or otherwise as justice may require. Such order shall describe the property to be conveyed or transferred. Said order shall be prima facie evidence of the validity of the proceedings and of the authority of the personal representative to make the conveyance or transfer. A certified copy of any such order relating to real property may be recorded in the miscellaneous records in the office of the clerk of the circuit court in any county wherein such real -property or any part thereof is situated. History.- 136, ch , 1933; CGL 6541(108); am. 3, -ch , 1945; am. 1, ch , Sale of contract to purchase.-if a decedent at the time of his death was possessed of a contract for the purchase of real property the interest of the estate in such property and under such contract may be sold by the personal representative in the same manner as if the de -cedent had been the owner in fee simple of such :P,roperty; provided, the holder of the fee simple title to such property and of the vendor's interest thereto shall execute a release to the personal representative relieving the estate from liability upon such contract. Such release shall not be required if no claim has been filed on such contract and if the time for filing claims has expired. In lieu of such release the personal representative may, upon order of the county judge, take from the purchaser of such contract a bond approved by the county judge with sureties in a penal sum double the amount due and to become due under such contract, conditioned that the purchaser will make all payments upon such contract and perform all agreements therein contained according to the tenor thereof and indemnify and save harmless the personal representative and all persons interested in the estate against all demands, costs, charges and expenses by reason of such contract. Hlstory.- 137, ch , 1933; CGL 1936 Supp. 5541(109); Sale of real propedy subject to contract to purchase.-if a decedent at the time of his death was the owner of real property subject to a contract to sell and convey said property, the interest of the estate in such property and such contract may be sold under order of the county judge in the same manner as other real estate. No recourse shall be had against the estate or the pers_onal representative for the nonpayment or nonperformance by the vendee under any such contract. The consent of the vendee under any such contract to the sale thereof shall discharge the estate and the personal representative from all obligations, duties and liabilities with respect to such contract, but such consent shall not be required if no claim has been filed thereon and the time for filing claims has expired. Hlstory.- 138, ch , 1933; CGL 1936 Supp, 5541(110) ' Sale of real property subject to mortgage.-the county judge may, upon petition of the personal representative and with the written consent of the holder of the mortgage, authorize the sale of real property of the estate subject to mortgage, whether.&uch mortgage was made by the decedent, the personal representative or any other person. The consent of the mortgagee shall discharge the estate and the personal representative from liability for the mortgage i'ndebtedness or obligation. Such consent shall not be required if no claim has been filed upon the mortgage indebtedness and the time for filing claims has expired. Hlstory.- 139, ch , 1933 ; CGL 1936 Supp. 5541(111); cf , Presenting claims Sale of stocks and bonds.-the county judge may, upon petition of the personal representative, make an order authorizing the sale, at the current market price, of any stocks or bonds which are listed upon an established stock or bond exchange, and such order need not otherwise designate the price at which such sale shall be made. Hlstory.- 140, ch , 1933; CGL 1936 Supp. 5541(112); Interest in partnership.-when at the time of his death, a partnership existed between the decedent and any other person, the surviving p~rtner shall, in the absence of a partnership agreement providing otherwise, without delay, wind up and settle the business and ~he. affairs of the partnership,

46 FLORIDA PROBATE LAW, THIRD PART 2580 account to the personal representative and pay over to him all balances due the estate. If, however, at date of the partner's death, there existed a partnership agreement specifying the terms and conditions of termination of the partnership upon death of a partner, then such agreement shall be binding with respect to all matters, duties, rights and obligations relating to the partnership, including the determination of its final accounting period. The interest of the decedent in the partnership shall be included in the inventory of the estate. The personal representative may bring and maintain against the surviving partner any action, suit or proceeding relating to the partnership which the decedent could have brought. Any interest of an estate existing by virtue of a partnership between the decedent and any other person may be sold in the same manner as other property of the estate. Hlstory.- 141, ch , 1933; CGL 1936 Supp. 6541(143) ; Am. 1, ch , Lease of real property.-whenever it appears expedient and for the best interest of the estate to lease any real property of the estate, the county judge may authorize the personal representative to make such lease. The proceedings in such cases shall be, as nearly as possible, the same as in cases of application for the sale of property, except that notice shall be given to all persons interested in the estate. The personal representative may lease real property without an order Of court when the tenancy is from month to month or for a term not extending beyond the time for filing claims against th~ estate. History.- 142, ch , 1933; CGL 1936 Supp. 5541(113); am. 3, ch , Borrowing money and mortgaging property.-whenever it appears expedient or necessary and for the best interest of the estate to borrow money upon a promissory note, either unsecured or to be secured by a mortgage, pledge or other lien upon the property of the estate or any part thereof, the county judge may by order authorize the personal representative to borrow such sum as the county judge shall deem proper. The proceedings in such cases shall be, as nearly as possible, the same as in cases of applications for the sale of property, except that notice shall be given to all persons interested in the estate. In like manner the county judge may authorize the personal representative to extend or renew any existing obligation of the estate or to extend or renew any existing mortgage, pledge or other lien. The signing of promissory notes or the execution of any agreement or other instrument creating a pledge or other lien by the personal representative, as such, shall create no personal liability against the person so signing or executing. Hlstory ch , 1933; CGL 1936 Supp. 5541(114); cf , Sales where no power conferred , Mortgages held by foreign representatives Power of personal representative to execute instruments.-whenever the county judge authorizes or confirms any sale, authorizes the borrowing of money or the execution of any mortgage, agreement or other instrument creating a lien or a lease, or authorizes the distribution in kind of any property, the personal representative may make, execute, sign, seal, acknowledge and deliver in his name as such personal representative all deeds, bills of sale, as- signments, instruments of transfer, promissory notes, mortgages, pledges, leases or any instruments necessary or proper to carry out and give effect to such orders. Hlstory.- 144, ch. 16i03, 1933; CGL 1936 Supp. 5541(115); Purchaser protected.-no person purchasing or leasing from, or taking a mortgage, pledge or other lien from a personal representative shall be bound or concerned to see that the money or other things of value paid to such personal representative are actually needed or properly applied; nor shall such person be otherwise obligated as to the proprieties or expediences. of the acts of such personal representative. In all such transactions the acts of the personal representative pursuant to the powers of a will or the order of the. county judge shall be prima facie valid. Hlstory.- 145, ch , 1933; COL 1936 Supp. 5541(116); Limitation in favor of purchaser from personal representative.-the title of any purchaser, or of anyone holding under him, who has held possession for three years or more, of any property, real or personal, purchased at any sale made under this law by an executor or administrator, free from fraud, shall not be questioned by any person upon any ground. Hlstory.- 146, ch , 1933; CGL 1936 Supp. 6541(117) ~ Annual returns.-a personal representative, unless otherwise ordered by the court, shall, make his annual returns, filing his. accounts and vouchers with the same on or before ninety days after the expiration of the fiscal year, the election whereof he shall signify by filing notice thereof with the court within ninety days of his appointment, or, in the absence of such notice of election, on or before April 1st of each year for the calendar year or fraction of a calendar year expiring on December 31st preceding. If he fails to make such returns before the time applicable he shall, in the discretion of the county judge, forfeit all commissions on such returns so to be made; provided, however, that if the time for filing claims against the estate has expired prior to the end of the fiscal or calendar year, or shall expire within thirty days. thereafter, the personal representative, may ~ in lieu of making annual returns, file his final returns within ninety days from the expiration of the fi scal year or on or before April first after expiration of the calendar year and apply for a discharge. If he fails to make his annual reports within such times as above specified, then, when such returns. are made, he shall immediately give written notice of the. filing of such returns to an

47 2581 FLORIDA PROBATE LAW, THIRD PART persons interested in the estate being administered by him. History.- 147, cl) , 1933; CGL 1936 Supp. 5541(118); am. 3, ch , 1945; 13, ch , Am. 1, ch , cf , Accounting upon removal , Final settlement and discharge Contents of returns.-a personal representative in his returns shall render a full and correct account of the receipts and expenditures of all the estate of which he may have control, and include therein a statement of the assets of the estate. Hlstory.-~148, ch , 1933; CGL 1936 Supp. 5541(119); Objection to returns.-upon the filing of returns with the county judge by a personal representative, any person interested as creditor, legatee, distributee, devisee or heir at law may, within thirty days after the time limited by law for filing the same, file objection in writing to the account or any item thereof, specifying the ground of objection. No item previously approved by order of the county judge upon notice shall be subject to objection. If any personal representative fails to file his annual -returns on or before the first day of April in any year, any person interested in the estate may file in the office of the county judge a written demand for service of a copy of the returns, which demand shall contain the post-office address of the person filing the same. If any demand is on file at the time the returns are filed, the personal representative shall serve a copy of the returns upon the person who filed the demand therefor and shall file proof of the service thereof in the office of the county judge. Objection may be filecl to the returns at any time within thirty days after the service of copy thereof. Hlstory.- 149, ch , 1933; 9, ch , 1935; CGL 1936 Supp (120) ; Trial of objections.-if objections to accounts are filed, the personal representative or the objecting party may, after the expiration of the time limited for filing objections, upon ~easonable notice to the other, apply to the county Judge who shall fix a day for the hearing. Upon the conclusion of the hearing, an order shall be entered by the county judge finally sustaining or overruling the objections, and he shall thereupon proceed to examine and audit said accounts and enter his order thereon. Hlotory.- 150, ch , 1933; CGL 1936 Supp. 5541(121); Audit of accounts not objected to.- 1f no objection is filed to returns or accounts within the time limited by law for filing objections, the county judge shall proceed to examine and audit said returns and accounts and enter bis order thereon. History.-H51, ch , 1933; 10, ch , 1935 CGL Supp. 5541(122); ' Recording settlement.-there may be :ecorded in the office of the county judge any 1nstrument settling an account in whole or in part, executed by the personal representative and :any one or more legatees, devisees, heirs or claimants. To be entitled to record, any such instrument shall be acknowledged or sworn to by the parties before any officer authorized to take acknowledgments or to administer oaths, and the record thereof or a duly certified copy shall be admitted as prima fade evidence thereof and of its due executim~ without requiring proof of the execution. Hlstory.- 152, ch , 1933; CGL 1936 Supp. 5541(123): Order requiring returns; contempt of court.-when any personal representative fails or neglects to make the. annual returns and to file accounts and vouchers as required by this law, the county judge shall issue an order directing said personal representative to make such returns and to file such accounts and vouchers within fifteen days from the service upon him of such order, or show cause why he should not be compelled to do so. A copy of such order shall be served upon the personal representative. If the said personal representative fails, neglects -or refuses without good cause shown to file such account and vouchers and to make said returns within the time specified by said order, the county jud~e shall forthwith issue a citation directed to said personal representative to show cause why he should not be adjudged in contempt of court for such failure or neglect; and if such personal representative fails to show just cause, the county judge may forthwith adjudge said personal representative to be in contempt of court, and said person shall stand committed for contempt until he makes the annual returns and files his accounts and vouchers. Hlstory.- 153, ch , 1933; CGL 1936 Supp. 5541(124): Compulsory settlements.-although an executor may, by the terms of the will appointing him, be exempted from making settlements with returns to the county judge, and although no mismanagement or waste is charged against him, upon the application of any creditor, legatee, distributee, devisee, heir or surety, the county judge shall make an order directing the personal representative to file such accounts and to make such settlements and distribution in whole or in part as is deemed necessary for the proper administration of said estate. Such order may also be made by the county judge upon his own motion. Hlstory.- 154, ch , 1933; CGL 1936 Supp. 5541(125); cf , Settlement upon removal Production of assets.-upon the petition of any creditor, legatee, distributee, devisee or heir at law, or upon his own motion if he deems it necessary for the proper administration of said estate, the county judge may require any personal representative to produce satisfactory evidence that the assets of the estate are in his possession or under his control and, if necessary or proper, may order the production of such asset!' for the inspection of such creditor, legatee, distributee, devisee or heir at law, or of said judge. Hlstory.- 155, ch , 1933; CGL 1936 Supp. 5541(84);

48 FLORIDA PROBATE LAW, THIRD PART 25~2' Devastavit.-When an action suggesting a devastavit is brought against any personal representative, if such personal representative cannot show that he has fully administered according to law, he and his sureties shall be personally charged to the extent of assets not duly administered by him. H istory.- 166, ch , 1933; CGL 1936 Supp, 6541(85) ; Who may suggest devastavit.-an action suggesting devastavit may be brought against the personal representative by any person interested in the estate. When a personal representative resigns, dies or is removed, an action suggesting devastavit may also be brought against him or his executors or administrators and against his surety or sureties by the remaining or successor personal representative. Hlstory.- 167, ch , 1933; CGL 1936 Supp. 6641(86) ~ a m. 3, c h , Waiver of statute of limitations, internal revenue matters.-any executor or administrator, duly appointed by any county judge in the State of Florida and qualified to act under such appointment, may enter into agreements with the proper officer or department. head, commissioner or agent, of any department of the government of the United States. of America waiving the statute of limitations with respect to the assessment and collection of any federal tax or any deficiency in any federal tax ; provided, however, that any such agreement shall be first approved by the county judge having jurisdiction of the administration of the estate. Hlstory.-Comp. 1, ch , 1949.