WRECKED COTTON; LUMBER ADRIFT; BOATS AND VESSELS ADRIFT Ch. 706 CHAPTER 706 WRECKED COTI'ON; LUMBER ADRIFT; BOATS AND VESSELS ADRIFT

Transcription

1 WRECKED COTTON; LUMBER ADRIFT; BOATS AND VESSELS ADRIFT Ch. 706 CHAPTER 706 WRECKED COTI'ON; LUMBER ADRIFT; BOATS AND VESSELS ADRIFT Finder of wrecked cotton to advertise Fees Owner to -pay expenses and salvage Sale of lost timber Sale Picking up lumber adrift Persons to adopt brand for lumber Ports having no public custodian; lumber, Damages for fraudulently using stamp. etc., not to be stayed before reaching Booms may be constructed. the sea Public custodian for certain ports Lumber taken up in sea, etc., to be ad To what ports apply. vertised Custodian; duties as to vessels Sale and disposition of proceeds Custodian; duties as to lost timber Selling rafted lumber adrift Notice of finding lost timber Proceedings like those for estrays Stamp to be evidence Finder of wrecked cotton to advertise.-persons t11king up cotto-n 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 s~id cotton, together with the place of finding and the name of the finder. Hlstory.- ~ 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, M a rch 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. H istory.- 3, March 4, 1841; RS 2018; GS 2540; RGS 3895; CGL Persons to adopt brancl 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. Hlstory.- 2. ch. 607, 1853; RS 2019; 1, ch. 4174, 1893; GS 2641; RGS 3896; CGL 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.-R~ 2020; 2, ch. 4174, 1893; GS 2642; RGS 1897; CGL 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 vurpose of securing 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. History.- 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 dollaro 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. Hlst ory.- 1, ch. 6171, 1903 ; GS 2544; RGS 3899; CGI 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. Hlstory.- 2, ch. 4803, 1899; GS 2552; RGS 8905; 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 c2rgo from the water a suitable stamp, with which the master of the said veseel shall cause to be stamped all timber and lumber irnmediately upon its receipt alongside to be loaded as above set forth Hlstory.- 2, ch. 8899, 1889; RS 2023; GS 2M&; 3900; CGL RG8

2 Ch. 706 WRECKED COTTON; LUMBER ADRIFT; BOATS AND VESSELS ADRIFT Custodian; duties as to lost timber.- same be fully paid, and he shall not be re The said public custodian, either by himself quired to deliver any timber, lumber, chains, or his agent, shall keep at all times a careful iron dogs, boats or yawls until such payment watch over the waters of his port, and shall is made. recover and place in a boom to be kept by Hlstory.- 6, ch. 4044, 1891; 1, ch. 4803, 1899; GS 2549; him for the purpose, convenient to the ship- RGS 3904; CGL 6811; am. 7, ch , ping, all timber and lumber that shall be Sale of lost timber.-after any lost found adrift in said waters, and safely keep timber or lumber has been advertised as above the same until disposed of in the manner required for the period of five days, and no hereinafter provided; but nothing in this sec- owner or claimant has appeared, the custodian tion contained shall authorize the public cus- shall sell the same at public sale, after publi~ todian, or his agent, or any other person, to notice as aforesaid, advertised for five days, take possession of any lumber or timber afloat for the benefit of whom it may concern, tor upon the waters of such port, or its tribu- which service he shall receive from the protaries, when the owner thereof, or his bailee ceeds of such sale five per cent on the gross or agent, shall be in possession, vi~w or im- amount of such sale; the net proceeds of such mediate pursuit thereof. sales to be held and paid by him to such Hlstory.- 3, ch. 3899, 1889; RS 2024; 2, ch. 6171, 1903; person as shall be lawfully entitled to the GS 2546; RGS 3901; CGL same Notice of finding lost timber.-the Hlstory.- 7, ch. 3899, 1889; 3, ch. 4044, 1891; RS 2028; said public custodian of timber and lumber GS 2551; RGS 3906; CGL immediately upon the recovery of any timber Picking up lumber adrift.-no peror lumber shall give public notice for five son other than the custodian of lost timber, or days in some newspaper published at said his agents, in ports where such custodian has port giving the description, quantity and stamp been appointed, shall pick up, recover, or in of such timber or lumber, and stating that any manner interfere with any timber or!urnunless said timber or lumber be called for and ber found adrift in the waters of such port, identified by the owner within five days, the which has been stamped as required by law same will be sold as provided in , and or which has not been stamped. Any person that if the proceeds of such sale be not called violating the provisions of this section shall for by the person lawfully entitled to the same be punished by fine of not less than five dolwithin ninety days after such sale, the same Jars and not more than fifty dollars or imwill be forfeited and paid into the county prisonment for not more than thirty days. treasury for the use of county schools; and Hlstory.-RS 2503; 8, ch. 3899, 1889; 4, ch. 6171, 1908; the owners ofany such timber or lumber shall GS 3386; RGS 5234; CGL be entitled to have the same delivered when Ports having no public custodian; at said boom upon paying to the said cus- lumber, etc., not to be stayed before reaching todian the fees hereinafter provided. the sea.-in ports having no public custodian, Hlstory.- 4, ch. 3899, 1889; RS 2025; 3, ch. 6171, 1903; no person other than the owner or his agents GS 2547; RGS 3S02; CGL f shall arrest, stay or take possession o any Stamp to be evidence.-the stamp sawed lumber in rafts, hewed timber, round furnished and used under the provisions of saw-mill logs or spars adrift before the same when appearing upon timber or lumber shall have reached the mouths or outlets of the adrift shall be, in the courts of the state, prima rivers and streams and have passed out into facie evidence of ownership. the open sea or bays where the said rivers Hlstory.- 5, ch. 3899, 1889; RS 2026; GS 2548; RGS or streams empty their waters. 8903; CGL Hlstory.- 1, ch. 507, 1853; RS 2030; GS 2652; RGS Fees.-The said public custodian of 3907; CGL lost timber and lumber shall be entitled to Lumber taken up in sea, etc., to be demand and receive from the master of each advertised.-whenever any person shall find vessel using the stamp provided for in this any rafts of the timber or lumber mentioned chapter the sum of two dollars for the use of in in the said open sea or bays, he shall the same while engaged in loading, and for each secure it in the place where found, or in the stick of sawn timber recovered and delivered nearest place of safety, and Rhall proceed the sum of seventy-five cents and for each to advertise it at the door of the courthouse of stick of hewn timber recovered and delivered the county wherein it was found, stating the the sum of one dollar and fifty cents, and for kind and probable quantity of lumber, the lumber recovered and delivered the sum of place where found and where deposited. three dollars per thousand superficial feet Hlstory.- 1, Feb. 10, 1834; RS 2031; GS 2553; RGS measurement, two dollars and fifty cents for 3908; cgl each chain and five cents for each iron dog recovered and delivered, and five dollars for Sale and disposition of proceeds. each ship's boat or yawl recovered and de- If after the expiration of sixty days from the livered and the said custodian shall have a date of the advertisement no person shall first lien upon timber, lumber, chains, iron claim and establish his right of property to dogs and boats or yawls so recovered by him said timber or lumber to the satisfaction of for all his fees and dues for same until the the justice of the peace of the district (to 3102

3 WRECKED COTTON; LUMBER ADRIFT; BOATS AND VESSELS ADRIFT Ch. 706 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 peece, 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 case 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 h~ve 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. Hlatory.- 2, Feb. 10, 1834; RS 2032; 8!109; CG L GS 2554; RGS 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. Hi&tory.- 3, Feb. 10, 1834; RS 2446; GS 3294; RGI!J 6128; CGL 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. Hlatory.- 8, Nov. 21, 1828; RS 2033; GS %665; 3910; CGL cf.-ch. 707 Estrays. RGS :nos

4 Ch. 707 ESTRAYS Definitions Maliciously taking up animals as estrays Failure to comply with regulations Who may take 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 in 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 3911; CGL 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 3912; CGL CHAPTER 707 EBTRAYS 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 2086; 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 al'lcertain the value of such estray which appraisement and description, together with the name of the taker-up and his place of residence, the justice 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. 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, and that the owner is to him unknown. Hlstory.- 1, Feb. 12, 1833; 1, Feb. 11, 1837; RS 2088; GS 2560; RGS 3915; CGL 5822; 29, ch Proceedings for other animals.-ln case any person shall take up any estrayed neat cattle, sheep, goats or hogs, he shall cause the same to be viewed by a hcuseholder in the county, and the taker-up shall be compelled to advertise said estray at least five days at the place of holding justice's courts, as in the district prior to tolling, and shall immediately thereafter go with such householder before the justice of the 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 brar.ds, color and age of all and every such neat cat~le, 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 shah 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 :2661; 8916; CGL RGS 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; GS :2562; 3917; CGL RGS Clerk to record certificate and to advertise estray.- The clerk of the circuit court in each county shall receive and enter

5 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 new&paper 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 shall happen after the expiration of the said advertisement, and the clerk of the circuit court of the county, 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. Every 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. ' History.- 5, Feb. U, 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 person 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 b~fore 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 of 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. History.- 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 commissioners of the county that the estray so sold was his own property, ESTRAYS Ch 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 board 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. History.- 7, Feb. 12, 1833; 2, Feb. 11, 1837; RS 204 ; 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 the same or the valuation thereof. Hlstory.- 10, Nov. 21, 1826; RS 2046; GS 2667; RGS 3922; CGL Estray may 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. U, 1833; RS 2046; GS 2668; 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 cents 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. History.- 10, Nov. 12, 1833; RS 2047; GS 2669; 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 Ch. 707 ESTRAYS.of five per cent upon the balance of such money as a compensation for se!ling or collecting and paying. Hlstory.- 8, 11, Nov. 12, 1833; RS 2048; GS 2570; RGS.8925; 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 aforesaid, 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.8926; 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 requued 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. Hlstory.- 14, Nov. 12, 1833; RS 2050; GS 2672; RGS. s927; 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 ai!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 any cattle ()r other domestic animals belonging to such ()Wners or under the control of such agent ()r agents so entering. Hlotory.- 1, ch. 6417, 1905; RGS 8928; CGL Owner of strayed animals to notify owner of pasture of intention to enter.-the ()Wners 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 ()Wners or their agent or agents of the time and place they desire to enter such pasture fo!' the purposes set forth in said section. Such notice may be given verbally or in writing. Hlstory.- 2, ch. 6417, 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 History.- 3, ch. 6417, 1905; RGS 3930; CGL 6837, 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 own('r 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 same 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 t.o exceed one month. Provided, that this section shall not apply to any county having no-fence districts. History.- 1, 4, ch. 5417, 1905; RGS 6238; 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. Hlstory.- 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?eace 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 ca;ses 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. Hlstory.- 12, Nov ; RGS 3932; COL 5839.

7 MARRIED WOMEN'S PROPERTY Ch. 708 CHAPTER 708 MARRIED WOMEN'S PROPERTY Rights reserved under the Spanish laws Specific performance against married Right to separate property. woman Custody and management of such property Married women's rights; separate property Sales and conveyances Same; agreements with husband, power of Husband not liable for antenuptial debts attorney, etc. of wife Same; construction of law Right to wages and earnings 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 doubts m 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.t~e laws of Spain, observing only the formalities of conveyance required by any other laws established, or which may hereafter be established, in this state. History.- 1, Dec. 23, 1824; RS 2069; GS 2587; RGS 8946; CGL 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. History.- 1, 2, March 6, 1945; RS 2070; GS 2588; RGS 3947; CGL 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 ' ' ct through 62.46, Removal of dtsabllltles 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 choses in action. History.- 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. History.- 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. Hlstory 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 o:! 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. Hlstory.- 1, ch , cf , Right to sue Individually through 62.46, Removal of disabilities of married women et seq., Conveyances of real property , Conveyance between husband and wife , Requiring joinder of husband Married women's acknowledgments.

8 Ch. 708 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 execute 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 of 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. Hlstor;r.- 1, ch , and ~ cb , 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. Hlstoey.- 3, cb ,

9 POWERS OF ATTORNEY AND SIMILAR INSTRUMENTS Ch. 709 CHAPTER 709 POWERS OF A '!TORNEY AND SIMILAR INSTRUMENTS ' Power or attorney; authority of nominee when principal dead. ' Power of appointment; method of release. ' Same; property held in trust Power of attorney; authority of nominee when principal dead.-if any agent, constituted 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 suclt agent dealt bona fide, not knowing at the time.:>f 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 (Jr 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. Hlstory.- 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. Hlstory.- 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 s~ch 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. Hl&tory.- 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. History.- 4, ch , Same; powers included in law. Powers of appointment referred to in this law snail 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. History.- 7, ch , '8109

10 Ch. 710 GIFTS TO MINORS Short title. 7Hi.02 Definitions Manner of making gifts Effect of gift Duties and powers of custodian Custodian's expenses, compensation, bond and liabilities Short title.-this act may be cited as the Florida Gifts to Minors Act. History.-Comp. 11, ch Definitions.-In this act, unless the context otherwise requires: (1) An "adult" is a person who has attained the age of twenty-one years. (2) A "bank" is a bank, trust company, national banking association, saving or industrial bank. (3) A "broker" is a person lawfully engaged in the business of effecting transactions in securities for the account of others. The term includes a bank which effects such transactions. The term also includes persons lawfully engaged in buying and selling securities for his own account, through a broker or otherwise, as a part of regular business. ( 4) A "savings and loan association" is a savings and loan association organized under the laws of this state or the United States and located in this state. ' (5) "Court" means the circuit court. (6) The "custodial property" includes: (a) All securities and money under the supervision of the same custodian for the same minor as a consequence of a gift made to the minor in a manner prescribed by this act. (b) The income from custodial property; and (c) The proceeds, immediate and remote, from the sale, exchange, conversion, investment, reinvestment or other disposition of such securities, money and income. (7) A "custodian" is a person so designated in a manner prescribed by this act. (8) A "guardian" of a minor includes the general guardian, guardian, tutor or curator of his property, estate or person. (9) An "issuer" is a person who places or authorizes the placing of his name on a security (other than as a transfer agent) to evidence that it represents a share, participation or other interest in his property or in an enterprise or to evidence his duty or undertaking to perform an obligation evi.denced by the security, or who becomes responsible for or in place of any such person.. (10) A "legal re_p~esentative" of a person is his executor or admimstrator, general guardian guardian, committee, conservator, tutor or cu: rator of his property or estate. (11) A "member" of a "minor's family" means any of the minor's parents, grand parents, brothers, sisters, uncles and aunts, CHAPTER 710 GIFTS TO MINORS Exemption of third persons from liability Resignation, death or removal of custodian; bond; appointment of successor custodian Accounting by custodian Construction. whether of the whole blood or the half blood, or by or through legal adoption. (12) A "minor" is a person who has not attained the age of twenty-one years. (13) A "security" includes any note, stock, treasury stock, bond, debenture, evidence of indebtedness, (certificate of interest or participation in an oil, gas or mining title or lease or in payments out of production under such a title or lease), collateral trust certificate, transferable share, voting trust certificate or in general, any interest or instrument comm~nly known as a security, or any certificate of interest or participation in, any temporary or interim certificate, receipt or certificate of deposit for, or any warrant or right to subscribe to or purchase, any of the foregoing. The term does not include a security of which the donor is the issuer. A security is in "registered form" when it specificies a person entitled to it or to the rights it evidences and its transfer may be registered upon books maintained for that purpose by or on behalf of the issuer. (14) A "transfer agent" is a person who act~ as authenticating trustee, transfer agent, registrar or other agent for an issuer in the registration of transfers of its securities or in the issue of new securities or in the cancellation of surrendered securities. (15) A "trust company" is a bank authorized to exercise trust powers in Florida. Wstory.- 1, ch ; (4) n., subsequent subsections renum. by 1, ch Manner of making gifts.- (1) An adult person may, during his lifetime, make a gift of a security or money to a person who is a minor on the date of the gift:. (a). If the subject of the gift is a security m registered form, by registering it in the name of the donor, an adult member of the minor's family, a guardian of the minor or a trust company, ~allowed, in substance, by the words: "as custodian for under the Florida Gifts to Minors Act"; (b) If ~he subject of the gift is a security not m registered form, by delivering it to an adult member, other than the donor of the minor's family, a guardian of the mino~ or trust company, ::ccompani~d by a statement of gift in the followmg form, m substance, signed by the donor and the person designated as cutodian: "GIFT UNDER THE FLORIDA GIFTS TO MINORS ACT hereby delhers to (name of donor)

11 as custodian for (name of custodian) under the Florida Gifts to Minors Act, the following security (ies) : (insert an appropriate description of the securities or security delivered sufficient to identify it or them) (signature of donor) hereby acknow I edges (name of custodian) receipt of the above described security(ies) as custodian for the above minor under the Florida Gifts to Minors Act. Dated : " (signature of custodian) (c) If the subject of the gift is money, by paying or delivering it to a broker, savings and loan association, or a bank for credit to an account in the name of the donor, an adult member of the minor's family, a guardian of the minor or a bank with trust powers, followed, in substance, by the words: "as custodian for under the Florida Gifts to Minors Act." (2) Any gift made in a manner prescribed in subsection (1) may be made to only one minor and only to one person as custodian. (3) A donor who makes a gift to a minor in a manner prescribed in subsection (1) shall promptly do all things within his power to put the subject of the gift in the possession and control of the custodian, but neither the donor's failure to comply with this subsection, nor his designation of an ineligible person as custodian, nor renunciation by the person designated as custodian affects the consummation of the gift. History.- 2, ch ; (1) (c) a. by 2. ch GIFTS TO MINORS Ch Effect of gift.- (1) A gift made in a manner prescribed in this act is irrevocable and conveys to the minor indefeasible vested legal title to the security or money given, but no guardian of the minor has any right, power, duty or authority with respect to the custodial property except as provided in this act. (2) By making a gift in a manner prescribed in this act, the donor incorporates in his gift all the provisions of this act and grants to the custodian, and to any issuer, transfer agent, bank, broker, savings and loan association, or third person dealing with a person designated as custodian, the respective powers, rights and immunities provided in this act. History.- 3, ch ; (2) a. by 3, ch Duties and powers of custodian. (!) The custodian shall collect, hold, manage, invest and reinvest the custodial property. (2) The custodian shall pay over to the minor for expenditure by him, or expend for the minor's benefit, so much of or all the custodial property as the custodian deems advisable for the support, maintenance, education and benefit of the minor in the manner, at the time or times, and to the extent that the custodian in his discretion deems suitable and proper, with or without court order, with or without regard to the duty of himself or of any other person to support the minor or his ability to do so, and with or without regard to any other income or property of the minor which may be applicable or available for any such purpose. (3) The court, on the petition of a parent or guardian of the minor or of the minor, if he has attained the age of fourteen years, may order the custodian to pay over to the minor for expenditure by him or to expend so much of or all the custodial property as is necessary for the minor's support, maintenance or education. ( 4) To the extent that the custodial property is not so expended, the custodian shall deliver or pay it over to the minor on his attaining the age of twenty-one years or, if the minor dies before attaining the age of twenty-one years, he shall thereupon deliver or pay it over to the estate of the minor. (5) The custodian, notwithstanding statutes restricting investments by fiduciaries, shall invest and reinvest the custodial property as would a prudent man of discretion and intelligence who is seeking a reasonable income and the preservation of his capital, except that he may, in his discretion and without liability to the minor or his estate, retain a security given to the minor in a manner prescribed in this act. (6) The custodian may sell, exchange, convert or otherwise dispose of custodial property in the manner, at the time or times, for the price or prices and upon the terms he deems advisable. He may vote in person or by general or limited proxy a security which is custodial property. He may consent, directly or through a committee or other agent, to the reorganization, consolidation, merger, dissolution or liquidation of an issuer, a security which is custodial property, and to the sale, lease, pledge or mortgage of any property by or to such an issuer, and to any other action by such an issuer. He may execute and deliver any and all instruments in writing which he deems advisable to carry out any of his powers as custodian. (7) The custodian shall register each security which is custodial property and in registered form in the name of the custodian, followed, in substance, by the words: "as custodian for under the Florida Gifts to Minors Act." The custodian shall hold all money which is custodial property in an account with a broker, savings and loan association, or in a bank in the name of the custodian, followed, in substance, by the words: "as custodian for under the Florida Gifts to Minors Act." The custodian shall keep all other custodial property separate and distinct from his own property in a manner to identify it clearly as custodial property. (8) The custodian shall keep records of all transactions with respect to the custodial prop-

12 Ch. 710 GIFTS TO MINORS erty and keep them available for inspection at reasonable intervals by a parent or legal representative of the minor or by the minor, if he has attained the age of fourteen years. (9) A custodian has and holds as powers in trust, with respect to the custodial property, in addition to the rights and powers provided in this act, all the rights and powers which a guardian has with respect to property not held as custodial property. Hlstory.- 4, ch ; (7) a. by 4, ch Custodian's expenses, compensation, bond and liabilities.- (1) A custodian is entitled to reimbursement from the custodial property for his reasonable expenses incurred in the performance of his duties. (2) A custodian may act without compensation for his services. (3) Unless he is a donor, a custodian may receive from the custodial property reasonable compensation for his services as directed by the donor when the gift is made. ( 4) Except as otherwise provided in this act, a custodian shall not be required to give a bond for the performance of his duties. (5) A custodian is not liable for losses to the custodial property unless they result from his bad faith, intentional wrongdoing or gross negligence or from his failure to maintain the standard of prudence in investing the custodial property provided in this act. Hlstory.-Comp. 5, ch Exemption of third persons from lia bility.- N o issuer, transfer agent, bank, broker, savings and loan association or other person acting on the instructions of or otherwise dealing with any person purporting to act as a donor or in the capacity of a custodian is responsible for determining whether the person designated by the purported donor or purporting to act as custodian has been duly designated or whether any purchase, sale or transfer to or by or any other act of any person purporting to act in the capacity of custodian is in accordance with or authorized by this act, or is obliged to inquire into the validity or propriety under this act of any instrument or instructions executed or given by a person purporting to act as a donor in the capacity of a custodian, or is bound to see to the application by any person purporting to act in the capacity of a custodian of any money or other property paid or delivered to him. mstory.- 6, ch ; 5, ch Resignation, death or removal of custodian; bond; appointment of successor custodian.- (1) Only an adult member of the minor's family, a guardian of the minor or a trust company is eligible to become successor custodian. A successor custodian has all the rights, powers, duties and immunities of a custodian designated in a manner prescribed by this act. (2) A custodian may petition the court for permission to resign and for the designation of a successor custodian. (3) If a person designated as custodian is not eligible, renounces or dies before the minor attains the age of twenty-one years, the guardian of the minor shall be successor custodian. If the minor has no legal guardian, a donor, his legal representative, the legal representative of the custodian, the natural guardian of the minor, the minor's legal representative, an adult member of the minor's family, or the minor, if he has attained the age of fourteen years, may petition the court for the designation of a successor custodian. (4) A donor, the legal representative of a donor, an adult member of the minor's family, a guardian of the minor or the minor, if he has attained the age of fourteen years, may petition the court that, for cause showr, in the petition, the custodian be removed and a successor custodian be designated or, in the alternative, that the custodian be required to give a bond for the faithful performance of his duties. (5) Upon the filing of a petition as provided in this section the circuit court shall issue an order, directed to the custodian and returnable on such notice as the court may require, to show cause why the relief prayed for in the petition should not be granted and, in due course, grant such relief as the court finds to be in the best interest of the minor. mstory.-comp. 7, ch Accounting by custodian.- (1) The minor, if he has attained the age of fourteen years, or the legal representative of the minor, an adult member of the minor's family, or a donor or his legal representative may petition the court for an accounting by the custodian or his legal representative. (2) The court, in a proceeding under this act or otherwise, may require or permit the custodian or his legal representative to account and, if the custodian is removed, shall so require and order delivery of all custodial property to the successor custodian and the execution of all instruments required for the transfer thereof. Hlstory.-Comp. 8, ell Construction.-This act shall be so construed as to effectuate its general purpose to make uniform the law of those states which enact it. This act shall not be construed as providing an exclusive method for making gifts to minors. Hlstory.-Comp. fd, ch. 17-U. 3112

13 " Title to personal property found in public places. " Prohibiting recovery from seller of forfeited deposit or down payment made by check, draft or obligation refused through no fault of seller Title to personal property found in public places.-the title to all personal property 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 re -ceive 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 be vested in the transportation system and not in the employee. Hlstory.- 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 purebaser shall be construed to be a deposit and the action shall not be maintained by any person against the seller by reason there -of, 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. Hlstory.- 1, ch , Am. 11, ch , 194S Laundries and dry cleaners; disposition of unclaimed articles.-if any person shall fail to claim any garment, clothing, household article or other articles delivered for laundering, cleaning, or pressing to any laundry or dry cleaning establishment for a period of six months after the delivery of such article for laundering, cleaning or processing the laundry or dry cleaning establishment to whom the garment, clothing or household article is delivered shall have the right to dispose of such garment, clothing or household article by whatsoever PROPERTY GENERALLY Ch. 715 CHAPTER 715 'PROPERTY GENERALLY Laundries and dry cleaners; disposition of unclaimed articles Pawnbrokers; disposition of pledged property for nonpayment of principal or interest. means it may choose without incurring liability or responsibility to the owner provided, however, that before such laundry or dry cleaning establishment may claim the benefits of this section it shall at the time of the receiving of such garment, clothing or household articles, give to the individual delivering such article notice in writing that the articles so delivered may be disposed of by such laundry or dry cleaning establishment unless such articles are reclaimed within six months from date of delivery to such laundry or dry cleaning establishments. Provided, further, that if any garment, clothing, household article or other articles referred to above is left at a laundry or dry cleaning establishment for storage, and insurance is charged for thereon, then, in that event, the said six months as set forth above in this section shall not start to run until the period for which the article so insured has expired and when the time for which the insurance on said garment, clothing or household article shall have expired then the laundry or dry cleaning establishment may dispose of the property as though no insurance had been placed on said property in the same way as is provided herein above in this section. History.-Comp. 1, ch Pawnbrokers; disposition of pledged property for nonpayment of principal or inter est.- (1) Any article or articles placed with a licensed pawnbroker within this state pledged as security for a loan of money shall be subject to sale and disposal at public or private sale when there has been no payment on account of principal or interest made for a period of six months, subject to the provisions of this section. (2) Every pawn ticket or receipt for such pledge shall have printed thereon the provisions of subsections (1) and (2) this section which shall constitute notice to the pledgor of such sale and disposal and shall further constitute notice of intention to sell and dispose of the property without further notice to the pledgor, and shall further constitute consent to such sale by the pledgor. Any sale or disposal of property under this section shall terminate all liability of the pledgee to the pledgor and shall vest in a purchaser the right, title and interest of the pledgor and pawnbroker. Hlstory.-Comp. 1, 2, ch

14 Ch. 716 ESCHEATS, FORFEITURE, ETC Declaration of policy Escheat of funds in the possession of federal agencies Comptroller may recover federal funds Jurisdiction. CHAPTER 716 ESCHEATS, FORFEITURE, E Tc Money recovered to be paid into the state treasury Public records Recovery of escheated property by claimant Declaration of policy.-it is hereby other property had its situs or source in this declared to be the policy of the state, while state, except as hereinafter provided in subsection (4) of this section, the sender of which is protecting the interests of the owners thereof, to possess all unclaimed and abandoned money unknown, or who sent the money or other property for an unknown purpose, or money which is and property for the benefit of all the people of the state, and this law shall be liberally credited as "unknown", and which said governmental agency is unable to credit to any par construed to accomplish such purpose. Hlstory.- 1, ch , ticular account, or the sender of which has been unknown for a period of five or more consecu Escheat of funds in the possession of tive years; or when known, has died without federal agencies.-all property within the pro- having disposed thereof, and without leaving visions of subsections (1), (2), (3), (4) and (5) heirs, next of kin or distributees, or for any of this section, are declared to have escheated, reason is unclaimed from such governmental or to escheat, including all principal and inter- agency. est accruing thereon, and to have become the ( 4) In the event any money is due to any property of the state. resident of this state as a refund, rebate or (1) All money or other property which has tax rebate from the United States commissioner remained in, or has been deposited in the cus- of internal revenue, the United States treasurer, tody of, or under the control of, any court of or other governmental agency or department, the United States, in and for any district which said resident will, or is likely to have his within this state, or which has been depos- rights to apply for and secure such refund or ited with and is in the custody of any deposi- rebate barred by any statute of rimitations or, tory, registry, clerk or other officer of such court, in any event, has failed for a period of one year or the United States treasury, which money or after said resident could have filed a claim for other property the rightful owner or owners said refund or rebate, the comptroller of Florthcreof, either: ida is hereby appointed agent of such resident (a) Has been unknown for a period of five to demand, file and apply for said refund or reor more consecutive years; or, bate, and is hereby appointed to do any act (b) Has died, without having disposed which a natural person could do to recover said thereof, and without having left heirs, next of money, and it is hereby declared that when the kin or distributees, or comptroller files said application or any other (c) Has made no demand for such money or proceeding to secure said refund or rebate, his other property for five years; are declared to agency is coupled with an interest in the money have escheated, or to escheat, together with all sought and money recovered. interest accrued thereon, and to have become (5) It is the purpose of this chapter to inthe property of the state. elude all funds or other property in the pos- (2) After June 16, 1947, all money or other session of the government of the United States, property which has remained in, or has been and of its departments, officers, and agencies, deposited in the custody of, or under the control which property has its situs in this state or of, any court of the United States, in and for belonged to a resident thereof, and not to any district within this state, for a period of limit the application of this chapter by the four years, the rightful owner or owners of naming of any particular agency. This chapter which, either: shall include all funds held in the veterans ad- (a) Shall have been unknown for a period ministration, comptroller of currency, United of four years; or, States treasury, department of internal revenue, federal courts, registry of federal courts, and (b) Shall have died without having dis- such evidences of indebtedness as adjusted servposed thereof, and without having left or with- ice bonds, old matured debts issued prior to out leaving heirs, next of kin or distributees; or, 1917, unclaimed and interest thereon, postal (c) Shall have failed within four years to savings bonds, liberty bonds, victory notes, demand the payment or delivery of such funds treasury bonds, treasury notes, certificates of or other property; is hereby declared to have indebtedness, treasury bills, treasurer's savings escheated, or to escheat, together with all inter- certificates, bonuses and adjusted compensation, est accrued thereon, and to have become the allotments, and all unclaimed refunds or rebates property of the state. of whatever kind or nature, which are subjects (3) All money or other property which has of escheat, under the terms of this chapter. Proremained in, or has been deposited in the cus- vided, however, that nothing in this chapter tody of, or under the control of any officer, de- shall be construed to mean that any funds now partment or agency of the United States for five held or controlled by the United States postal or more consecutive years, which money or savings deposits or any refunds due ratepayers 3114

15 ESCHEATS, FORFEITURE, ETC. Ch. 716 under order of any court of the United States 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 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 for an adjudication that an escheat to the state of such funds or property has occurred; and shall take appropriate action to recover such funds or property. History.- 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, 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, 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, with costs, disbursements and attorney fee. Hlstory.- 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, to be distributed in accordance with law. Hlstory.- 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. History.- 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 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 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, naming therein the treasurer and the comptroller of the state 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 the state or any officer thereof, for or on account of said money, property or funds. History.- 7, ch ,

16 Ch. 717 DISPOSITION OF UNCLAIMED PROPERTY Short title Definitions and use of terms Property held by banking or financial organizations Unclaimed funds held by insurance corporations Deposits and refunds held by utilities Undistributed dividends and distribution of business associations Property of business associations and banking or financial organizations held in course of dissolution Property held by fiduciaries Property held by state courts and public officers and agencies Miscellaneous personal property held for another person Reciprocity for property presumed abandoned or escheated under the laws of another state Report of abandoned property Notice and publication of lists of abandoned property Short title.-this act may be cited as the Florida disposition of unclaimed property act. Hlstory ch Definitions and use of terms.-as used in this act, unless the context otherwise requires: (1) "Banking organization" means any bank, trust company, savings bank, industrial bank, land bank, safe deposit company. (2) "Business association" means any corporation, joint stock company, business trust, partnership, or any association for business purposes of two or more individuals. (3) "Financial organization" means any savings and loan association, building and loan association, credit union, cooperative bank, or investment company, engaged in business in this state. ( 4) "Holder" means any person in possession of property subject to this act belonging to another, or who is trustee in case of a trust, or indebted to another on an obligation subject to this act. (5) "Insurance corporation" means any association or corporation transacting within this state the business of insurance on the lives of persons or insurance appertaining thereto, including, but not by way of limitation, endowments and annuities; disability, accident and health insurance; and property, casualty and surety insurance; as all said terms are defined in chapter 624, part V. (6) "Owner" means a depositor, or a person entitled to receive the funds as reflected on the records of the bank or financial organization, in case of a deposit, a beneficiary in case of a trust, a creditor, claimant, or payee in case of other choses in action, or any person having a legal or equitable interest in property subject to this act, or his legal representative. (7) "Person" means any individual, busi- CHAPTER 717 DISPOSITION OF UNCLAIMED PROPERTY Payments or delivery of abandoned property Relief from liabi:lity by payment or delivery Income accruing after payment or delivery Periods of limitation not a bar Sale of abandoned property Deposit of funds Claim for abandoned property paid or delivered Determination of claims Judicial action upon determination Election to take payment or delivery Examination of records Proceeding to compel delivery of abandoned property Administration Penalties Rules and regulations Effect of laws of other states Repeal. ness association, government or political subdivision, public corporation, public authority, estate, trust, two or more persons having a joint or common interest, or any other legal or commercial entity. (8) "Utility" means any person who owns or operates within this state, for public use, any plant, equipment, property, franchise, or license for the transmission of communications, for the production, storage, transmission, sale, delivery or furnishing of electricity, water, steam, or gas, or for the transportation of persons or property. (9) "Administrator" means the state comptroller. mstory.- 1, ch Property held by banking or finan cial organizations.-the following property held or owing by a banking or financial organization is presumed abandoned: (1) Any demand, savings, or matured time deposit made in this state with a banking organization, together with any interest or dividend thereon, excluding any charges that may lawfully be withheld, unless the owner has, within fifteen years : (a) Increased or decreased the amount of the deposit, or presented the passbook or other similar evidence of the deposit for the crediting of interest; or (b) Corresponded in writing with the banking organization concerning the deposit; or (c) Otherwise indicated an interest in the deposit as evidenced by a memorandum on file with the banking organization. (2) Any funds paid in this state toward the purchase of shares or other interest in a financial organization, or any deposit made therewith in this state, and any interest or dividends thereon, excluding any charges that may lawfully be withheld, unless the owner has within fifteen years : 3116

17 (a) Increased or decreased the a~nount of the funds or deposit, or presented an appropriate record for the crediting of interest or dividends; or (b) Corresponded in writing with the financial organization concerning the funds or deposit; or (c) Otherwise indicated an interest in the fund or deposit as evidenced by a Ineinoranduin on file with the financial organization. (3) Any suin payable on checks certified in this state or on written instruinents issued in this state on which a banking or financial organization is directly liable, including by way of illustration but not of li~nitation, certificates of deposit, drafts, and traveler's checks, that has been outstanding for Inore than fifteen years froin the date it was payable, or froin the date of its issuance if payable on deinand, unless the owner has within fifteen years corresponded in writing with the banking or financial organization concerning it, or otherwise indicated an interest as evidenced by a Ineinoranduin on file with the banking or financial organization. ( 4) Any funds or other personal property, tangible or intangible, reinoved froin a safe deposit box or any other safekeeping repository, or agency or collateral deposit box, in this state on which the lease or rental period has expired due to nonpayinent of rental charges or other reason, or any surplus a~nounts arising froin the sale thereof pursuant to law, that have been unclai~ned by the owner for Inore than fifteen years froin the date on which the lease or rental period expired. Wstory.- 2, ch Unclaimed funds held by insurance corporations.- ( I) LIFE INSURANCE.- (a) UnclaiJned funds, as defined in this subsection, held and owing by a life insurance corporation shall be presu~ned abandoned if the last known address, according to the records of the corporation, of the person entitled to the funds is within this state. If a person other than the insured or annuitant is entitled to the funds and no address of such person is known to the corporation or if it is not definite and certain froin the records of the corporation what person is entitled to the funds, it is presujned that the last known address of the person entitled to the funds is the same as the last known address of the insured or annuitant according to the records of the corporation. (b) Unclaimed funds as used in subsection (1), means all moneys held and owing by any life insurance corporation unclaimed and unpaid for more than fifteen years after the moneys become due and payable as established from the records of the corporation under any life or endowment insurance policy or annuity contract which has ~natured or terminated. A life insurance policy not ~natured by actual proof of the death of the insured is deemed to be matured and the proceeds thereof are deemed to be due and payable if such policy DISPOSITION OF UNCLAIMED PROPERTY Ch was in force when the insured attained the limiting age under the Inortality table on which the reserve is based, unless the person appe.aring entitled thereto has within the precedmg fifteen years, 1. Assigned, readjusted, or paid preiniums on the policy, or subjected the policy to loan, _or 2. Corresponded in writing with the. hfe insurance corporation concerning the pohcy. (2) INSURANCE OTHER THAN LIFE IN SURANCE.- (a) Unclaimed funds as defined in subsection (1), held and owing by. a fire, casualty or surety insurance corporation shall be presumed abandoned if the last known a?dress according to the records of the c?rpo:at~on,?f the person entitled to the funds Is withm th1s state. If a person other than the insured, the principal, or the clai~nant is entitled to t~e to the funds and no address of such person ls known to the corporation or if it is not definite and certain froin the records of the corp? ration what person is entitled to the funds, 1t is presumed that the last kno:wn address of the person entitled to the funds IS the saine as. th.e last known address of the insured, the prmclpal, or the claimant according to the records of the corporation.. (b) Unclaimed funds as used m subs.ection (2), means all moneys ~eld and owmg by any fire, casualty or suret;v msurance corporation unclaiined and unpa1d for more than fifteen years after the Inoneys becojne due and payable as established froin the reco:ds. of the corporation either to an insured, a prmc1pal, or a claimant under any fire, casualty or surety insurance policy or contract. (3) Moneys otherwise payable according to the records of the corporation are deemed due and payable although the policy or contract has not been surrendered as required. Hlstory.- 3, ch Deposits and refunds held by utilities.~the following funds held or owing by any utility are presu~ned abandoned: (1) Any deposit made by a subscriber wi~h a utility to secure payment for, or any suin pa1d in advance for utility services to be furnished in this state, iess any lawful deductions, that has re~nained unclaimed by the person appearing on the records of the utility entitled thereto for Inore than fifteen years after the ter~nination of the services for which the deposit or advance payinent was Jnade. (2) Any suin which a utility! has been ordered to refund and which was received for utility services rendered in this state, together with any interest thereon, less any lawful deductions that has remained unclaimed by the person ;ppearing on the records of the utility entitled thereto for Inore than fifteen years after the date it became payable in accordance with the final determination or order providing for the refund. (3) Any sum paid to a utility for a utility

18 Ch. 717 DISPOSITION OF UNCLAIMED PROPERTY service, which service has not, within fifteen years of such payment, been rendered. mstory.- 4, ch Undistribu.ted dividends and distribution of business associations.-any stock or other certificate of ownership, or any dividend, profit distribution, interest, payment on principal, or other sum held or owing by a business association for or to a shareholder, certificate holder, member, bondholder, or other security holder, or a participating patron of a cooperative, who has not claimed it, or corresponded in writing with the business association concerning it, within fifteen years after the date prescribed for payment or delivery, is presumed abandoned if: (1) It is held or owing by a business association organized under the laws of or created in this state; or (2) It is. held or owing by a business association doing business in this state, but not organized under the laws of or created in this state, and the records of the business association indicate that the last known address of the person entitled thereto is in this state. History.- 5, ch Property of business associations and banking or financial organizations held in course of dissolution.-all intangible personal property distributable in the course of a voluntary dissolution of a business association, banking organization, or financial organization organized under the laws of or created in this state, that is unclaimed by the owner within fifteen years after the date for final distribution is presumed abandoned. Hlstory.- 5, ch Property held by fiduciaries.-all intangible personal property and any income or increment thereon, held in a fiduciary capacity for the benefit of another person is presumed abandoned unless the owner has, within fifteen years after it becomes payable or distributable, increased or decreased the principal, accepted payment of principal or income, corresponded in writing concerning the property, or otherwise indicated an interest as evidenced by a memorandum on file with the fiduciary: (1) If the property is held by a banking organization or a financial organization, or by a business association organized under the laws of or created in this state; or (2) If it is held by a business association, doing business in this state, but not organized under the laws of or created in this state, and the records of the business association indicate that the last known address of the person entitled thereto is in this state; or (3) If it is held in this state by any other person. History.- 7, ch Property held by state courts and public officers and agencies.-all intangible personal property held for the owner by any court, public corporation, public authority or public officer of this state, or a political subdivision thereof that has remained unclaimed by the owner for more than fifteen years is presumed abandoned. History.- 8, ch Miscellaneous personal property held for another person.-all intangible personal property, not otherwise covered by this act, including any income or increment thereon and deducting any lawful charges, that is held or owing in this state in the ordinary course of the holder's business and has remained unclaimed by the owner for more than fifteen years after it became payable or distributable is presumed abandoned. mstory.- 9, ch Reciprocity for property presumed abandoned or escheated under the laws of another state.-if specific property which is subject to the provisions of this act is held for or owed or distributable to an owner whose last known address is in another state by a holder who is subject to the jurisdiction of that state, the specific property is not presumed abandoned in this state and subject to this act if: (1) It may be claimed as abandoned or escheated under the laws of such other state; and (2) The laws of such other state make reciprocal provision that similar specific property is not presumed abandoned or escheatable by such other state when held for or owed or distributable to an owner whose last known address is within this state by a holder who is subject to the jurisdiction of this state. History.- 10, ch Report of abandoned property.- (1) Every person holding funds or other property, tangible or intangible, presumed abandoned under this act shall report to the administrator with respect to the property as hereinafter provided. (2) The report shall be verified and shall include: (a) The name, if known, and last known address, if any, of each person appearing from the records of the holder to be the owner of any property of the value of twenty-five dollars or more presumed abandoned under this act; 3118 (b) In case of unclaimed funds of life insurance corporations, the full name of the insured or annuitant and his last known address according to the life insurance corporation's records ; (c) The nature and identifying number, if any, or description of the property and the amount appearing from the records to be due, except that items of value under twenty-five dollars each may be reported in aggregate; (d) The date when the property became payable, demandable, or returnable, and the date of the last transaction with the owner with respect to the property; and (e) Other information which the adminis-

19 trator prescribes by rule as necessary for the administration of this act. (3) If the person holding property presumed abandoned is a successor to other persons who previously held the property for the owner, or if the holder has changed his name while holding the property, he shall file with his report all prior known names and addresses of each holder of the property. ( 4) The report shall be filed before November 1 of each year as of June 30 next preceding, but the report of insurance corporations shall be filed before May 1 of each year as of December 31 next preceding. The administrator may postpone the reporting date upon written request by any person required to file a report. (5) If the holder of property presumed abandoned under this act knows the whereabouts of the owner and if the owner's claim has not been barred by the statute of limitations, the holder shall, before filing the annual report, communicate with the owner and take necessary steps to prevent abandonment from being presumed. The h~lder shall exercise due diligence to ascertain the whereabouts of the owner. (6) Verification, if made by a partnership, shall be executed by a partner; if made by an unincorporated association or private corporation, by an officer; and if made by a public corporation, by its chief fiscal officer. (7) The initial report filed under this act shall include all items of property that would have been presumed abandoned if this act had been in effect during the ten year period preceding September 30, History.- 11, ch Notice and publication of lists of abandoned property.- (1) Within one hundred twenty days from the filing of the report required by , the administrator shall cause notice to be published at least once each week for two successive weeks in a newspaper of general circulation in the county in this state in which is located the last known address of any person to be named in the notice. If no address is listed or if the address is outside this state, the notice shall be published in the county in which the holder of the abandoned property has his principal place of business within this state. (2) The published notice shall be entitled "Notice of names of persons appearing to be owners of abandoned property," and shall contain: (a) The names in alphabetical order and last known addresses, if any, of persons listed in the report and entitled to notice within the county as hereinbefore specified. (b) A statement that information concerning the amount or description of the property and the name and address of the holder may be obtained by any persons possessing an interest DISPOSITION OF UNCLAIMED PROPERTY Ch in the property by addressing an inquiry to the administrator. (c) A statement that if proof of claim is not presented by the owner to the holder and if the owner's right to receive the property is not established to the holder's satisfaction within sixty-five days from the date of the second published notice, the abandoned property wi1l be placed not later than eighty-five days after such publication date in the custody of the administrator to whom all further claims must thereafter be directed. (3) The administrator is not required to publish in such notice any item of less than twenty-five dollars unless he deems such publication to be in the public interest. (4) Within one hundred twenty days from the receipt of the report required by , the administrator shall mail a notice to each person having an address listed therein who appears to be entitled to property of the value of twenty-five dollars or more presumed abandoned under this act. (5) The mail notice shall contain: (a) A statement that, according to a report filed with the administrator property is being held to which the addressee appears entitled. (b) The name and address of the person holding the property and any necessary information regarding changes of name and address of the holder. (c) A statement that, if satisfactory proof of claim is not presented by the owner to the holder by the date specified in the published notice, the property will be placed in the custody of the administrator to whom all further claims must be directed. History.- 12, ch Payments or delivery of abandoned property.-every person who has filed a report as provided by shall within twenty days after the time specified in for claiming the property from the holder pay or deliver to the administrator all abandoned property specified in the report, except that, if the owner establishes his right to receive the abandoned property to the satisfaction of the holder with the time specified in , or if it appears that for some other reason the presumption of abandonment is erroneous, the holder need not pay or deliver the property, which will no longer be presumed abandoned, to the administrator, but in lieu thereof shall file a verified written explanation of the proof of claim or of the error in the presumption of abandonment. History.- 13, ch Relief from liability by payment or delivery.-upon the payment or delivery of abandoned property to the administrator, the state shall assume custody and shall be responsible for the safekeeping thereof. Any person who pays or delivers abandoned property to the administrator under this act is relieved of all liability to the extent of the value of the property so paid or delivered for any claim which then exists or which thereafter may

20 Ch. 717 DISPOSITION OF UNCLAIMED PROPERTY arise or be made in respect to the property. Any holder who has paid moneys to the administrator pursuant to this act may make payment to any person appearing to such holder to be entitled thereto, and upon proof of such payment and proof that the payee was entitled thereto, the administrator shall forthwith reimburse the holder for the payment. History.- 14, ch Income accruing after payment or delivery.-when property is paid or delivered to the administrator under this act, the owner is not entitled to receive income or other increments accruing thereafter. History.- 15, ch Periods of limitation not a bar.-the expiration of any period of time specified by statute or court order, during which an action or proceeding may be commenced or enforced to obtain payment of a claim for money or recovery of property, shall not prevent the money or property from being presumed abandoned property, nor affect any duty to file a report required by this act or to pay or deliver abandoned property to the administrator. History.- 16, ch Sale of abandoned property.- (!) All abandoned property other than money delivered to the administrator under this act may be sold by him. Such sale shall be to the highest bidder at public sale in whatever place in the state affords in his judgment the most favorable market for the property involved. The administrator may decline the highest bid and re-offer the property for sale if he considers the price bid insufficient. He need not offer any property for sale if, in his opinion, the probable cost of sale exceeds the value of the property. (2) Any sale held under this section shall be preceded by a single publication of notice thereof, at least three weeks in advance of sale in a newspaper of general circulation in the county where the property is to be sold. (3) The purchaser at any sale conducted by the administrator pursuant to this act shall receive title to the property purchased, free from all claims of the owner or prior holder thereof and of all persons claiming through or under them. The administrator shall execute all documents necessary to complete the transfer of title. IDs tory.- 17, ch Deposit of funds.- (1) All funds received under this act, including the proceeds from the sale of abandoned property under shall forthwith be deposited by the administrator in the state school fund of the state, except that the administrator shall retain in a separate account an amount not exceeding one hundred thousand dollars from which he shall make prompt payment of claims duly allowed by him as hereinafter provided. Before making the deposit he shall record the name and last known address of each person appearing from the holders' reports to be entitled to the abandoned property and of the name and last known address of each insured person or annuitant, and with respect to each policy or contract listed in the report of an insurance corporation, its number, the name of the corporation, and the amount due. The record shall be available for public inspection at all reasonable business hours. (2) Before making any deposit to the credit of the state school fund, the administrator may deduct: (a) Any costs in connection with sale of abandoned property, (b) Any costs of mailing and publication in connection with any abandoned property. History.- 18, ch Claim for abandoned property paid or delivered.-any person claiming at any time an interest in any property delivered to the state under this act may file a claim thereto or to the proceeds from the s~le thereof on the form prescribed by the administrator. History.- 19, ch Determination of claims.- (1) The administrator shall consider any claim filed under this act and may hold a hearing and receive evidence concerning ~t. If a hearing is held, he shall prepare a findmg and a decision in writing on each claim filed, stating the substance of any evidence heard by him and the reasons for his decision. The decision shall be a public record. (2) If the claim is allowed, the administrator, shall make payment forthwith. The claim shall be paid without deduction for costs of notices or sale or for service charges. Wstory.- 20, ch Judicial action upon determination. -Any person aggrieved by a decision of the administrator or as to whose claim the administrator has failed to act within ninety days after the filing of the claim, may commence an action in the circuit court of the second judicial circuit in and for Leon county, to establish his claim. The proceeding shall be brought within ninety days after the decision of the administrator or within onp. hundred eighty days from the filing of the claim if the administrator fails to act. The action shall be tried de novo without a jury. History.- 21, ch Election to take payment or delivery. -The administrator, after receiving reports of property deemed abandoned pursuant to this act, may decline to receive any property reported which he deems to have a value less than the cost of giving notice and holding sale or he may, if he deems it desirable because of the small sum involved, postpone taking possession until a sufficient sum accumulates. History.- 22, ch

21 DISPOSITION OF UNCLAIMED PROPERTY Ch Examination of records.-the administrator may at reasonable times and upon rea.sonable notice examine the records of any person if he has reason to believe that such person has failed to report property that should.have been reported pursuant to this act. If any person refuses to permit the examination of his records, the administrator may issue subprena to compel such person to testify and produce his records; said subpama to be served by the. sheriff of the county where the person resides or may be found. Such person shall be entitled to the same per diem and mileage as witnesses appearing in the circuit court of the state which shall be paid by the state. If any person shall refuse to obey any subprena so issued or shall refuse to testify or produce his records the administrator may present his petition t~ the circuit court of the county where any such person is served with the subprena or where he resides, whereupon said court shall issue its rule nisi to such person requiring him to obey forthwith the subprena issued by the board or :Show cause why he fails to obey the same and unless the said person shows sufficient ~ause for failing to obey the said subprena the court shall forthwith direct such person t~ obey the same, and upon his refusal to comply he shall be adjudged in contempt of court and shall be punished as the court may direct. History.- 23, ch Proceeding to compel delivery of. abandoned property.-if any person refuses to -deliver property to the administrator as required under this act, he shall bring an action in a court of appropriate jurisdiction to enforce such delivery. mstory.- 24, ch Administration.- The administrator :Shall create a division of his office, to be known. as the abandoned property office, for the purpose of administering the provisions of this act and of chapter 716. An appropriation shall be made biennially for the maintenance of such office, and to provide sufficient staff to adequately enforce the provisions of this law. Other divisions of the office of the administrator, as well as all state officers and employees generally, shall assist in the enforcement of this act in connection with the performance of their normal duties. History.- 25, ch Penalties.- (1) Any person who wilfully fails to render any report or perform other duties required under this act, shall be punished as for a misdemeanor. (2) Any person who wilfully refuses to pay or deliver abandoned property to the administrator as required under this act shall be punished as for a misdemeanor. Hlstory.- 26, ch Rules and regu)ations.-the administrator is hereby authorized to make necessary rules and regulations to carry out the provisions of this act. Hlstory.- 27, ch Effect of laws of other states.-this act shall not apply to any property that has been presumed abandoned or escheated under the laws of another state prior to September 30, Hlstory.- 28, ch Repeal.-The following sections of Florida Statutes are hereby repealed: 69.07, and This act shall not repeal, but shall be additional and supplemental to the existing provisions of and , chapter 716, , and (4). History.- 30, ch Note.-The repeals cited in the section above did not appear in the title of eh

22 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. Hhtory.- 10, Nov. 15, 1828; RS 1995; GS 2517; RGS 8872; CGL cf Fraudulent sales. CHAPTER 725 UNENFORCEABLE CONTRACTS Newspaper subscription Contracts to sell personalty.- No contract for the sale of any personal property, goods, wares or merchandise shall 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 bind the bargain or in part payment, or some 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 Nov. 15, 1828; RS 1996; GS 2518; RGB 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, 1861; RS 1997; GS 2519; RGB 3874; CGL

23 FRAUDULENT CONVEYANCES, SALES, AND LOANS Ch. 726 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 r_evocation void Sale without notice to creditors presumed against subsequent purchasers. fraudulent Fraudulent loans void What sales deemed fraudulent; proviso Watches, used; sales regulated Fraudulent conveyances void.-every feoffment, gift, grant, alienation, bargain, sale, conveyance, transfer and assignment of lands, tenements, hereditaments, and of goods and chattels, or any of them, or any lease, rent, use, common or other profit, benefit or charge whatever out of lands, tenements, hereditaments or goods and chattels, or any of them, by writing or otherwise, and every bond, note, contract, suit, judgment and execution which shall at any time hereafter be had, made or executed, contrived or devised of fraud, covin, collusion or guile, to the end, purpose or intent to delay, hinder or defraud creditors or others of their just and lawful actions, suits, debts, accounts, damages, demands, penalties or forfeitures, shall be from henceforth as against the person or persons, or bodies politic or corporate, his, her or their successors, executors, administrators and assigns, and every one of them so intended to be delayed, hindered or defrauded, deemed, held, adjudged and taken to be utterly void, frustrate and of none effect, any pretense, color, feigned consideration, expressing of use or any other matter or thing to the contrary notwithstanding; provided, that this section, or anything therein contained, shall not extend to any estate or interest in lands, tenements, hereditaments, leases, rents, uses, commons, profits, goods or chattels which shall be had, made, conveyed or assured if such estate shall be, upon good consideration and bona fide, lawfully conveyed 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 the duty of.such vendor to furnish such statement, whether he be a wholesale or a retail merchant. History.- 1, ch. 5679, 1907; RGS 8865; CGL Notice to creditors by vendee. (1) Thereupon it shall be the duty of the purchaser, at least five days before the completion of said purchase, or the payment therfor, to notify personally or by registered mail, each of said creditors of the said proposed sale, the price to be paid therefor, and the terms and conditions thereof. (2) In counties having a population in excess of two hundred thousand inhabitants, according to the latest official state-wide decennial census, it shall be the duty of the purchaser to cause to be published one time in a daily newspaper in the county in which the vendor resides, not less than seven days prior to the completion of said purchase, a notice of intention to purchase, in substantially the following form: NOTICE OF INTENTION TO PURCHASE UN DER BULK SALES LAW TO ALL PERSONS HAVING CLAIMS OR DEMANDS AGAINST (Name of Business and Vendor) The undersigned intend (s) to purchase in bulk the stock of goods, wares or merchandise and/ or the business fixtures or equipment used in connection with that certain business or enterprise known as I oca ted at and to conclude such purchase on at and all persons having claims or demands against the vendor are admonished to notify the undersigned at that address on or before said date. Dated at: (Name of Purchaser) In the event such notice is not published by the purchaser, such sale or transfer shall be presumed to be fraudulent as to any and all creditors of the vendor. History.- 2, ch. 5679, 1907 ; RGS 3866; CGL 5773 ; (2) N. by 1, ch cf (13) defines registered mall to Include certified mall with return r eceipt requested. thereof, and if the vendor be a corporation, Sale without notice to creditors prethen from the managing officer or agent there- sumed fraudulent. -When any person shall of, a written statement under oath of the purchase any stock of goods, wares or mernames and addresses of all the creditors of chandise in bulk, and shall pay the price or said vendor, together with the amount of in- any part thereof, or execute or deliver to the debtedness due or owing by the said vendor vendor thereof, or to his order, or to any to each of such creditors; and it shall be person for his use, any promissory note, or 3123

24 Ch. 726 FRAUDULENT CONVEYANCES, SALES, AND LOANS other evidence of indebtedness, for said purchase price, or any part thereof, without having first demanded and received from said vendor the statement under oath mentioned in , and without first giving to each of the creditors whose names have been furnished by said vendor the notice provided for in , such sale or transfer shall, as to any and all creditors of the vendor, be presumed to be fraudulent. Hlstory.- 3, ch. 5679, 1907; RGS 3867; CGL cf (13) defines registered mall to Include certified mall with return receipt requested 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 conducted 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 contemplation of ; provided, that nothing contained in said sections shall apply to sales by executors, administrators, receivers or any public officer under judicial process. Hlstory.- 5, ch. 5679, 1907; RGS 3868; CGL Punishment for making false statements to vendee of 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 made or delivered, any false statement or any statement of which any material portion is false, or shall fail to include the names of all his creditors in any such statement, as is required in , 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 for not more than six months. 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 of, 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 pa!'t thereof, so formerly conveyed, granted, leased, charged, transferred, assigned, encumbered or limited in use, shall be deemed, adjudged, taken and held as against the person or persons, bodies politic or corporate, their heir::~, successors, executors, administrators and assigns, and against ail and every person and persons lawfully having or claiming by, from, through or under them, or any of them who shall have 3124 so purchased for money or other good consideration the same lands, tenements or hereditaments, 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, feigned 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, assurance, grant, charge, lease, estate, interest or limitation, or use or uses of, in, to or out of any lands, tenements or hereditaments, which shall be made upon and for good consideration and bona fide, to any person or persons, bodies politic or corporate, anything in this section to the contrary notwithstanding. Hlotory.- 2, Jan. 28, 1828; RS 19g2; GS 2514; RGS 3869; CGL Conveyances with power of revocation void against subsequent purchasers. -If any person or persons shall make any conveyance, gift, grant, demise, charge, limitation of use or uses, or assurance of, in or out nf 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 conveyance, gift, assurance, grant, demise, 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 hereditaments, 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, through, from or under them, or any of them, shall be deemed, taken and adjudged to be void and of none effect. Hlstory.- 3, Ja.n. 28, 1823; RS 1993; GS 2515; RGS 8870; CGL 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

25 FRAUDULENT CONVEYANCES, SALES, AND LOANS Ch. 726 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 an other as aforesaid, the same shall be taken, as to the creditors and purchasers of the per '!ons aforesaid so remaining in possession, to 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 by 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 exchange, 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 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 distinguishing 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 shall 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 ,

26 Ch. 727 GENERAL ASSIGNMENTS CHAPTER 727 GENERAL ASSIGNMENTS ' To be in writing and to contain no preferences Disposition of property Notice of assignment. ' Oath of assignor Semiannual statements. ' Record of assignment and oath Application for discharge of assignee. 'f27.04 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. Hlstory.- 1, 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. Hlstory.- 2, ch. 3891, 1889; RS 2308; GS 2927; RGS 4662.; 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. Hlstory.- 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. History.- 4, eh. 3891, 1889; RS 2310; 4669; CGL GS 2929; RGS Notice of assignment.-said assignee immediately upon taking possession of the as- 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. Hlstory.- 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. Hlstory.- 7, ch. 3891, 1889; RS 2312; GS 2931; RGS 4671; CGL Semiannual statements.-8emiannually, 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. History.- 8, ch. 3891, 1889; RS 2313; GS 2932; RGS 4672; CGL 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 shall then grant him such letters as prayed for. History.- 9, ch. 3891, 1889; RS 2314; GS 2938; RGS 4673; CGL

27 Short title Application Definitions Who may make a will Property which may be devised Agreements to make a will, requirements Requisites of nuncupative wills Execution of wills Effect of fraud, duress, mistake or undue influence Revocation by fraud Marriage after execution of will Will void as affecting surviving divorced spouse Children born after execution of will Implied revocation by subsequent inconsistent will Revocation by written instrument Other revocation Revival by revocation Revocation of 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. 6457(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 decedents 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. 6467(2); am. 1, ch , Definitions.-ln 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 administration 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 property 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 TITLE XLI ESTATES OF DECEDENTS CHAPTER 731 FLORIDA PROBATE LAW, FIRST PART 3127 ' Republication of wills by codicil Republication of wills by re-exectltion 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 Adopted child 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" means letters of administration 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, choses in action, or any interest in the same, legal or equitable.

28 Ch. 731 FLORIDA PROBATE LAW, FIRST PART (16) The words "attesting witnesses" and the words "subscribing witnesses" as used in these statutes shall have the same meaning, and no witness shall be considered an attesting witness or a subscribing witness to a will unless he actually signs his name to such will. History.- 3, ch , 1933; CGL 1936 Supp. 5457(3); 1, ch , 1945; sub. (16) comp. 1, ch , 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. History.- 5, ch , 1983; CGL 1936 Supp. 5477(1); am. 1, ch , Property which may be devised. (1) 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 law 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 unless the testator expressly states in his will that such is not his intention. Hlstory.- 6, ch , 1933; CGL 1986 Supp. 5477(2); am. 1, ch , cf , Life Insurance , Homestead , Dower Agreements to make a will, require ments.- (1) No agreement to make a will of real or personal property or to give a legacy or make a devise shall be binding or enforceable unless such agreement is in writing signed in the presence of two subscribing witnesses by the person whose executor or administrator is sought to be charged. (2) This section shall apply to agreements made on, after or prior to January 1, Hlstory.-Comp. 1, ch 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. History.- 7, ch , 1933; CGL 1936 Supp. 5477(3); am. 1, ch , cf.- 73l!.39, , Time of proof and probate Execution of wills.-every will, other 3128 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 statt> 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 establishecl (6) No particular form of words is necessary to the validity of a will if it is executed according 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. 5477(4); am. 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. Hlstor7.- 9, ch , 1933; CGL 1936 Supp. 5477(5); am. l. 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 surviving 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 be

29 raised in accordance with the order of appropriation of assets set forth in this law. History.-~11, ch , 1933; CGL 1936 Supp. 6477(7); am. 1, ch , l 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. mstory.- 1, ch , 1951; tr. from , 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 omission 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. History.- 12, ch , 1933; CG L 1936 Supp (8) ; a.m. 1, ch , 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); a.m. 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. History.- 14, ch , 1933; CGL 1936 Supp. 5477(10); a.m. 1, ch , Other revocation.- (!) 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. History.- 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. History.- 16, ch , 1933; CGL 1936 Supp. 6477(12); am. 1, ch , FLORIDA PROBATE LAW, FIRST PART Ch Revocation of codicil.-the revocation of a will revokes all codicils thereto previously made. History.- 17, ch , 1933; CGL 1936 Supp. 6477(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. History.- 18, ch , 1933; CGL 1936 Supp. 6477(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 re-execution of the same with the formalities required by this law for the execution of wills. History.- 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 devise or bequest shall be avoided in its entirety within eight months from the death of the testator by one or more of the above specified persons who would receive any interest in the. devise or bequest so avoided, by filing written notice thereof in the probate proceedings unless said will was duly executed at least six months prior to the death of the testator, or unless t estator, by his will duly executed immediately next prior to such last will and more than six months before his death, made a valid charitable bequest or devise in substantially the same amount for the same purpose or to the same beneficiary, or to a person in trust for the same person or beneficiary as was made in such last will. The making of a codicil within the six-months period before testator's death, which codicil does not substantially change a charitable devise or bequest as herein defined, shall not render such charitable gift ineffective under this section. This section shall not be construed to apply to devises or bequests made to institutions of higher learning. History.- 20, ch , 1933; CGL 1936 Supp. 6477(16); am. 1, ch , 1945; 1, ch Lapsed or void legacies or devises. (1) 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

30 Ch. 731 FLORIDA PROBATE LAW, FIRST PART 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. History.- 21, ch , 1933; CGL 1936 Supp. 6477(17); 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; CGL 1936 Supp. 6477(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. (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, 3130 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. History.- 24, ch , 1933; CGL 1936 Supp. 6480(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. Histor:r.- 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. History.- 26, ch , 1933; CGL 1936 Supp. 6480(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. History.- 27, ch , 1933; CGL 1936 Supp. 6480(4); am. 1, ch , cf ()5, Uniform simultaneous law Descent of homesteads.-the homestead shall descend as other property; provided, nowever, 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. History.- 28, ch , 1933; CGL 1936 Supp. 6480(6); am. 1. ch , cf , Administration of exempt estates Alien.- (1) 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. (2) When the county judge determines that any alien legatee, devisee, heir, beneficiary or distributee not residing within the territorial limits of the United States or any territory or possession thereof would not have the benefit or use or control of property due him and that special circumstances make it desirable that delivery to him be deferred, the county judge may order that such property be converted into available funds and paid into the state treasury,

31 after such attorney's fees of the attorney for such legatee, devisee, heir, beneficiary or distributee, as the court shall set, have been paid therefrom, and said funds held in the state treasury subject to such further orders as the said court may enter. History.- 29, ch , 1933; CGL 1936 Sapp. 6480(6); am. 1, ch , 1945 ; (2) n. by 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 same 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 have 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. Hist ory.- 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 regarded as a lineal descendant of his adopting parents, and the adopting 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 inheritance from or by them. The adopted child shall inherit the est ate of his blood parents, but his blood parents shall not inherit from the adopted child. Hlstory.- 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. Hlstory.- 32, ch , 1933; CGL 1936 Supp (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), FLORIDA PROBATE LAW, FIRST PART Ch all the right, title and interest of the state 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 same shall be held to apply to all cases wherein the parties were known as husband and wife. Blstory.-RS 1829; OS 2305; 33, ch , 1933; COL 1938 Supp. 5480(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. (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. If the personal representative f ails to institute such proceeding within the time herein fixed, the same may be institu.ted 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 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 to such property and the proceeds thereof shall become absolute. (5) The attorney general shall represent the state in all proceedings with respect to escheated estates.

32 Ch. 731 FLORIDA PROBATE LAW, FIRST PART (6) Except as herein provided, escheated estates shall be administered as in other cases. Hlstory.- 33, ch , 1933; CGL 1936 Supp. 5480(10), am. 1, ch , 1943; am. 1, ch , cf , Determination of beneficiaries , Disposition or unclaimed funds Dower in realty and personalty. Whenever the widow of any decedent shall not be satisfied with the portion of the estate of her bus band 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 rea~ properg which was owned by her husband at the tlme of h1s 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 homestea_d 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. History.- 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 , 1, ch , 1945; 1, ch , 1951; am. 1, ch , cf , Possession of estate during admlnlstratlon , 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 acknowledgments or to administer oa~hs, and. fil~d, within nine months after the f1rst pubhcatwn 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) Should the county judge extend the time in which creditors may file their claims, or should litigation occur involving the admission of the will to probate, or its validity or the construction thereof, or should any claim filed be contested, a widow shall have sixty days from the date to which such extension for filing claims is extended or from the date of a final judgment determining any litigation or contested claim or from the time allowed to the personal representative for filing his objection to any claim, in which to elect to take dower. (3) 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 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. Hlstory.- 36, ch , 1933; CGL 1936 Supp. 6607(2); 1, ch , 1945; 1, ch , 1951; (3) N. by 1, ch ; 1, 2, 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. Hlsto..,..- 37, ch , 1933; CGL 1938 Supp. 6607(8); am. 1, ch ,

33 FLORIDA PROBATE LAW, SECOND PART Ch. 732 CHAPTER 732 FLORIDA PROBATE LAW, SECOND PART ' Jurisdiction of county judge Foreign probate prior to local probate of ' Court always open. estate of resident decedent prohibited. ' Power to enforce judgments Probate of notarial will. ' Disqualification of county judge Effect of probate of will after foreign probate and of notarial will. ' Substitution of circuit judge. ' Venue of probate proceedings Time of proof of nuncupative will. ' County judge's records Probate o! nuncupative will. ' Pleadings Construction of will by probate court. ' Citation and service Construction of wills by courts of equity. ' Service or publication when not otherwise Petition for letters of administration. provided Preference in appointment of ar;lministrator Duty to designate residence and post-office Individuals who may be appointed personal address. representatives; resident agents. ' Testimony and subpoenas Minor not qualified. ' Depositions Nonresidents. ' Costs Married woman Right of appeal Trust companies and other corporations Appeals to the circuit court; parties Joint executors and administrators Dismissal of appeals to circuit court Effect of appointment of debtor or creditor Appeal to the circuit court amendable Appeals to the supreme court. Succession of administration. ' Supersedeas Executor de son tort. ' Curators Guardian ad litem. ' Production of wills AdministTator ad litem. 732:23 Petition for probate of will Recovery of judgment; proceedings Proof of wills Judgment in favor of personal representative Commission to prove will. ' Effect of probate Compensation of administrator ad litem Establishment and probate of lost or destroyed will Oaths and affidavits Oath of personal representative. ' Notice of probate Bond of personal representative Educational, charitable, and religious beneficiaries to be notified Bond by a surety company Caveat; proceedings Bond required of executor Revocation of probate Insufficiency of bond Burden of proof in contests Liability of surety. ' Discovery of lat-er will County judge to act on his own motion Discovery of will after settlement of estate Informality of bond Probate of will written in foteign language Release of surety Probata of will of resident after foreign pro County judge may reduce bond. bate Jurisdiction of county judge.-the in all instances in which judges generally are so county judge shall have jurisdiction of the ad- disqualified and also in estates in which he is an ministration, settlement and distribution of es- heir of the decedent or is a legatee, devisee, trustates of decedents, of the probate of wills, of the tee or executor under the will, or a witness thereestablishment of lost or destroyed wills, of the to. granting of letters testamentary and of adminis- History.- 41, ch , 1933; CGL 1936 supp. 6641(4); t ra t wn. an d o f a 11 o th er rna tt ers usua II y per t aming to courts of probate Substitution of circuit judge.-. History.- 38, ch , 1933; CGL 1936 supp. 6541(1); (1) In the case of the disqualification, a b- sence, sickness, or other disability of the county cf , :rurlsdlction In removal proceedings. judge, any judge of the circuit court of the Court always open.-the court of the county may discharge all of the duties and powcounty judge, as a court of probate, shall be open ers of the county judge as a probate judge. In at all times for the transaction of its business. the event such circuit judge is disqualified, ab History.- 39, ch , 1933; CGL 1936 Supp <2>; sent from the circuit, sick, or under other disam. 2, ch , ability, then any other circuit judge in the state Power to enforce judgments.-in all who is not disqualified, may discharge such cases where the county judge is authorized to duties and powers. enter orders, judgments or decrees, he may issue (2) The county judge, when disqualified for attachments of persons or property, executions, interest, shall file a certificate thereof. In no writs of possession, and all such other writs and instance may he act as judge in any matter in orders as are necessary or appropriate to enforce which he is interested. Should he presume so such orders, judgments or decrees. to do, the circuit judge may, in his supervisory Htstory.- 40, ch , 1933; CGL 1936 supp < 8 >; jurisdiction of probate matters, upon proper am. 2, ch petition and short notice to the county judge, cf , , J"udgments for estates. revise the action of the county judge Disqualification of county judge.- (3) Sickness, absence, or disability of the The county judge shall be disqualified for in~erest county judge shall be conclusively evidenced by 3133

34 Ch. 732 FLORIDA PROBATE LAW, SECOND PART the certificate of the clerk of the county judge's ercising probate jurisdiction shall be taken and court. or otherwise evidenced prima facie by the held to be those of the county judge as if made affidavit of any interested party. No decree or or rendered by said judge, and shall be placed order of the circuit judge in probate reciting and remain in his custody. Copies thereof certified by the county judge shall be competent evi the disqualification, sickness, absence, or disability of the county judge shall be collaterally dence. attacked. (5) A progress docket of the proceedings in (4) No county judge, while holding such connection with each estate shall be kept by each office, shall act as personal representative of county judge, in which docket shall be noted each any estate any part of which is required to be pleading or document filed and each order entered, administered in his own court; provided, however, a county judge, individually in his personal writing recorded; and the residence and post with notation of book and page of record of each capacity, on his certificate of disqualification office address of each party who has designated and on appointment and continued supervision same. by a judge of the circuit court acting as county (6) County judges shall, upon request and judge, may serve as personal representative of payment of their fees, make and deliver certified the estate of his deceased spouse, adoptive parent, adopted child, or the estate of any decedent offices or of any of the records of their offices. copies of any pleading or document filed in their related to him by lineal consanguinity. (7) County judges, in making certified copies History.- 42, ch , 1933; CGL 1936 Supp. 5541(5); of letters testamentary or of letters of administra am. 1, ch , 1945; 2, ch , 1945; am. 1, ch , tion, may upon request further certify, whenever such is the fact, that the letters so certified Venue of probate proceedings.-the stand unrevoked at the date of the certificate; venue of probate of all wills and granting of let- and such certificate shall be prima facie evidence ters of administration shall be: of such fact. (1) In the county in this state where the (8) No county judge shall permit any paper, <:lecedent had his domicile. instrument, document, pleading or file to be re- (2) If the decedent had no domicile in this moved from his office or custody except under state, then in any county in wl!ip.h t.ha decedent circumstances named in this law or for purposes was possessed of any property. of taking testimony. (3) If the decedent had no domicile in this (9) County judges may record any and all state and was possessed of no property in this instruments entitled to record by such photostate, then in the county where any debtor of the graphic process and with such equipment and decedent resides. supplies as may be recommended by the county ( 4} For the purpose of this section a married judge and approved and designated by the board woman whose husband is an alien or a nonresident of county commissioners. of Florida may establish or designate a separate Hlstory.- 44, ch , 1933; CGL 1936 supp. 6541(7); domicile in this state. Hlstory.- 43, ch , 1933; CGL 1936 Supp. 6541(6); Pleadings.- am. 2, ch , (1) The pleadings before the county judge ia County judge's records.- probate matters shall be in writing and signed (1) Every county judge shall record, or cause by the pleader or his attorney. All technical his clerk to record, distinctly and at full length, forms of pleadings are abolished. No defect of in books kept for that purpose, all wills, testa- form shall impair substantial rights, and no dements and codicils of which probate shall be feet in the statement of jurisdictional facts acgranted, all letters testamentary and of admin- tually existing shall render void any proceedings. istration, all bonds of personal representatives (2) PETITION.-The petition shall state in (exclusive of supersedeas bonds), all orders and short and simple manner the facts constituting judgments made by him and all other writings in jurisdiction of the court and the ground of the this law especially required to be recorded. proceedings and shall pray for such relief as is (2) Any interested person may, at his own desired. It shall be filed before any process shall cost and expense, have recorded as aforesaid any issue. document or pleading filed in the office of the (3) DEFENSE.-Defenses shall be filed on county judge; provided, that the cost of recording or before the return day specified in the notice or same shall not be taxed as costs against the citation. The answer shall, in short and simple estate unless so ordered by the county judge. A manner, set up the facts constituting the defense. duly certified transcript of the whole or any part ( 4) Upon the filing of a sufficient answer the of probate or administration proceedings before cause shall be at issue, new matters being deemed any court of this state or of any foreign state or denied; and the cause shall be tried at such early country may, upon the payment of appropriate date as the county judge may direct. fees, be filed or recorded in the office of any (5) MOTIONS.-Either party may test the county judge of this state. sufficiency of an adversary's pleading, or of any (3) All such record books shall be indexed as part thereof, by motion. Motions addressed to an to the various estates and as to the subject mat- answer shall be filed within ten days after the ter therein, and shall be open to the inspection of return day or within such other time as the all persons. county judge may in exceptional circumstances ( 4) All records, files, orders, judgments and allow. Disposition of motions and all matters of decrees of any court of this state heretofore ex- amendment and pleading generally shall be in 3134

35 accordance with the direction of the county judge. Reasonable notice of not more than five days shall be given 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: 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; and you are hereby required to 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 in the manner prescribed by law for the service of summons 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 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 issuing the process: and when amended shall be effective FLORIDA PROBATE LAW, SECOND PART Ch. 732 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 County, Florida Estate ol, 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. History.- 46, ch , 1933; CGL 1936 Supp. 5541(9); am. 2, ch , 1945; (3) am. 2, ch , Service or publication when 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 prqt. vided in this law for the service or publication of citations. History.- 47, ch , 1933; CGL 1936 Supp. 5541(10);

36 Ch. 782 FLORIDA PROBATE LAW, SECOND PART Duty to designate residence and postoffice address.- (!) 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 hereinabove 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 1936 Supp. 5541(11); cf , Nonresident representatives to appoint resident agent (13) defines registered mau to Include certified mall with return receipt requested 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. Hlstory.- 49, ch , 1933; CGL 1936 Supp. 5541(12); Depositions.- (!) 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 rules of civil procedure." (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 answerany lawful question or to subscribe the testimony given by him shall be liable, upon 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 underthis section shall be sworn to testify the wholetruth. 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, ch , 1933; CGL 1936 Supp. 5541(13); am. 2, ch , 1945; 2, ch , cf , Co=ission to prove 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. 5541(14); Right of appeal.- (1) All order s, 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); am. 2, ch , 1945; 2, ch , 1945; am. 2, ch , 1947; aub. (1) Am. 10, ch ,

37 Appeals to the circuit court; par ties.- (1) RIGHT TO APPEAL; PARTIES.-Any party 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 complained 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 cross-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 co urt 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. FLORIDA PROBATE LAW, SECOND PART Ch (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 tht> 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 given 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. Hlotory.- 53, ch , 1933; CGL 1936 Supp. 6641(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 tiine 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. II!otory.- 54, ch , 1933; CGL 1936 Supp. 6541(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. History.- 55, ch , 1933; CGL 1936 Supp. 6541(18);

38 Ch. 732 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 regulating appeals 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 the eircuit 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 original 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 record 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 tb the county judge. If there is no supersedeas of the circuit.court's judgment, the mandate shall be delivered to the county judge at the expiration of the time limited for taking the appeal to the supreme eourt. Hlstory.- 56, ch , 1933 ; CGL 1936 Supp. 6541(19); am. 2, ch , 1945; 4, ch , d.- + and 5, Art. v. ; ch. 25 and 35, supreme court and drcult courts of appeal; also new appellate rules Supersedeas.- (!) Every appeal to the circuit court shall, as a matter of right, operate as a supersedeas if the appellant, within the time limited for taking the appeal, files in the office of the county judge a supersedeas bond, with good and sufficient 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 shall, as a matter of right, operate as a.supersedeas if the appellant, within the time limited for taking the appeal, files in the office of the clerk of the circuit court a supersedeas bond, with good and sufficient personal sureties or corporate 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 court or to the supreme court, from an order appointing or removing executors, administrators or curators, to operate as a supersedeas or have the effect of placing or keeping the estate in 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 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 , 1933; CGL 1936 Supp. 6541(20); am. 2, ch Curators.- (1) The county judge, whenever it is necessary, sua sponte or upon the application of any person, 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 ap. pointed 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 hands, 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 CGL 1936 Supp (140); a m. 2, ch , 1945.' ' cf , Married woman as curator , Continuance of business by curator Production of wills.- (1) The custodian of a will, within ten 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

39 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. 6541(69); am. 2, ch , cf.- 7&2.32, Production of later will after probate of prior , Larceny of testamentary instrument Petition for probate of will.- (!) 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 petitioner; 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 has 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, ch , 1933; CGL 1936 Supp. 6641(21); ct , Petition for letters of administration , Petition for administration of estate of persons believed dead Proof of wills.-- (!) 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 (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 the deceased. History.- 61, ch , 1933; CGL 1936 Supp. 6541(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 FLORIDA PROBATE LAW, SECOND PART Ch 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. Hlotory.- 62, ch , 1933; CGL 1936 Supp. 6541(61) ; cf , Depositions Effect of probate.- ( I ) The will of any person who heretofore has died a resident of the state or any person who hereafter dies a resident of the state must be admitted to probate in an original proceeding in the state 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 h ave 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, The title to personal property wheresoever situate of a person who hereafter dies a resident of the state shall not pass under his will to the legatee or legatees named or designated therein unt il after such personal property has been administered upon and distributed by the domiciliary personal representative of his estate; provided that this section shall not apply to any property as to which a valid order has been entered that no administration is necessary as to such property or as to the estate of which such property is a part. (2) In any collateral suit or controversy relating to property, real or personal, thereb;y d~ vised or bequeathed, the probate of a will m 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; CG L 1936 Supp (62) ; 1, ch , 1939 ; 2, ch , 19ol5; oub. I (1) am. fl, eh , cf , Discovery of later wm , Effect of prior foreign probate Establishment and probate of lost or destroyed will.- ( I) 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 a~d precise terms and provisions of such will. (2) The petition fo~ probate of a lost o; destroyed will shall contam a copy of such will or the substance thereof. The testimony of each

40 Ch. 732 FLORIDA PROBATE LAW, SECOND PART 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. (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. ch , c:t Discovery o! 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. mitting 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. 6541(64); Educational, charitable, and religious beneficiaries to be notified.-upon the admission to probate of any will in which an educational, religious, or charitable institution is named as a beneficiary, the personal representative shall, by registered mail, forthwith notify each such institution that it is so named. The notice herein required shall designate the court in which the will has been admitted to probate, and shall give the name and address of the personal representative. mstory.-comp. 1, 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 County Judge County, Florida. may proceed to admit the will to probate upon the expiration of fifteen days after mailing copies By of the citation and petition to the caveator and Clerk to his agent, if any is named in the caveat, at the First publication on respective residence addresses given. Certificate (4) The expense of mailing.and publication shall be advanced to the county judge by the of mailing shall be filed in such instances by the county judge. moving party and shall be taxed as costs of administration, payable out of the assets of the ( 4) Upon the return day of the citation, the caveator may answer the petition for probate. estate. In his answer he shall therein set forth his inter- (5) No person who has been served with est in the estate and the facts constituting the citation upon the petition for probate or who has grounds upon which probate of the will is opwaived such citation need be notified hereunder; posed; and the court shall, upon the issue made but such person shall be bound by the order ad- and the proof adduced, probate the will or deny 3140

41 probate, according to the law and justice of the case. (5) Unless a will is offered for probate within 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 the administrator. Hlstory.- 66, ch , 1933; CGL 1936 Supp. 6541(65); Revocation of probate.- (1) 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 discharge of the personal representative, make application by petition to the court in which the probate of any will may have been granted. for 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. Hlstorv.- 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); am. 2, ch , 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 FLORIDA PROBATE LAW, SECOND PART Ch 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. 6541(68); Discovery of will after settlement of estate.- (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 suit in equity, impress a trust upon the funds or property received 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 complaint 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 representative. Hlstory.- 70, ch , 1933; CGL 1936 Supp. 6541(69); am. 2, ch , 1945; 2, ch , Probate of will written in foreign language.- (1) 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. 6641(70);

42 Ch. 732 FLORIDA PROBATE LAW, SECOND PART 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 tlie 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 evidence of its execution and admission to foreign probate. (3) Any person cited may oppose the probate of such will as in the case of the original probate of 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. 5541(71); 1, ch , 1939; am. 2, ch , Foreign probate prior to local probate of estate of resident decedent prohibited.- (1) 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 or 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 t~cated by such notary, whose official position, signature and seal of office are further authenticated 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 the 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 file~ 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 interested adversely may apply for revocation of probate of 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. 6541(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. 6541(74); other state or country prior to probate of such Probate of nuncupative will...:_ estate or will in this state, shall be guilty of a (1) No probate of any nuncupative will shall misdemeanor, and upon conviction therefor, shall be granted until citation has issued and has been be subject to a fine not exceeding five thousand served upon those who, but for such will, would dollars. be entitled to the property thereby bequeathed. (3) This section shall not apply to any such (2) Upon the probate of a nuncupative will, probate proceedings or anything heretofore or the county judge shall, as a part of his order hereafter done in or in connection with any such admitting same to probate, recite, and thereby probate proceedings instituted in any other state establish and preserve, the full and precise terms or country prior to June 12, and provisions of such will. History.- 1-3, ch , 1939; CGL 1940 Supp. 6541(71A), 8135 (38) ; History.- 76, ch , 1933; CGL 1936 Supp. 6541(76); Probate of notarial will.- (1) When a copy of a notarial will in the pos Construction of will by probate court. -The county judge in whose court the will has session of a notary entitled to the custody thereof, 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 authen 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

43 executor or by any other person interested in the will, with citation and service as required by this law. Hlstory.- 77, ch , 1933; CGL 1936 Supp. 6541(76); am. 2, ch , 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 complaint for the construction of a will may be maintained in any court until the will has first been probated. Hlstory.- 78, ch , 1933; CGL 1936 Supp. 6541(77); am. 2, ch , 1945; 2, ch , Petition for letters of administra tion.- (1) Every petition for letters 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, 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 ariy 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. 6541(22); am. 2, ch , ot , Petition for probate of will , Petition tor administration ot estate ot person believed dead Preference in appointment of administrator.-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. FLORIDA PROBATE LAW, SECOND PART Ch (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 any judge 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. (7) 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. Hlstory.- 80, ch , 1933; CGL 1936 Supp. 6541(23); am. 2, ch , 1946; am. 1, c~ , Individuals who may be appointed personal representatives; resident agents.- (1) Any person sui juris who is a citizen of the United States 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, 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 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.

44 Ch. 732 FLORIDA PROBATE LAW, SECOND PART Such designation must be in writing and must be filed in the office of the county judge. History.- 81, ch , 1933; CGL 1936 Supp. 6541(24); am. 2, ch , 1945; 6, ch , ct , Removal ot personal representative Minor not qualified.- (!) 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 the executor if otherwise qualified. In such case, the letters of administration, if any have been granted, shall be revoked, and the said administrator shall render a true and faithful account of his administration to the county judge's court and surrender the estate to the said executor. (2) The executor in such cases shall be entitled to au rights and proceedings provided for in this law for compelling an accounting from removed personal representatives. Hlstory.- 82, ch , 1933; CGL 1936 Supp. 6541(25); Nonresidents.- (!) A person who is not an actual bona fide resident of the state cannot qualify as a personal representative of an estate in Florida, unless such person is a legally adopted child of the decedent, an 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 qualified 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) Anything contained in any will of a person who hereafter dies a resident of the state to the contrary notwithstanding, it shall be and constitute a violation of this section for any person or corporation to apply for or act under any letters testamentary or of administration with the will annexed issued in any other state or country for or in respect of personal property of a person who hereafter dies a resident of the state and which is located elsewhere than in the state, solely because of the fact that the will of such testator purports to name, constitute or appoint such person or corporation as a purported executor or administrator with the will annexed, when such person or corporation is not qualified to receive and act under domiciliary letters testamentary or of administration with the will annexed issued in the state. (5) 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. History.- 83, ch , 1983; 1, ch. 1S671, 1939; CGL 1940 Supp. 5541(26), 8135(38-a); am. 2, ch , 1945; 7, ch , 1945; am. 1, ch , , 2, 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. 55U(27); be issued letters upon any estate, such nonresi Trust companies and other corporadent shall have his residence and postoffice ad- tions.- dress recorded in the office of the county judge (1) All trust companies incorporated under of the county in which the administration is the laws of the state and all national banking pending, and shall designate some resident of associations authorized and qualified to exersaid county as his agent or attorney for the cise fiduciary powers in Florida shall be enservice of process, whose name, residence, and titled to act as personal representatives and postoffice address shall also be likewise re- curators of estates under the laws of the state. corded. Such designation, in whatever form it (2) When any such corporation has been may be, shall be taken to constitute the consent named as an executor in a will and thereafter of the person so designating that service of any sells its business and assets to, or consolidates process upon the designated agent or attorney or merges with, or is in any manner provided by shall be sufficient to bind the person so designat- law succeeded by, another such corporation, the ing in any suit or action against such personal successor corporation may, upon the death of the representative, either in his representative testator, qualify, and the county judge may issue capacity or personally, provided, that such per- letters to the successor corporation unless the sonal action must have accrued in the adminis- will provides otherwise. tration of such estate. Such designation must (3) A corporation authorized and qualified be in writing and must be filed in the office of to act as a personal representative resulting from the county judge. merger or consolidation shall, upon filing proof (3) Any qualified personal representative thereof in the county judge's court and without a appointed after May 27, 1947, who becomes dis- new appointment, succeed to the rights and 3144

45 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 this s ection. History.- 85, ch , 1933; CGL 1936 Supp. 6541(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. History.- 86, ch , 1933; CGL 1936 Supp. 6541(29); am. 2, ch , 194!i 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.-no 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); Executor de son tort.-no 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 FLORIDA PROBATE LAW, SECOND PART Ch. 732 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. 6541(142); Administrator ad Iitem.-Whenever, in any proceeding before the county judge or in equity in the circuit court, it is necessary that tht:: ~state 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; CG L 1936 Supp (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. History.- 92, ch , 1933; CGL 1936 Supp. 6541(33); cf , Enforcement of judgments Jt igment in favor of personal representative.-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. Hlstory.- 93, ch , 1933; 4, ch , 1936; CGL 1936 Supp (139) ; Compensation of administrator ad litem.-an administrator ad litem shall be al lowed such compensation for his services as the 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

46 Ch. 732 FLORIDA PROBATE LAW, SECOND PART 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. Hiotory.- 94, ch , 1933; CGL 1938 Supp. 6541(34); am. 2, ch , 1945; am. 10, ch , ot , 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 writ ing 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 and affidavits required by law in probate proceedings may be made, either within or without the state, before any officer authorized by the laws of this state to administer oaths. H istory.- 96, ch , 1933; CGL 1936 Supp. 6541(78); Bond of personal representative. (!) Every person to whom letters testamentary or of administration are directed to issue (unless 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 successors 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 not be applicable to banks and trust companies authorized by law to act as personal representatives. History.- 97, ch , 1933; 6, ch , 1936; CGL 1936 Supp (36) ; cf , Additional bond upon sale of assets Bond 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. 6541(37); 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. 6541(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. History.- 100, ch. 1'6103, 1933; CGL 1936 Supp. 6541(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. Hlstory.- 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. Hist ory.- 102, ch , 1933; CGL 1936 Supp. 6541(41); Informality of bond.-n o 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. Hlstory.~ 103, ch , 1933; CGL 1986 Supp. 6541(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 representativ~> capacity, except to preserve the estate.

47 FLORIDA PROBATE LAW, SECOND PART Ch. 732 (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. Hlstory.- 104, ch , 1933; CGL 1936 Supp. &6Cl(48); County judge may reduce bond. The county judge may, for good cause shown, reduce the amount of bond of personal representatives of estates. mstor,..-comp. fl, ch ,

48 Ch. 738 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. 'l's3.06 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 objections 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 Hearing on application to sell Order of sale. CHAPTER 733 FLORIDA PROBATE LAW, THIRD PART 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 Stock held in name of personal representative 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 Examination of returns 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 Personal representative to take possession of entire estate and application of es prior to the distribution of the estate, and not the estate after the death of the testator, and tate income.- used for the purposes set forth in subsection (!) The personal representative shall take (1) above shall in the absence of specific provision in the will to the contrary be paid and possession of the personal property wheresoever situate of a person who hereafter dies a applied as follows: resident of the state, and shall take possessio~ (a) To either specific or demonstrative of the real estate (except homestead) within legatees and devisees the net income from the the state of such a deceased person, and the property specifically or demonstratively bequeathed and devised to them respectively; rents, income, issues and profits therefrom whether accruing before or after the death of (b) To general legatees, legal interest on the decedent, and of the proceeds arising from their respective legacies from the time fixed by the sale, lease or mortgage of the same or any the county judge in an order of distribution for part thereof. The personal representative shall the payment thereof, or if no date is fixed by take possession of the real and personal property within the state of a person who hereafter from the entry of such order of distribution, the county judge, from and after thirty days dies a resident of some other state or country, and the rents, income, issues and profits that the net income therefrom shall be paid except that where the general legacy provides therefrom whether accruing before or after the to or for the benefit of or accumulated for one death of the decedent, and of the proceeds or more beneficiaries, then such general legatee arising from the sale, lease or mortgage of the or legatees shall be entitled to that proportion same or any part thereof. All such property of the net income which the general legacy at and the rents, income, issues and profits therefrom shall be assets in the hands of the per of the entire probate estate, excluding specific appraised value bears to the appraised value sonal representative for the payment of legacies, debts, family allowance, estate and invided, however, that the appraised value shall and demonstrative legacies and devises, proheritance taxes, claims, charges and expenses be the court appraisal unless a United States of administration, and to enforce contribution estate tax return is required to be filed, in and to equalize advancement and for distribution. value finally determined for such tax purposes. which event the appraised value shall be the (2) The net income earned by the assets of (c) To the residuary legatees and devisees,. 3148

49 FLORIDA PROBATE LAW, THIRD PART Ch. 733 all the rest and remainder of the net income praisers or to have any appraisement whenever earned after the death of the testator not hereinabove applied. an estate. the county judge dispenses with the appraisal of (3) If any part of the estate is bequeathed Hlstory.- 108, ch , 1933; CGL 1936 Supp. 6641(80) : or devised to a trustee the propo.rtion of the net am. 3, ch , 1945; 8, ch , income applied to such bequest or devise shall Duties of appraisers.-on the appointment of the appraisers they shall forthwith be paid by the executor to such trustee and shall be held and distributed by the trustee as income. been produced to them and which has come to proceed to appraise all the property which has ( 4) This section shall apply to estates of all their knowledge and file the appraisal in th~: decedents dying on or after July 1, office of the county judge; and the appraisal Hlstory.- 105, ch , 1933; CGL 1936 Supp. 6541(87); thereupon made, if signed by the personal representative, may be considered as an inventory 1 1, 2, ch , 1941; 3, ch , 1945; am. 1, ch , 1953; sub. (1) am. 1, ch , cf , Advancements. of such part of the estate. History.- 109, ch , 1933; CGL 1936 Supp. 6541(81}: Actions relating to real estate.-personal representatives may bring and maintain am. 3, ch , actions or suits for the possession or recovery of Inventories and appraisals as evidence.-inventories and appraisals, or certified real property of the estate, for the purpose of quieting the title thereto, for waste thereof and copies thereof, may be given in evidence in any trespass thereon, and against cotenants of the suit by or against the personal representative; decedent in real property for the partition thereof. Heirs and devisees of the decedent may them however, they shall not be conclusive, for or against him, as to the real value of the estate or selves, or jointly with the personal representative, bring and maintain actions or suits for any part thereof, or as to whether it or any part thereof was sold bona fide for more or less than the possession or recovery of real property of the the appraised amount. Hlstory.- 110, ch , 1933; CGL 1936 Supp. 6641(82); estate or for the purpose of quieting title thereto am. 3, ch , against anyone except the personal representative. In any suit to quiet title brought by an Compensation of appraisers.-each heir or devisee, the possession of the personal appraiser shall be entitled to receive for his representative shall, for the purpose of such suit, services reasonable compensation, to be fixed by be deemed the possession of the heir or devisee. the county judge and paid by the personal representative. Application therefor shall be ~ In all actions or suits involving the title to real property, against an estate for the possession or companied by an affidavit of each appraiser showing the services rendered by him as appraiser recovery of real property or for the purpose of quieting title thereto, the personal representative and the reasonable value thereof, and such application may be heard upon such notice as the and the heirs or devisees of such property shall be made parties. county judge shall fix. Hlstory.- 106, ch , 1933; CGL 1936 Supp. 5541(88); History.- 111, ch , 1933; CGL 1936 Supp. 6641(83); am. 3, ch , am. 3, ch , cf , Survival of actions , Actions by or against foreign representatives Continuance of business of de cedent Inventory.-The personal representa- (1) In every case where a person has died tive shall file a complete inventory of the per- while engaged in any trade or business, the sonal property wheresoever situate of a person county judge may authorize the curator or the who hereafter dies a resident of Florida, and personal representative of the estate of such of the real estate (except homestead) within deceased person to continue and carry on sueh the state of the estate of such a decedent. The trade or business for a reasonable time under the personal representative shall file a complete in- supervision of the county judge and require ventory of the real and personal property with- such security or additional security of such in the state of a person who hereafter dies a curator or personal representative as the county resident of some other state or country. The judge may deem proper. inventory shall be filed within sixty days from (2) Befor~ any order shall be made authorizthe date of the granting of letters unless the ing the continuance of the trade or business of time is extended by order of the county judge. the deceased person, the curator or the personal Hlstory.- 107, ch , 1933; CGL 1936 Supp. 5541(79); representative of such estate, by a verified pe- 13 ch , 1945; 1, ch , tition, shall affirmatively and clearly allege and cf , Inventories; Interests In partnerships. set forth SUfficient facts to make it appear to the Inventories.-The county judge on county judge that, to prevent great loss to the granting letters testamentary or of administra- estate, it is necessary to continue such trade or tion shall appoint two or more competent persons business of the deceased. not of kin to the deceased as appraisers of the (3) The order of the county judge authoriz.. property of the decedent, and said appraisers ing the continuance of such trade or business of shall take oath truly and justly to view and ap- the deceased may empower the curator or the praise, according to the best of their ability, all personal representative of such estate, in his the property of the decedent which to them shall representative capacity, to make such contracts be produced or which shall come to their know!- as may be necessary to carry on and conduct such edge. It shall not be necessary to appoint ap- trade or business and to incur debts and to pay 8149

50 Ch. 733 FLORIDA PROBATE LAW, THIRD PART out money in the 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 estate 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. Hlstory.- 112, ch , 1933; CGL 1936 Supp. 6641(89); am. 3, ch , 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. 6607(4); am. 3, ch , 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. Hlstory.- 114, ch , 1933; CGL 1936 Supp. 6507(5); am. 3, ch , 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. Hlatory.- 115, ch , 1933; 7, ch , 1936; CGL :1936 Supp (6); am. 3, ch , Proceedings on the petition.- (1) 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 in 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. Fifteen jurors shall be summoned from the body of the county and not from bystanders. Hlotory.- 116, ch , 1933; CGL 1936 Supp. 6607(7); am. 3, ch , Commissioners.-If 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; provided, however, that when the interested parties agree to the allotment of dower, or when the assets are of such value and such a nature that dower may be allotted without the appointment of commissioners, the county judge may, in his discretion, dispense with such appointment and set off and allot dower. Hlstory.- 117, ch , 1933; CGL 1936 Supp. 6507(8); 3, ch , 1945; 1, ch , :14 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. History.- 118, ch , 1933; CGL 1936 Supp (9); am. 3, ch , Notice to creditors.-every personal 3150