Dill v. Stevens

Chapman, J. The record shows that Ruth Stevens filed in the County Judge’s Court of Pinellas County, Florida, a petition against the Estate of Emma Le Payne, deceased, for an order directing the payment of a promissory note for the sum of $500.00 against the estate of Emma Le Payne. The note is viz.: $500.00 Flint, Mici-i., Nov. 2, 1926. “One year after date, I, we, or either of us, promise to pay to the order of Mrs. Ruth Stevens Five Hundred and *308 no/100 — Dollars at Industrial Savings Bank, Flint, Mich. “Value received, with interest at the rate of 8 per cent per annum. Mrs. Emma Le Payne “P. 0.1_______________ “Due_________________ “No._________________ “St. Petersburg, Fla. “Nov. - 12 - 1935 “This is a note for $500.00 Five Hundred dollars, money I borrowed of Ruthe E. Stevens. Mrs. Emma Le Payne.” The petition alleged that Ruth Stevens on October 28, 1938, filed a claim in the County Judge’s Court of Pinellas County requesting the payment of the principal and interest on the aforesaid note in the total sum of $971.44, and that ten months had elapsed or intervened since the first creditor’s notice was published and n'o objections to the payment thereof had been made or filed by the executrix or any other person interested in the administration of the estate, and that the estate owned property and had available assets out of which the promissory note could be paid. An answer was filed by the executrix of the Emma Le Payne estate to the aforesaid petition in which it was admitted that the claim was filed and more than ten months had elapsed since notice to creditors was first published and n'o objections were filed by the executrix of the Payne estate to the payment of the said note, but the failure to file objections did not establish the validity of the said claim in the form of a promissory note; that the claim was void on its face and the proper forum to determine the validity of said claim was in the Circuit Court of Pinellas County. *309 On’ August 22, 1939, the Honorable Jack White, County-Judge of Pinellas County, made and entered an order denying the petition of Ruth Stevens seeking an order of payment of the said note, without prejudice to the rights of Ruth Stevens to pursue such remedy or remedies for the enforcement of her said claim as she may be advised. An appeal from the aforesaid order was perfected to the Circuit Court of Pinellas County, Florida, and on September 30, 1939, the Honorable John U. Bird, circuit judge, made and entered an order reversing the order appealed from as made by the County Judge of Pinellas County, and in remanding the cause directed that the County Judge of Pinellas County forthwith make and enter an appropriate order allowing the payment of her said claim according to the prayer of her petition. From said order of the Circuit Court of Pinellas County an appeal has been perfected to this Court. The first question for adjudication is whether or not the claim filed in the County Judge’s Court of Pinellas County by Ruth Stevens against the Estate of Emma Le Payne on its face is a valid claim. The claim is in the form of a promissory note and bears the signature of Mrs. Emma Le Payne, is dated at Flint, Mich., November 2, 1926, an'd matured one year after date. It will be observed that the note is not. under seal, and Subsection 3 of Section 4663 C. G. L. provides that actions upon any contract, obligation or liability founded upon an instrument of writing not under seal must be brought within five years. It is contended, and we think properly so, that the defense as to the running of the statute of limitation, supra, was removed as a defense and the promissory note became a binding obligation of the estate when Mrs. Emma Le Payne, at St. Peters-burg, Florida, on November 12, 1935, acknowledged the *310 former promise to pay in writing when she stated: “This is a note for $500.00 Five Hundred dollars, money I borrowed of Ruthe E. Stevens.” Section 4650 C. G. L., provides: “4650. (2930). Promise to Pay Debts Barred — Must be in Writing. — Every acknowledgment of, or promise to pay a debt barred by the statute of limitations, must be in writing and signed by the party to be charged.” The legal effect of said instrument was an acknowledgment of the debt or obligation and took the same out of the statute of limitations. See Woodham v. Hill, 78 Fla. 517, 83 So. 717; Hall v. Brown, 80 Fla. 481, 86 So. 277; Coke v. Phillips, 89 Fla. 283, 103 So. 612; Danielson v. Line, 135 Fla. 585, 185 So. 332. The second question for determination by this Court is, viz.: “Does a claimant who has filed his claim in strict accordance with the law against a solvent estate and who has waited longer than the time required by law for the personal representative of the estate to file objections to said claim have the legal right to file a petition with the count)' judge requesting an order for the payment of said claim when it appears that the claim is valid on its face and no request for an extension of time to file objections has been made by the personal representative, and does the county judge have authority to entertain said petition and make an adjudication with reference to said claim?” The county judge answered this question in the negative, while the circuit judge on appeal answered it in the affirmative. An answer to this question is found in' Sections 120, 121, 122 and 123 of Chapter 16103, Acts of 1933, Laws of Florida, being Sections 5541 (92), 5541 (93), 5541 (94), and 5541 (95), Permanent Supplement Comp. Gen. Laws. *311 In the case of Pierce v. Pasquarello, 125 Fla. 330, 169 So. 727, the claimant filed in the County Judge’s Court of Dade County, Florida, a petition for the compulsory settlement and payment of a promissory note of the deceased and the court heard the parties and entered an order disallowing the payment of the said note and held that the same was not a valid claim against the said estate. An appeal to the circuit court was perfected, when an' order of affirmance was entered and on an appeal to this Court the order of the Circuit Court of Dade County was affirmed. The County Judge of Pinellas County, in the case at bar, dismissed the petition seeking payment of the note here involved without prejudice to any remedy thereon as held by the said Ruth Stevens. He declined to pass on the question of whether or not the note was a valid claim against the estate. The circuit judge, on appeal, held that the note was a valid claim against the estate and reversed the order of the county judge and directed the payment of the said claim. It was the duty of the county judge to hear the petition of Ruth Stevens and determine whether or not the claim was valid an'd if a lawful claim, make and enter an order for its payment. See In re: Jeffries Estate, 136 Fla. 410, 181 So. 833. The order appealed from is hereby affirmed. Whitfield, P. J., and Brown, J., concur. Buford, J., concurs in opinion and judgment. Chief Justice Terrell and Justice Thomas not participating as authorized by Section 4687, Compiled General Laws of 1927, and Rule 21-A of the Rules of this Court.