Feller v. Kline

HENDRY, Judge. This is an appeal by plaintiff from an order of the circuit court granting defendant’s motion to dismiss with prejudice plaintiff’s amended complaint against Lily A. Kline, as executrix of the estate of Sara A. Feller, the deceased wife of the plaintiff. Plaintiff, by his suit, sought to impress a trust upon all of the real and personal property of which his wife was possessed at the time of her death. The basis of plaintiff’s claim is an alleged oral understanding existing between his wife and himself, during their twenty-four years of marriage, that any and all possessions, real, personal, mixed and otherwise which the parties accumulated by sole or by joint efforts were to be held and owned for the mutual advantage and benefit of both parties. The point presented on appeal is whether the trial court erred in dismissing plaintiff’s amended complaint. Upon a careful consideration of the allegations of the amended complaint, briefs and argument of counsel, we have concluded that the chancellor was correct in dismissing plaintiff’s amended complaint. It is our view, and we so hold, that the factual allegations of the amended complaint, if proved, are not sufficient to sup [301] port a decree for the relief sought. Wodonos v. Wodonos, Fla.1952, 62 So.2d 78; Hankins v. Title and Trust Company of Florida, Fla.App.1964, 169 So.2d 526. Accordingly, the order of dismissal is affirmed. Affirmed.