The reasons given by the Circuit Judge for dismissing appellant's bill are set forth in the third paragraph of his opinion and decree, which paragraph reads as follows:
"3. That these plaintiffs have heretofore on November 7, 1939, filed in this Court their Bill of Complaint against John Ringling North and Ida Ringling North, individually, and as executors of the Estate of John Ringling, deceased, seeking a construction of the Will and Codicil of the said John Ringling, and after proceedings had therein and after filing in this Court on September 27, 1940, by the United States of America, a similar suit for a construction of said Will and Codicil, wherein the Plaintiffs were made parties Defendant, and the Plaintiffs then having dismissed said suit without prejudice to assert their rights in any further litigation and after said dismissal having filed their answer in the case instituted by the United States of America asking for affirmative relief, and that said Will and Codicil be construed, and that thereafter the Plaintiffs as defendants in said cause, by and through its attorney general and special counsel, having consented and concurred that the motion of the attorneys for the Plaintiff United States of America, also consented and concurred to by the attorneys for the Defendants, John Ringling North and Ida Ringling North, individually and as said Executors, and John North, Henry North and Randolph Wadsworth, individually and as said Trustees, petitioning this Court that said cause be dismissed with prejudice, and it appearing that no action has been taken in this cause for a period of almost three years and that in accordance with the case of Sheldon v. Powell,128 So. 258, this Court is of the opinion that the Plaintiff had their option to proceed either in the County Judge's Court of Sarasota County or in the Circuit Court, and they chose to proceed in the Circuit Court but having been dismissed from the Circuit Court with prejudice, they ought now be relegated to the Probate Court, which Court has jurisdiction of all of the matters alleged in the Bill of Complaint and can give full, adequate and complete relief in regard thereto."
It seems to me that the reasons so given are sufficient to *Page 55 sustain the action of the Circuit Court. Appellants had waived their right to insist that the Circuit Court re-assume jurisdiction — a jurisdiction which they had invoked and then effectively abandoned. The questions which they desired adjudicated were within the jurisdiction of the County Judge's court, sitting as a Probate Court, to decide, and in which court the administration of the will and estate in question was then pending, and all the relief prayed for in the Circuit Court could have been granted by the probate court. See 16 Am.Jur. 287, Sec. 14; Borchard on Declaratory Judgments, pp 145, 156.
As I understand the authorities, the Circuit Court was, under the circumstances of this case, vested with discretionary power, a discretion which in my opinion, was not abused. In this connection, see 50 A.L.R. 48; 69 C.J. 863; Crosby v. Burleson, 142 Fla. 443, 195 So. 202; In re Monks' Estate,155 Fla. 240, 19 So. 2d 796; State ex rel Fla. Bank Trust Co. v. White, 21 So. 2d 213, 155 Fla. 591.
My view is that our judgment should be one of affirmance.
CHAPMAN, C. J., concurs.