While I concurred in our opinion and decision in this case, upon further consideration of the case in the light of the petition for rehearing, I am inclined to think that our previous decision was erroneous and that the petition for rehearing should be granted.
In the first place, so far as the record brought to this Court discloses, the original note and acknowledgment, purported copies of which are attached to and made the basis of appellee's claim, as filed in the county judge's court, have never been introduced in evidence or exhibited before either the county judge or the circuit judge.
In the second place, I am not at all sure that we were correct in holding that the purported acknowledgment, to-wit: "This is a note for $500.00, money I borrowed of Ruth E. Stevens," is sufficient to remove the bar of the statute. We have held that a writing relied upon to revive a debt already barred by the statute of limitations should be certain and definite and an acknowledgment of the existence of the debt and a willingness to pay the same. Cosio v. Guerro, 67 Fla. 331,65 So. 5; Woodham v. Hill, 78 Fla. 517, 83 So. 717; Knowles Bros. v. Larkin, 132 Fla. 667, 181 So. 896.
If the note was correctly copied in the exhibit attached to the claim, it was barred by the statute of limitations, *Page 313 unless there was in fact a subsequent acknowledgment or promise to pay, and unless such subsequent acknowledgment, if proven, was sufficient in law to take the debt out of the statute. On the question of law involved, the executrix was entitled to an adjudication by a competent court, and on the question of fact involved, the executrix was entitled to demand in the course of such adjudications, if she desired it, a jury trial, unless she had waived this right to an adjudication by failure to file objections within the ten-months period, which is very doubtful; and even if she had waived this right, such waiver would not prevent the county judge from requiring an adjudication of the validity of the claim before ordering its payment.
The first notice to creditors was published on July 23, 1938, the claim was filed in time on October 28, 1938, and more than ten months had elapsed from the first publication of notice to creditors, during which time no objection had been filed, when on October 2, 1939, appellee filed her petition in the county judge's court for an order directing the executrix to pay said claim. The executrix promptly filed an answer to appellee's petition in which she stated that the failure to file objections did not establish the validity of the claim but merely determined the time within which action may be brought upon it. The executrix further alleged that the claim filed by appellee was and is void on its face, and that failure to file objection thereto does not lend any validity to it, and that the county judge was without jurisdiction to order its payment; that the proper method and the proper forum in which to determine the validity of this claim is by a suit thereon in the Circuit Court of Pinellas County, Florida. After hearing on the petititon and answer, the county judge entered an order denying the petition without prejudice to the rights of the petitioner to pursue such remedy or remedies for the adjudication and *Page 314 enforcement of her claim as she might be advised. The writer is now inclined to think the county judge was correct in making said order.
From this order, an appeal was promptly taken to the circuit court, which reversed the order of the county judge, and remanded the cause to the county judge's court with instructions to forthwith enter an appropriate order allowing the claimant's claim as prayed for in her petition. And this judgment of the circuit court was affirmed by this court by opinion and decision handed down on May 14, 1940, to which this petition for rehearing is addressed.
The exact question here presented has not hitherto come before us. It is a question of great importance.
In our opinion of May 14, 1940, we overlooked the fact that the claim here involved has never been adjudicated on its merits, and if the county judge had granted claimant's petition for an order directing the payment of the claim, in the face of the answer of the personal representative denying its validity, he would have assumed to exercise the jurisdiction to order the payment of a disputed claim, thus preventing the raising of issues of fact and of law in an appropriate tribunal and depriving the personal representative of the right to a trial by jury, which right is incident to the trial of actions excontractu at law.
Furthermore, can the mere inaction of the personal representative, by failing to file objections to claims within the ten-months period, deprive the county judge of his authority to require the plenary adjudication in courts of competent jurisdiction of doubtful clams against an estate which is being administered in his court?
And in determining whether a claim is sufficiently doubtful to require adjudication in a plenary action, may not the county judge, sitting as a probate court, consider, not *Page 315 only the face of claimant's petition and the probate records, but also matters dehors the record, which may have come to the judge's knowledge? Can his exercise of discretion in such a matter be set aside on appeal without showing that such discretion has been abused? And if the mere failure of a personal representative to file objections within the time prescribed by the statute can deprive the probate court of its jurisdiction to require the adjudication of doubtful claims against estates, would it not open the door to possible collusion and fraud, which the heirs and distributees and honest creditors of the estate might find it very hard to later find any adequate remedy for?
In the case of Pierce v. Pasquarello, 125 Fla. 330,169 So. 727, the late Mr. Justice DAVIS, in a concurring opinion in which the writer concurred, made these pertinent observations:
"Practically the whole argument of appellant is postulated upon the contention that under the 1933 Probate Act, it wasindispensable for the personal representatives to file objections to claims within the time provided in par. b, Section 122 of the Probate Act, Section 5541, (94) C. G. L., Permanent Supplement. The statute is an acceleration statute designed to speed up the institution of litigation against estates on disputed claims. It was not intended to make the probate proceedings the forum for settling such claims through the simple expedient of treating all claims as valid merely because no contest thereof is filed, as might be done by the personal representatives."
I do not think that the majority opinion of Mr. Justice BUFORD in Pierce v. Pasquarello, supra, sustains the action taken by the circuit court in this case, nor our affirmance of such action. Nor do I find anything in the well considered opinion of Mr. Presiding Justice WHITFIELD in the *Page 316 case of In Re: Estate of J.B. Jeffries, 136 Fla. 410,181 So. 833, which supports the correctness of the circuit court's judgment in this case; rather the contrary. In that case, it was said:
"Section 120 is in effect a statute of non-claim. Section 122 contains a limitation as to the time for filing objections to clams against a decedent's estate filed in the office of the county judge, and also contains a limitation of time for the institution of suits, actions or proceedings to establish claims that are duly objected to. But the statute expressly authorizes the county judge, upon good cause shown, to extend the time for filing objections to claims and for bringing suits, actions or proceedings on claims which have been duly objected to. This makes the stated time limits operate as rules of judicial procedure to be relaxed only for good cause shown. The reasonableness of the extension of time, and the grounds on which such extensions are decreed are to be determined by a county judge having authority under the Constitution to exercise judicial power of the State. The adjudication is to be governed by a given standard of judicial action, viz.: 'good cause shown,' subject to appropriate judicial review, in order that right and justice shall be administered by due course of law as required by the Constitution."
As the merits of the claim here involved have never been adjudicated by any court of competent jurisdiction, what jurisdiction did the county judge have to adjudicate this disputed claim, and what jurisdiction did the circuit court have to adjudicate that question on appeal from the county judge's court, which latter court had not attempted to pass on the merits of the claim? As I understand the principles embodied in the Probate Act of 1933, there are certain jurisdictional limitations placed upon the action of both the *Page 317 probate and appellate courts with respect to theoriginal adjudication of controverted claims against the estates of decedents, which contraversies are cognizable in our regular trial courts. Our ultimate decision of this case should, therefore, reflect the considered judgment of this Court upon a rehearing, which I trust will be granted, because it deals with fundamental questions of probate procedure and jurisdiction and will set an important precedent relating to the safe and orderly settlement and determination according to law of substantive rights which are brought in question in the administration of estates of decedents.
As I understand it, the Probate Act does not have the effect of making our probate judges trial judges in controversies of the nature here involved, nor should our probate judges be forced to recognize and order the payment of all claims not formally objected to, even when they have serious doubts of the validity thereof and would prefer to have such question of validity settled by a competent trial court before ordering the same paid out of the funds of the estate. Nor should the statute be so construed as to require personal representatives to file objections to all claims within ten months from the first publication of notice to creditors in order to make sure that they are not entrapped into the compulsory payment of some claim or claims which may be invalid, or of seriously questionable validity, by means of a petition filed by the claimant with the probate judge, promptly after the ten-months period has elapsed, for an order directing the payment of the claim, and this perchance before the personal representative has had a reasonable opportunity, after discovering the questionable validity of the claim, to present a petition to the probate judge for an extension of time to file formal objections thereto, as authorized by the Probate Act. It may be that in this case *Page 318 the answer of the Executrix to the claimant's petition could have been treated by the county judge as an application for an extension of time in which to file formal objections, but as the county judge evidently thought that the claim, as stated in the answer thereto, was on its face one of questionable validity, (as the writer also thinks it was), he denied claimant's petition for payment without prejudice to the rights of the petitioner to pursue such remedy or remedies for the enforcement of her claim as she might be advised. Surely under these circumstances the county judge was not compelled to adjudicate the serious question of validity thus raised, nor was he compelled to summarily order the payment of the claim. A considerable degree of discretion should be left to the probate court in determining whether or not a claim should be adjudicated in a trial court before payment is ordered, and unless abuse of discretion is clearly shown, his action in such a matter should not be disturbed. Surely, no abuse of discretion is shown here.
The effect of the opinion of this Court in the Jeffries case,supra, is to hold, as I understand it, that it is only with reference to the statute of non-claim itself (Section 120 of the Probate Act) that the county judge is without any discretion whatever in directing the adjudication of claims.
For these reasons I think the petition for rehearing should be granted and the respective parties allowed to file briefs thereon. *Page 319