In the case of Brown v. Nugent, 68 Fla. 587, which was affirmed by this Court without opinion, under date of December 22, 1914, it appears from the transcript of the record in that case, which is on file in the archives of this Court, that the County *Page 449 Judge, sitting as a Court of Probate in Duval County, did entertain and decide a petition filed by one H. D. Brown, praying for the establishment of the lost or destroyed last will and testament of one Fay M. Brown, deceased, and asking that it be admitted to probate after it was so established.
The relief in that case, however, was denied by the County Judge on the merits of the case as made by the evidence and on appeal to the Circuit Court, the judgment of the Probate Court was affirmed by Circuit Judge George Couper Gibbs. The decree of Judge Gibbs was thereafter affirmed by this Court on appeal from the Circuit Court, as appears by the memorandum record of the case found in 78 Florida Reports at page 587.
In the Brown v. Nugent case, supra, it seems to have been taken for granted that the law was, prior to the enactment of Section 64 of Chapter 16103, Acts of 1933, that the jurisdiction was vested in the County Judge as a Court of Probate to grant the establishment and probate of lost or destroyed wills. If that supposition is true, then Section 64 of Chapter 16103, Acts of 1933, is merely declaratory of the pre-existing law in this State on the subject of establishing and admitting to probate, lost or destroyed wills.
But in a more recent case decided in the Circuit Court of Duval County, and now pending on appeal to this Court from the decree of the Circuit Court refusing to re-establish, because of a decision against the bill on its merits as resting upon the testimony, it seems to have been supposed by the counsel who brought that suit, that the proper, if not the exclusive remedy, for re-establishing an alleged lost or destroyed will, is in a court of chancery. But in neither the Brown v. Nugent case, supra, nor the now pending case *Page 450 of Abraham Thomas, et al., v. Lillian Thompson, et al. (pending in this Court undecided), was the point of jurisdiction or right to proceed raised or determined.
The present case is therefore the only case (so far as I have been able to find) wherein the question of the jurisdiction of the Probate Court (prior to Section 64 of Chapter 16103, Acts of 1933) to both establish and admit to probate a lost or destroyed will has been directly brought in question in a proceeding requiring a decision on that point.
My conclusion after a thorough study of the proposition involved is, that a court of chancery as an incident to a right to have an accounting against persons alleged to be wrongfully in possession of and administering assets of the estate of a decedent which have been otherwise disposed of by a lost or destroyed valid will, may ascertain and determine whether or not the decedent departed his life leaving a last will and testament, and if it finds that decedent did leave such will and testament, may thereupon enter a decree re-establishing the will shown to have been suppressed, lost or destroyed, and may thereupon require all persons acting upon other wills or probate authority, to account to the legatees and devisees under the re-established will, leaving it to the proponents of the equity proceeding to have the re-established will also admitted to probate before the County Judge after the decree in the equity case is entered.
But prior to the 1933 Probate Act, I find no authority for a re-establishment proceeding in the Probate Court in the first instance.
WHITFIELD, J., concurs. *Page 451