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Allen v. Allen

Florida Supreme Court, Division A

August 9, 1933

ALLEN
v.
ALLEN.

Rehearing Denied Oct, 3, 1933.

Suit by Annie H. Allen, a divorced woman, against Marie L. Allen, a widow, as administratrix of the estate of Ben Hill Allen, deceased, and as the sole heir at law of Ben Hill Allen, deceased. From a decree for plaintiff, defendant appeals.

Affirmed. [111 Fla. 733]Appeal from Circuit Court, Hillsborough County; L. L. Parks, judge.

COUNSEL

A. C. Brooks and S. S. Sandford, both of Tampa, for appellant.

Chancey & Thomas and Thomas Quinby, all of Tampa, for appellee.

OPINION

PER CURIAM.

In September, 1929, Annie H. Allen was divorced from Ben Hill Allen. The decree for divorce carried alimony in the sum of $100 per month. About the time [111 Fla. 734] the decree of divorce was granted, Ben Hill Allen executed his note and agreement to Annie H. Allen, agreeing to pay her alimony in the sum of $100 per month during her natural life or so long as she remained unmarried. The note and agreement also provided that, in the event of the death of Ben Hill Allen before the death of Annie H. Allen, his heirs, executors, and administrators should pay said alimony.

In March, 1931, Ben Hill Allen died, but prior to his death he had married Marie L. Allen, the appellant herein. He paid all claims for alimony due Annie H. Allen as per terms of his agreement up to his death, but no part of said alimony has been paid by his administratrix, Marie L. Allen. In April, 1931, Annie H. Allen filed her claim in the probate court of Hillsborough county for alimony, and later she filed another claim in the same court for $35,000, money alleged to have been advanced to Ben Hill Allen during their coverture.

In May, 1932, Annie H. Allen filed her bill of complaint against Marie L. Allen, alleging, among others, the foregoing facts, the appointment of Marie L. Allen as administratrix of the estate of Ben Hill Allen, her mismanagement and dissipation of said estate, and prayer for her removal and the appointment of a receiver to take charge of and manage said estate pending the disposition of said cause. The prayer for a receiver was granted, and this appeal is from that order. In December, 1932, this court entered its order

Page 238

under section 5 of article 5 of the Constitution of Florida restraining the plaintiff and the receiver from taking any steps or exercising any authority whatever, pursuant to the order of the court below, with respect to the property involved, until further ordered by this court.

The sole assignment of error is that the court below erred in appointing a receiver. The receiver was appointed on [111 Fla. 735] the showing that the estate was being maladministrated and converted wrongfully to the use of the administratrix.

The pith of appellant's predicate for error is that the administratrix was the sole heir of Ben Hill Allen; that the claim of appellee for $35,000, money advanced to Ben Hill Allen, was barred by estoppel; and that appellee's claim for alimony ...


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