Brickell v. DiPietro Ex Rel. DiPietro

On Petition for Rehearing

A Writ of Certiorari to the Circuit Court for Dade County, Paul D. Barns, Judge.

Stapp, Ward & Ward,

for Petitioners;

H. Pierre Branning

and

Cecil C. Curry,

for Fannie Brick-ell, a widow, and James Bain Brickell, and Allegra K. Brickell, his wife, Respondents;

Morrow & Mayes,

for Elizabeth DiPietro, by her next friend, her husband, Pietro DiPietro, Respondents.

Per Curiam.

In the petition for rehearing, filed by the petitioners for writ of certiorari, it is stated that the court predicated its opinion upon the following statement contained therein: “The homestead was directed to be sold by the executors after it was not used by certain unmarried children as a home. The record shows that the home was discontinued and the homestead conveyed by mutual consent of the devisees.”

It is further stated in the petition that the application for writ of certiorari, made in accordance with a rule of this Court, was directed to an order of the lower court overruling a’ motion to dismiss the bill of complaint, and that the above quoted statement in the Court’s opinion was not founded upon any allegation contained in the bill of complaint or the exhibits thereto, but, to the contrary, paragraph 16 of the bill of complaint, page 11 of the transcript of record, shows that the plaintiffs affirmatively allege that the petitioners for the writ, Belle Brickell and Maude E. Brick-ell, single women, still reside on the said premises and that they have at all times refused the plaintiff possession and.

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refused to give the plaintiff any accounting, and that nowhere in the bill is there any allegation of fact that the home was discontinued.

There seems to be no complaint as to the correctness of the first sentence quoted from the Court’s opinion. It is not questioned that Mary Brickell, in her will, directed that her home place on Brickell Point should be retained as a home for her unmarried children “as long as they or any of them may live and remain unmarried,” and that at the expiration of the period named for the maintenance of the same. “as. a homestead” the will directed that said premises should be disposed of by testator’s executors in the same manner as the other real property belonging to the estate was directed to be disposed of.

The real complaint therefore is bas'ed upon the statement in the opinion that “the record shows that the home was discontinued and the homestead conveyed by mutual consent of the devisees.” It is contended that this statement is not supported by the' allegations of the bill and that the court must have taken the allegations of the cross bill and the answer into consideration in arriving at said statement; that the allegations of the cross bill and answer are not admitted by the petitioners, and that no opportunity has been granted to these appellants to refute the allegations of the answer and cross bill filed as a part of the record in the Supreme Court by the defendants Fannie Brickell,

et al.,

and thati no rule of procedure has been fixed by this Court by which these petitioners for writ of certiorari could file a reply brief to the briefs filed in behalf of the defendants Fannie Brickell,

et al.,

with reference to said answer and cross bill.

Undoubtedly, under our rule, by which a plaintiff or defendant may by certiorari obtain a decision by this Court on the correctness of an order of the Circuit Judge granting or denying a motion to dismiss a bill for'want of equity,

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this Court should only consider the sufficiency of the bill itself to state a cause for equitable relief, being the question raised by the motion to dismiss and the order of the trial court either denying or granting said motion. The purpose of the rule was to afford a more prompt method for securing a decision by this Court on interlocutory orders and appeals, and thus speed up the disposition of equity cases in the circuit courts. The Court had no intention of departing from this rule when the opinion in this case was written. The petitioners for writ of certiorari in this case properly filed in this Court a transcript of the record containing copy of the bill and exhibits, the motion to dismiss the bill and the order of the chancellor denying the motion to dismiss. The Court denied the petition of Fannie Brickell,

et al.,

who were named as defendants to the bill, for leave to intervene in this Court, but permitted their counsel to file an appearance for them in this Court and also a brief. However, no order was entered by this Court on the petition for leave to file a supplemental transcript containing a copy of said answer and cross complaint.' The Court has realized all along that the only questions which it was called upon-to consider were those raised by the petitioners, Belle Brickell and Maude E. Brickell, in the court below, by their motion to dismiss the bill and the chancellor’s order denying the motion, and that the determination of these questions rested upon the petition for writ of certiorari and the transcript accompanying same, which transcript contained certified copies of the bill, the motion to dismiss and the trial court’s order denying said motion.

The statement in the Court’s opinion to the effect “that the home was discontinued and the homestead conveyed by mutual consent of the devisees” was an inference drawn by the Court from the allegations of the bill and the exhibits to the bill. The bill showed that each and all of the heirs

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of Mary Brickell conveyed their respective several interests in the property, referred to as a “homestead,” to Maude E. Brickell, Frank Clark and William B. Brickell, as executors and trustees under the will of Mary Brickell, and that such executors and trustees in turn promptly conveyed the property to the three unmarried daughters of Mary Brickell, namely, Alice A. Brickell, Belle G. Brickell and Maude E. Brickell, thereby vesting the fee simple title in the three single daughters. This was in November, 1923. Subsequently, September 12, 1924, Alice Brickell died intestate. Thus in 1923 “the homestead” was conveyed by the mutual consent of the heirs and devisees to the three unmarried daughters, one of whom died in 1924 and one of the others, Maude E. Brickell, was adjudged a bankrupt in 1930 and all' her right, title and interest in and to said property was sold on June 3, 1933, and the same confirmed by an order of the United States District Court, and the trustees in bankruptcy delivered a deed to the purchaser, Elizabeth DiPietro, on June 5, 1933. While we inferred from this that the home had been discontinued, as stated in our opinion, the record does not positively show that the petitioners Belle Brickell and Maude E. Brickell ever actually vacated or abandoned said home place or that it was

discontinued

as a home. To that extent our former opinion, wherein it was stated that “the home was discontinued” may be considered as deleted from, the opinion. However, this does not cause us to change the conclusions which we reached in our former opinion, wherein we held that “a trust was not created by the terms of the last will and testament of,.Mary Brickell, that required a court order to discontinue it, and that the devisees had the legal right and authority to' convey the property involved as shown by the different conveyances appearing 'in the record,” and that the petition for writ of certiorari should accordingly be denied. On the facts al

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leged in the bill, considered in connection with the exhibits attached thereto we see no reason to change our former conclusion that no error was committed by the chancellor in denying the motion to dismiss the bill.

Petition for rehearing denied.

Whitfield, P. J., and Brown and Chapman, J. J., concur.

Buford, J., concurs in opinion and judgment.

Chief Justice Terrell and Justice Thomas not participating as authorized by Section 4687, Compiled General Laws of 1927, and Rule 21-Á of the Rules of this Court.