Moore v. Keen , 1965 Fla. App. LEXIS 3607 ( 1965 )

HOBSON, Judge.

This appeal is from a final decree of the lower court in a suit whereby the plaintiff-appellee asked for an accounting of all sums received by Ruby G. Keen as guardian •of Solomon Aaron Keen and a judgment for such amounts that might be found by the court upon final accounting to have been misapplied by the said guardian from the estate of Solomon Aaron Keen, incompetent. The appellant-defendants, James D. Moore and Daniel M. Davis, are the joint-executors of the estate of Ruby G. Keen, deceased. The appellant-defendant Pennsylvania Insurance Company, a corporation, issued a surety bond in the amount of $10,000, conditioned upon the faithful performance of Ruby G. Keen of her duties as guardian of Solomon Aaron Keen.

Testimony was taken before a Special Master who made his findings of fact and recommendations to the Chancellor. The Special Master found that the guardian, Ruby G. Keen, had misapplied monies of the estate of Solomon Aaron Keen, incompetent, in the amount of $22,826.14. He further found'that the guardian should receive a credit against said sum- in the amount of $7,125.89, leaving a balance of $15,700.25 due the appellee from the appellants. The Special Master’s findings of fact were affirmed by the Chancellor. The Chancellor, however, determined that as a matter of law two items in the amount of $694 could not legally be credited to the guardian, as was done by the Special Master. Therefore, he entered a final decree in favor of the appellee in the total amount of $16,394.25.

In the instant case,, both the Special Master and the Chancellor found that the appellee was entitled to an accounting and the Chancellor concurred with the Special Master in all of his findings of fact. The findings of fact of the Master, as approved by the lower court, will not be disturbed unless clearly shown to be erroneous. Budd v. Tison, Fla.1950, 47 So.2d 12 and Nahmod v. Nelson, 1941, 147 Fla. 564, 3 So.2d 162. We have carefully considered the record in the instant case with respect to the evidence and all reasonably deducible inferences therefrom and conclude that the final decree which affirms the findings of fact of the Special Master should be affirmed as the appellants have not clearly shown them to be erroneous.

The appellant, Pennsylvania Insurance Company, filed with this court a motion for dismissal from appeal and at the time of oral argument ail parties concurred in said motion; therefore, the appellant, Pennsylvania Insurance Company, is hereby dismissed from this appeal and for the reasons stated the decree appealed should be and it is hereby affirmed.

SHANNON, Acting C. J., and HEWITT, ROBERT S., Associate Judge, concur.