Phifer v. Abbott

Whitfield, J.

Lucy B. Abbott in her own . right as the sole heir of Margaret S. Abbott, brought proceedings against W. B. Phifer and others to enforce a mortgage lien upon land executed to Margaret S. Abbott by Martha P. Perry in her life time. An order overruling a demurrer to the bill of complaint was reversed here because the right of the complainant to maintain the suit did not appear, the allegation as to'the complainant’s right to sue being that she was sole heir pf her mother Martha S. Abbott “who immediately went into possession of all the property left by her mother.” Phifer v. Abbott, 68 Fla. 10, 65, South. Rep. 869.

Subsequently the trial court granted leave to file an amended bill in the cause upon the payment of costs, and the defendant Phifer appealed.

It is contended that the amended bill of complaint should not have been filed because it makes a new suit setting up matters that occurred after the filing of the original bill and after the Supreme Court had reversed an order overruling a demurrer to the original bill of complaint.

In the amended bill Lucy B. Abbott as administratrix cum testamento amnexo of the estate of Margaret E. L. Abbott deceased, is complainant, and the bill alleges that Margaret E. L. Abbott and Margaret S. Abbott were one and the same person; that Margaret E. L. Abbott died leaving a will wherein Lucy B. Abbott “was named and is the sole heir, legatee of said Margaret E. L. Abbott;” “that the said Lucy B. Abbott immediately upon the death of said Margaret E. L. Abbott went into the possession of all the property left by her mother, the said Margaret E. L. Abbott, deceased, and became the owner of the note and mortgage described in this bill;” “that at the time of the death of the said Margaret E. L. Abbott” her estate “was not indebted and that said estate has not since and is not now indebted;” that John Starke was named executor of the will, but never qualified and is now deceased; “that no other person or persons have managed or controlled any of the estate of said Margaret E. L. Abbott except your oratrix Lucy B. Abbott, the sole heir and legatee named therein; that recently, to-wit on the 1st day of July, A. D. 1914, the will of the said Margaret E. L. Abbott was • duly proven and probated and your oratrix, upon proper application was appointed administratrix cum testamento annexo to administer upon the estate and effects of the said Margaret E. L. Abbott.” An amendment of the bill was in order after the former appeal, since the court held the demurrer well taken.'

It clearly appears that Lucy B. Abbott, the complainant in the original bill is the sole heir of, the mortgagee, that she is the holder and owner of the evidences of indebtedness in question; that there is no indebtedness against her mother’s estate, and that .she has duly qualified to administer on the estate that belongs entirely to her. She is the same person who instituted the original suit and the only change in her asserted capacity to sue is that she has qualified as the legal representative of an estate that is wholly her own. Such amendment as this does not make a new suit; and the. form of the amended bill is such that it may if necessary to justice in the cause, he treated as a supplemental bill. An amendment stating that a complainant sues technically in a representative capacity and not individually in the same cause of action does not make a new suit or cause of action particularly when the complainant is the sole party in interest and the suit is brought for her sole benefit. See Missouri, K. & T. R. Co. v. Wulf, 226 U. S. 570, 33 Sup. Ct. Rep. 135.

The order is affirmed.

Taylor, C. J., and Shackleford, Cockrell and Ellis, JJ., concur.