Domnick v. Ware

240 So. 2d 654, 1970 Fla. App. LEXIS 5644

Opinion

PER CURIAM.

Appellant seeks review of a final order of dismissal in a suit wherein he sought to recover certain property allegedly in the possession of an estate represented by the appellee. We affirm.

No claim was filed under § 733.16(1), Fla.Stat., F.S.A., to “personal property in the possession of the personal representative” within the time provided for therein. The complaint not alleging that the deceased held the property in question in a fiduciary capacity [e. g., Hodges v. Logan, Fla.1955, 82 So.2d 885; Buck v. McNab, Fla.App.1962, 139 So.2d 734], the appellant is relegated to his rights under § 733.-16(1), Fla.Stat., F.S.A.

Therefore, it affirmatively failing to appear that a claim had been filed and rejected within the statutory time, the trial judge was correct in dismissing the complaint with prejudice. Price v. Davis, Fla.App.1965, 180 So.2d 474; Hathaway v. Boyd, Fla.App.1966, 192 So.2d 8.

Affirmed.