Opinion
No. 70-210.
November 10, 1970. Rehearing Denied November 25, 1970.
Appeal from the Circuit Court for Dade County, George E. Schulz, J.
Stephens, Demos, Magill Thorton, and Paul E. Gifford, Miami, for appellant.
Fogle Fordham, Richard M. Gale, Miami, for appellee.
Before PEARSON, C.J., and BARKDULL and SWANN, JJ.
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.