Opinion
No. 77-104.
April 11, 1978.
Appeal from the Circuit Court for Dade County, Frank B. Dowling, J.
Kuvin, Klingensmith Lewis, Miami, for appellant.
Kalback Thomas, Miami, for appellee.
Before HENDRY and HUBBART, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
The appellant Eva Zeidel appeals from an order entered in a probate proceeding before the Circuit Court for the Eleventh Judicial Circuit of Florida in which the trial court denied her motion for an extension of time within which to file an independent suit against the appellee Estate of Hyman Rosenberg pursuant to the non-claim statute [§ 733.705(3), Fla. Stat. (1975)]. In our view, the trial judge was eminently correct in denying the motion because the non-claim statute herein was inapplicable to the appellant Zeidel's independent suit and thus no extension of time within which to file such suit was necessary under the statute.
The gravamen of the independent suit against the estate herein was a replevin action in which the appellant Zeidel asserts that certain bearer bonds held by the appellee estate belong in fact to the appellant and not to the estate. As such, the lawsuit falls outside the purview of the non-claim statute because it asserts a claim on identifiable property held by the estate and alleges that such property is not a proper part of the estate. Hodges v. Logan, 82 So.2d 885 (Fla. 1955); Fisher v. Creamer, 332 So.2d 50 (Fla. 3d DCA 1976); Ruza v. Estate of Ruza, 132 So.2d 308 (Fla. 3d DCA 1961). No extension of time within which to file such a suit was therefore necessary under the non-claim statute as the suit can be maintained independent of the non-claim statute.
Affirmed.