
    Frank F. DOMNICK, Jr., Appellant, v. Patricia L. WARE, as Executrix of the Estate of Frank F. Domnick, Deceased, Appellee.
    No. 70-210.
    District Court of Appeal of Florida, Third District.
    Nov. 10, 1970.
    Rehearing Denied Nov. 25, 1970.
    Stephens, Demos, Magill & Thorton, and Paul E. Gifford, Miami, for appellant.
    Fogle & Fordham, Richard M. Gale, Miami, for appellee.
    Before PEARSON, C. J., and BARK-DULL and SWANN, JJ.
   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.  