
    IN RE: ESTATE OF McRAE
    Case No. 87-96-CP
    Fourth Judicial Circuit, Clay County
    October 5, 1988
    APPEARANCES OF COUNSEL
    James David White, for personal representative, Cynthia McRae.
    Joseph P. Milton, Howell, Liles & Milton, for claimant, Florida East Coast Railway Company.
   OPINION OF THE COURT

L. THOMAS McANNALLY, Circuit Judge.

ORDER DENYING MOTION TO STRIKE AND AUTHORIZING EITHER PARTY TO SCHEDULE A HEARING

This cause was heard upon the Personal Representative’s Motion to Strike the claim of the Florida East Coast Railway Co.

Notice of Administration was first published June 9th, 1987. The Florida East Coast Railway Co. filed a claim July 7, 1988, approximately eleven (11) months after the first publication of the Notice of Administration. Section 733.702 provides that no claim against decedent’s estate that arose before the death of the decedent is binding on the estate unless presented within three (3) months from the date of the first publication of the notice of creditors. The Florida East Coast Railway Co. contends the statute is unconstitutional.

In the Matter of the Estate of Everett Pope, Jr., Deceased, Tulsa Professional Collection Services, Inc., Appellant v Joanne Pope, Executrix of the Estate of H. Everett Pope, Jr., Deceased, DECIDED April 19th, 1988, 2 FLW Fed S151, the United States Supreme Court held that an Oklahoma statute similar to the Florida statute was not self-executing and that actual notice must be given by the personal representative to known creditors and to creditors who are reasonable ascertainable.

It is therefore,

ORDERED,

1. The Motion to Strike the claim of the Florida East Coast Railway Co. is denied.

2. Either party may schedule an evidentiary hearing for the purpose of the Court determining whether the Florida East Coast Railway Co.’s identity as a creditor was known or reasonable ascertainable or whether the Florida East Coast Railway Co. had actual knowledge of the pendency of the decedent’s nonclaim period.

DONE AND ORDERED in Chambers at Green Cove Springs, Clay County, Florida, this 5th day of October, 1988.  