*1 377. - foreclosure, rather than a'question parties a decree of itself. proceeding There for case docket is no occasion on the retaining consideration; therefore, further argument for on the- etc., Stroud, authority Lodge, of Grand v. supra, order from will appealed time at this affirmed as a means of disposing case now before dismiss motion us appeal as frivolous. Affirmed. J., concur. Terrell,
Ellis J. J., P. J., concur Whitfield, Buford, BrowN J. in the opinion and judgment. Appellant, W. Gardiner, Elizabeth Goertner, Francis Appellee.
Opinion July 1932. Opinion on Re-hearing filed 1933. June Opinion on Petition filed Re-hearing June *3 Price, Youmans, D. Mitchell and Florence Zaring and E. Attorneys for Brigham, Appellant; F. P. Robinson,
McElya Attorneys & for Appellee. here upon Commissioner. This case Davis, appeal from decree the Circuit of Court of affirm- County Dade an order and of ing County Judge’s of the Court judgment county, there- finding adjudging said instrument that admitted probate the will testament tofore last Gardiner, deceased, Francis in the of was not fact last Gardiner, testament of the said Francis and revoking probate the thereof. of under and proceeding
The was instituted virtue Florida, Compiled Section 5476 General of (3611), Laws the contested instrument admitting not Though that Gardiner, petitioner, Francis signed the who repre- was deceased, to be of sents himself the son the the seeking for, allegations prayed chiefly upon showing relief relies and undue influence testamentary brought bear incapacity him testator induce execute the instrument. the order the County Judge probate In revoking grounds, will, ground, appear upon the it not what does was question instrument dohclusion the' he based that his Gardiner. Francis the said not will and testament of the last case, consume would the evidence A statement therefrom. would be derived space benefit great no much testator’s name was shown that that was say it Suffice it to the war changed during that Goertner with, Gardiner; relations early that in life he into entered the'mother, constitute appellee probably that would a. relations continued law such marriage common when appellee, six before birth until months about then lived performed; marriage they a ceremonial was 1901; time until greater part there- together son, not kept his wife or but after Gardiner did see wife, teacher in public touch school who York, the time New until City of about death/ but some time contributed small sums' to her at son. various of his during minority During times his father separation, appellee believed after years, separation dead. mother Prior Gardiner’s from with, became other- appellee, Gardiner intimate *4 women, until his lived from that time death openly,, he ones. time, time to Some of therm from with different his were known while with him friends ac- living 1901, as his wife. In he went quaintances through the usual them, of legal marriage one and with ceremony of woman, until he he lived thereafter this communi- time prior with her until short to his In cated death. 1928, proceedings instituted as a in Dade result decree rendered County, was alleged dissolving marriage. This divorce has been proceeding criticized the is free from say Court cannot that it the sus- here fraud was perpetrated upon that a the Court. picion The' decree, 28, after of granting next the said November day an appellant, agree- Gardiner of pursuance and the them, ment between were prin- previously entered'into cipal in a figures performed marriage ceremony which was Dade lived as and thereafter hus- County they together November, band and wife until Gardiner’s death- There no evidence before Court show that Gardiner wife, had ever been divorced from his the mother of first appellee. It stated her wife) was first (the upon stand, obtained, divorce ever witness had been no 1922; far as she knew. On so and after November executed as five wills as codicils many many as Gardiner 24, 1922, to his wills. will To a executed November five was attached codicils dates. Four bearing different the wills were from September 23, executed 1, 1929, November both inclusive.
Testimony was adduced condition to show physical testator, years and that for number of. he been treated disease, diabetes, Bright’s for arterio schlerosis in early syphilis, manhood had contracted cured; was never possibly that from time time during treatment, last years bis hospitals for and medical effect, produced testimony to show if these any, what diseases would have the mind. A number of friends and persons with whom Gardiner dealings, had business men, and medical all of whom had more or opportunity less death, observe his demeanor some timé his before produced were purpose for the mental showing con- before, of, to, dition about time and subsequent execution in question. A number checks signed testator the time about of the execution of will, other' were instruments that shown have executed, as well written array criticism *5 recently him, books in read were received evidence. The witnesses who had seen him and testified his mental as to the will doctors, witnesses to nurse and laymen, condition— of capable testator mentally of the was opinion —were be' same will, had the as or appeared that he making concerned, been, was as always mentality had so far an extra- the unrefuted discloses that testimony if in mental ordinary specialist mind. One not a brilliant diseases, Gardiner, opinion basing had not seen who ailments, as thte shown evi- history of physical testator’s dence, his business transactions with conversations friends, evidence, as shown in together with specimens signature, of his which termed evidence indicated what was dementia, of a dilapidated which personality, accompanies stated testator qualification without was suffering dementia, organic state brain and accompanying mentally incapacitated make a disposition rational of his property signed at the time instrument troubles, Another in mental specialist him. just as credible to, as the one just response a hypothetical referred that he mental de- question, sign stated “see could no rangement the description just have you given from man’s activities.” question practice
A over raised-by appellant has admission of certain but testimony by appellee, offered do, the views we entertaining com- mental of testator at petency of execution of the will time 1, 1929, November this becomes of importance question no case. far probate The of wills so as concerns any personal shall estate as to will of validity conclusive and the probate, probate of wills so far as real shall be evidence prima it concerns facie property probate, of wills which it is validity suit any or controversy in relation to concerning the property
383 5475, thereby devised or Section bequeathed. Compiled Laws, General 1927. person interested make Any may application to the Court
* * * * * * of probate, a revocation the said such shall, upon court petition parties, answer of * * * and the proof adduced them confirm or revoke the probate said according justice law and case. 5476, Laws, Section General Compiled It is settled here that in character this proceeding testator at time of presumed a will is be making sane and that “the burden presumption rebutting make establishing incompetency proving a will or undue influence upon” destroy so him to operating free agency of testator rested upon petitioner. Schaefer v. 170, Voyle, Walker, 88 102 Fla. So. 7. also v. See Barry 533, 137 103 Fla. So. 711.
The same
Travis,
principle
stated
81 Fla.
Travis
209,
398-9,
87
762,
So.
28 R. C. L.
we find it stated
weight
that the
authority “is
effect
a contest
of a
heretofore
has
been duly
probate
admitted to
the burden of proof
is on
contestant
establish
grounds of contest. The probate
prima
is held to be
facie
attestation,
evidence of the
execution
and validity
due.
the will
the burden is
contestants to overthrow
also,
340,
See
Hayes,
will.”
55
Estate
135
Cal.
Pac.
449,
note;
Ann. Cas.
Wp are mindful the rule if there is evidence to support Court’s finding, and it not clearly appear does erroneous, will not be disturbed. Schaefer-Voyle, *7 In cited. Schaefer-Voyle cases the and .other therein
'supra,
one
like the
principle
applied
proceeding
case this
a
Where, however,
bar.
probate judge'misapprehends
at
the
the
effect
his findings
of the
as an
legal
éntirety,
evidence
there is
because
evidence
bé
on appeal,
not
sustained
.should
Morgan,
Hamilton
be
v.
findings
predicated.
on which
may
Co., 99
F.
311,
80;
v.
Trust
93 Fla.
112 So.
Mulford
C.
600,
Fla.
126
76
So.
will,
agree-
deed or other
should,
A
not
aside a
court
set
not amount
if
does
for mere mental
it
ment
weakness
nature
the trans-
and
comprehend the effect
inability to
or
imposition
evidence
unaccompanied by
action
is
42,
243;
85 So.
Douglas
80 Fla.
Ogle,
undue influence.
v.
775,
Hartt,
47
Travis,
Fla.
v.
56
supra; Clarke
Travis v.
“A as execution ‘sound understand mentally of the testator comprehends ability iff general property nature extent way of, disposed relation to testator’s those who be will, benefit from the claim substantial naturally would of the effect general understanding practical as well free exercise of the The use and of a will as executéd. prevented mind’ many *sound a will be making may a if mind’ but testator has ‘sound when makes ways;
385 will, free use be its and exercise will assumed until the clearly appears.” contrary Morgan, Hamilton supra. “The rule undue influence seems to well settled that deed, will, aside of justifying setting other contract must be such as to the free agency person dethrone will of making of the rendering product act another instead his own. The character of trans action, the mental condition of act person whose is in question, parties relationship concerned other, each are all elements be taken con into may sideration in DuBois, the .rule.” Peacock v. applying Fla. follpws So. 321. itWhile from this doctrine *8 (and attack it has so “an on will held), that the ground of influence the existence of undue concedes testamentary capacity,” (Hamilton 28 Morgan, v. supra; 139; R. 1 Woerner, 61; C. L. Am. Law of Admin. 3rd Ed. 29 Am. Enc. Eng. 104), & always proper Law it to in is quire the mental condition of at physical into testator the time of execution of degree his will. “What of influence vitiate depends will bodily much testator, mental vigor for which would sickness, or dissipation, age overwhelm a mind weákened by all might prove no influence at of to one mind strong vigor life.” Woerner, of I American Law Admin of istration, 60; 3rd R. Ed. 28 C. L. 139. greater scope
It has been said no subject affords for juries indulgence personal opinions and views right wrong, general because no rule can be down laid ascertain nature influence under extent or, acted, testator have may where ascer- this is tained whether in- to determine what extent such Woerner, fluence legitimate or 1 unlawful. Am. Law of Admin. 3rd Ed. 57.
Undue influence is not exercised usually openly
386 hence others, proved, be directly that it presence may so and circum- facts indirect evidence of proved by bemay it 142-3; 28 L.C. be inferred. R. stances which may from it 1164; 61; Cyc. 40 1 Admin. 3rd Ed. Woerner Am. Law Law, one of such No Eng. 29 Am. Enc. 2nd Ed. & alone, circumstances, may be of considered when facts other facts may combined with weight much when but 40 1166-1190. Cyc. issue. sufficient to establish the testator influence over a Mere to exercise opportunity will, not, warrant unjust in connection does even influence, in absence af- of undue presumption exercise, mind testator’s firmative evidence of where its will, the contents of his and he understands unimpaired is Admin., 60; Woerner, 3rd Ed. Newman Am. (1 Law is 254.), yet 66 L. R. Smith, See Annotation A. supra. be considered. 29 Am. & may Eng. a circumstance that Law, 2nd Ed. 113. Enc. W. 110, it is v. Fiske, In Wis. N. Elliott :
said in- susceptible undue true a testator “While it thereof, a disposi- the exercise fluence, an opportunity its exercise it, and a must indicating to exercise result tion’ before a evidence satisfactory clear be established by *9 will, aside clear estab- is yet a justified setting Court may, elements three of essential lishment of these compel the inference evidence as forth slight additional set exercise.” of its prove itself
The unnatural character of will not of a does Admin., influence Am. Law of (Woerner, undue 3rd Ed. supplemented other cir- 62), yet by suspicious when that is cumstances, upon beneficiary. may it throw favored onus Smith, 633, 677, 236; Fla. 82 1 77 So. Newman v. Woerner, Am. Law 3rd 62. Admin. Ed. of exists or’
Influence which from affection desire gratify to
387 New undue influence invalidate a is not sufficient to will. Smith, man v. supra. is from the
No raised presumption of influence fact undue benefits were or persuasion of kindness that obtained acts 250; A. L. I beneficiary. testator Note 66 R. toward Woerner, If, Am. 3rd 59. Law Admin. Ed. how- See ever, impaired, mind not though extent will, making mentally incapable him and his making physical condition he did have strength such not of will enough influence bear brought to resist the him, in connection with other solicitations circumstances may sufficient to free destroy testator agency and control the will, under disposition property validity thereby (28 R. C. destroy L. 138; 40 Cyc. is true even 1147), when influence over the testator 1148; 40 Cyc. is exerted wife. 29 by his Law, & Eng. Am. Enc. Ed. 2nd “Undue influence an person act have affect must been exercised particular with reference to act *10 Smith, supra. influence.” Newman great
entitled to 250; Woerner, Am. Law of I Annotation 66 A. L. R. See Ed. Admin. 3rd 62. an “That said:
In Court case, the Newman-Smith a intentions is entire change testamentary from former influence of undue support to claim strong circumstance well supported by is authorities.” testator, sus- mental
The conditions physical and influence, attending his age, to circumstances ceptibility may are of consideration subjects execution of the will influence undue become -whether important-in determining is to proper even exerted. It Cyc. beneficiary part consider the or motive on interest testator, surroundings influence a facts unduly exercise influence. 40 such giving opportunity them Cyc. 1162. Law,
In 29 authors Enc. Ed. Eng. Am. & 2nd the will was drawn that “the circumstance that or say under direction whose beneficiary, family of a or one beneficiaries, in itself sufficient invalidate are while not even any presumption a will rise of undue or give influence, generally is nevertheless of such a character as suspicion suspicious scrutiny, to excite Court to circumstances being greater proportion to other less taken, such or the relation between existing interest R. (See Annotation 28 L. A. beneficiary.” testator and also This statement is 281.) many sustained by [N. S.] hand, authorities. On there num- other are great also a held, ber of which it was where one cases who draws will thereby, presumption is benefitted generally influence, will procured by raised undue especially this is so when the one stands drawing confidential in a relation the testator. See cited cases in note 66 A. L. R. 244.
389
In
law,
presumption is in favor
equity,
at
of the
every
the trial
decree
ruling
correctness
court
a
based
or
on
largely
solely
questions
not
dis-
fact
be
DuBois,
turbed
erroneous.
v.
clearly
unless
Peacock
90
162,
321;
Warren,
Fla.
105
578,
So.
McMillan v.
59 Fla.
825;
52
Thornhill,
531,
34;
So.
Millinor v.
63 Fla.
58 So.
McRae,
141,
v.
100
Harp
Fla.
The burden is
appellant
on
to show that the
finding
order of the
probate
decree
judge
same
affirming
were clearly erroneous.
v.
92
Wang
Nat’l. Bk.
Fla.
First
974,
Gordon,
110
527;
1110,
So.
Rundel v.
92 Fla.
111 So.
386;
Co.,
v.
81
303;
Stevens
Fla.
88
Tampa E.
So.
Co.,
Taylor
Co. v.
Wood-Hoskins-Young
Development
98
156, 122
224;
Fla.
Goodspeed,
So.
Howard v.
101 Fla.
135
294;
So.
Foxworth
Maddox,
161;
So.
136 So.
343;
In the light of the it foregoing, upon us de- devolves whether termine appears it from the clearly facts adduced evidence that decree Circuit Court affirming and order of finding Probate Judge is erroneous. evidence The before the judge tends county to show that the testator man 59 years was a about old time at the of his death; predilection had that he for women; that he had been-treated disease, for Bright’s diabetes', arterio sclerosis other troubles years, for a number of and that one of toes given his great him a deal of trouble for several death, doubtless, years due, before his to his diabetic con- ; dition for some before years death he was times at diet, on during times condition would improve, and that used saccharine sugar; he instead of that about the middle of September, entered hospital in Miami his bad toe amputated and had and returned home after been in the having hospital or six five days. From that until he was time his death under the care physician. porch, may sit on would
On occasions ride; the greater but for a short occasions went one two *12 part The latter of October time he was in bed. part of the foot, because of his agony he suffering excruciating was in- physician to his attending disturbing which was rather Tab- pain. as able alleviate the had to asmuch he not with, be taken to patient lets of luminal were left 30th, and a physician sleep. him On October his make condition found in a physician, drowsy him consulting too of tablets. taking many attributed to his they continued, pain according his foot The terrible 30th, his for a week after October physician, of statement been elevated it after his foot relieved had greatly but was His pillow days. physician, though knowing for some on a ice,’ thin believe he did was a “skating he on not days condition until before moribund or about two dying death, before death. or three his when days Until his two in, appellant did the nursing, a called trained nurse was by Thompson, times- her father-in-law. relieved being at were termed some appellant relations with Gardiner’s affectionate. times his witnesses as Several last during ill- Thomas, ness, plans Dr. physician, he discussed with his house, time says: the doctor “Each new and building house, he little with his up. about was satisfied bring would it, forth; waterproof and so get up he had time if he wife build her home and promised but his he build much more on feet could get if he could his reasonable, he it. same go through would with At the but friend, Salman, not.” E. O. testi- preferred His time he July, the end or early part' fied towards Gardiner, while appellant appellant’s daughter August, Gardiner, North, quote visit in were witness’ interest, “complained lack language, to me of feeling (end the same as I had noticed at home when my July). He he being also expression to fact that made nagged expendi- things talked doing making into afford, tures which he he in particular did feel not could he mentioned house and buying furnishing Miami, same in construction"; he under which was evidently could not expenditures, afford on some such oc- he little got sleep during casions he very mentioned that previous back and night continually he was arguing wife, Elizabeth, forth with his whom meant evidently However, Mrs. Elizabeth W. Gardiner.” in one Salman, 5th, 1929, letters to friend dated October said, “We are in the winter new going put building I home have had years.” on the for the program three past One house, Dr. conversations Thomas about the *13 took place on the day will was executed and while the doctor in the was room the testator appellant told to call “a lawyer,” house, and when the doctor left the the lawyer, Mr. Zaring, was there. in he went Zaring testified that bed, and testator was in sitting up smoking, and “after some conversation general he said he to wanted make will; memorandum; that he had dictated a and he said that will, he made previous he just after been married had to Mrs. as he called her—that had Gardiner —/Elizabeth/ Elizabeth, provision made for he been but that had thinking matter and over decided her had to He give everything. deal, he said that had about knocked the world good women, experience had had men and he but that there think soul in didn’t was a the world any had that him, him, affection or genuine claim any except Elizabeth. He he previous said that had made wills before married, he had scattered his property around with- out caring much where it went. But he said things were had, now different. That Elizabeth as he used the expres- sion, sickness; ‘been a brick’ through that she had made ‘And'furthermore,’ had.
him the he real home had ever only Miami, said, in in- money have lost considerable he T capital vestments, money,’ out a lot of and that his paid down, said, have, in been T this deflation had whittled tie said, ‘my has in the stock market’—he been going that thousand than were. they securities are worth fifty less I don’t think than any So more altogether, there I Eleanor Elizabeth comfortable. 'So enough keep them.’ I think have put everything given everything — hand, well, I have the on the lying it was bed— there, files; me told he had original attached to —he Elizabeth, me to read it over. dictated and wanted said, Well, it, lawyer. are a one you I read I ‘So That’s Pie He says, is it?’ your accomplishments, guilty,’ ‘Not I T that.’ And says everything complimented but have ‘Well,’ said, him on man that ‘any his legal phraseology. he, had, experience had as much business as to write ought * * * him, think, I I if he a decent instrument.’ asked up bond, said, wanted a he said ‘no.’ He gets every- ‘She as I just Make it can.’ took simple you thing anyway. office.” I came back paper; unsigned, but The witness referred paper that property appellant. will, the form all of his giving of a the presence ap- afternoon will was executed That Zaring, Zaring Mrs. and the same was attested pellant prop- Humphrys. Under the all testator’s and Mrs. *14 appellant. was erty left to a shows appellant that was divorcee testimony
The of “Commodore” daughter-in-law (Walter) Thompson daughter years age; they and had a seventeen about that supported part her by were father-in-law some who was instrumental Gardner bringing what to appellant Commodore gether. Thompson, evidence testa It is that Butts, with whom testator tor and one T. friendly was on J. terms, were on a with Gardiner be fishing trip not so long marriage appellant fore Gardiner’s and while three conversation,, stated, them engaged were in a Gardiner “ Buttes, ‘Well, as testified I I toby you; tell am getting old, I any so haven’t business around the living house by he have myself.’ says, And T Elizabeth talking to it, I. about did know he ’but not' who was about. I talking except know to- that later day, don’t it developed1. And Elizabeth, he T have says, told and she understands that if (cid:127) we can’t be love and marry, any affection.’ there says, He home,’ said, Tf I her her, provide take care of a he good T think all of that.’ she And Mr. Thompson understands said, ‘Well, says: ‘Elizabeth deserves a yes,’ lot credit. a woman. has her good She is She raised daughter-—-she needs I help. And she understands think everything, Frank.” daughter-
It “Elizabeth” developed Thompson’s that in-law, the de- appellant statement here. Butts This nied Thompson.
Dr. Agos, called by appellee specialist on mental dis eases, cross-examination, shown being specimens signature all of testator’s from November evidence, were has ‘there that something said dexterity. caused the man lose his efficient manual Now is, what it mental or I don’t physical, but I pretend say; Benton, can see are Dr. different.” they specialist appellee, called further gave opinion went as his of, will, mentally capable testator was that the not making: 1st, at the time will of November was executed. R. Humphreys, Gardiner’s, N. a friend of testified that a week appellant, days or ten death, after testator’s mani- fested over failure anxiety to have the will probated, there was complication said possibly about, did not know (Humphreys) and that she then told *15 3.94 to appellant In letter from a son. a had
him Gardiner that in which January Ben” dated “My (.Newton) dear Miami,, said appellant in being refers appellee she he had me told that things, (Gardiner) “Frank among other that she mother), (appellee’s divorce from this.woman and married him and in nineteen age roped him at divorce, he had done he later that but believed obtained .1 where, so, there are records ask and no I did not him and obtained. where it among papers to show summer and during letters to his friend Salman In condi- physical he more than once to his fall refers in tion, part: he 7,1929, in a said September letter dated in trip to get I will be able “Sorry say my not that foot It out that trouble in is year. my France turns in 1926) that in toe of those affected is (one the bone one all necessary. Like operation will be diseased that be a this one performed) operations (before are they trifle, quick only couple days hospital mere convalescence, however, I, have prepared, quite etc. am development unexpected happen something totally —some on—and in the unique experience and so doctors doctor’s However, are. is cer- you be there very sorry done, going be I’mso tainly something necessary it, lack con- complete condition a through with but my I any job. fidence medical other experts', don’t like time to through case I will not with it in' any go In Europe I resign myself.” will have to so transcript to indicate
While there is nothing son, any manifested or entertained affection Gardiner least, appear, latter very small it does at boy, since regarded respect have him with that he that must did want the son to know of profligate life not had instance, Butts, led. For the witness testified that Gardiner him, had a boy told him that he without naming
co C\ 1-0 Gardiner, been educated said had he, hoy that that him- school made name for graduated law and and from he, Gardiner, self, had been such a “damn roustabout” and on he wouldn’t do to reflect his character or anything 30, 1928, letter, In a received his dated March hurt career. written appellee, mother identified having as the typewriter of Gardiner and earmarks which bearing taken in connection other with testimony indubitably point author, as referred person to Gardiner and to the therein “F” as none other than being appellee, we find the following passage: the exception
“With of a couple trfling legacies to friends, my provides all the estate- which may possess when I die and F. goes yourself and heirs. A certain party gets the use for life of small I house that own, life, a small fund these also trust both reverting that, F. at the death of this party. eventually, So anything I that have will Have go to F. and his heirs. designated also him as one of the executors trustees and full given have course, you, die, how locate etc. instructions Of when I facts, learn F. will but all he the facts will learn will he are yourself under heirs will of name. he- my If learns more party any than he this will you. learn give it from You can him any explanation you like without fear of contradiction. This seem may incred- ible true. I have but strictly kept m’y mouth shut re- none ligiously. So of his need be illusions shattered.” In the wills in evidence, several offered excep- tion the one November dated testator recognized right the natural his son participate estate, moral, legal if obligation, also a not due the mother appellee. 24, 1922, will of
In his November after certain making specific bequests, bequeathed' other son, “to my Francis $10,000.00,” all and residue rest Goertner the sum bequeathed “to remainder devised of his property heirs,” etc., Goertner, wife, Rose her former L. hut my him, “to residuary she then said estate preceded the event son, Francis Goertner named Francis Goertner.” my *17 will as co-executor. this 1927, 23,
In the September bequeathed will dated he to the $10,000.00, appellee the appellee mother the sum of to fund, $10,000.00, income created trust the a sum of life, for to Gardiner -paid from which was to W. be May death, corpus her of said fund paid and after the to-be to free the. created trust appellee trust. will also This fund, be Ethel Barrett paid the was to to which income life, the the- her at her death Gardiner term of during, residue to free property appellee rest and of his absolutely . trust. of any
In the after certain be- making will of March $5,000.00, the sum of the bequeathed appellee he quests, to $50,000.00 fund after trust the death of one principal sum Gardiner, the whom income fund W. to of such was' May live, Goertner, might to be so as she paid long to Rose $5,000.00 the the also appellee, mother' of sum the life, estate, then the sum principal residue of his her during paid be Goertner. Francis Goertner was to to Francis of said fund. named as one of the trustees trust 27th, 1928, December In the after cer- making will dated individuals, tain various bequests bequeathed appél- to to $5,000.00, and him lee the sum of named of his co-trus'tee estate, the the from a third of.same to to be.paid income life, and, her death third of said for at appellee mother of estate appellee. to the paid trust in the transcript is to show that nothing anyone There appellant present than when testator and other contents of appellant paper testator dictated turned over Zaring. reduced her and writing by week before Commodore Thompson testified that about left “Elizabeth death Gardiner told him that he had sole hands;” in given her he had everything executor— estate wife. other witnesses ap-. to his testified that Two pellant “had made him the ever had.” home only had
Considerable space has been consumed by parties both litigation because of criticizing opposing witnesses or for testi- result other motive their interest shading all mony. Nearly witnesses their gave testimony presence the trial facts and in judge, passing upon he, motive, no doubt, any, consideration if took into each of testimony. them their He was coloring witnesses, position judge credibility of and it was within his province evi- to find facts conflicting dence. His should not be disturbed finding unless erroneous clearly of the evi- against weight manifest Weadock, dence. 525; 101 Fla. Fulton Day So. *18 Limited, 773; v. 257, Clewiston 100 Fla. 129 So. v. Creel 461, Abernathy, 229; 102 Jordan, Fla. 136 100 So. v. Jordon 1576, 466; Harrison, Fla. 769; 132 Fla. Farrington So. v. 95 683, 116 497; So. Cramer Eichelberger, 96 118 So. v. Fla. 737; 522; 46, Co. 97 Young, v. 119 So. Shipley-Young Fla. v., Kirkland, 426, 131 Weaver-Loughridge Co. 99 Fla. Lbr. 784; So. 128, Hancoy v. Lambright, 101 Fla. Holding Co. 133 631; Brown, Turnipseed 542; So. 102 136 Fla. So. Florida and other cases. into consideration condition
Taking age the and physical testator, the fact the that was sick man very at time will, of the execution of the and the the evidence showing execution, circumstances connected with its preparation and the opportunity and motive on the for part appellant unduly her influencing give testator all of his property, the change intentions, from former testamentary the un- reasonable will, unnatural character and the evi- new, home was be built
dence to show that tending ap- testator pressure by because of to bear brought the County Judge misappre- cannot pellant, we say or- entirety of the evidence legal hended the effect 1, 1929, the will of November was dering adjudging that Gardiner and not the last testament will and of Francis revoked, nor say be can probate said instrument we. the burden of appellant showing that the has sustained order finding Judge affirming Circuit erred decree from is appealed The of the said County Judge.. affirmed. ordered,
It also and decreed that the adjudged tempo- is' herein by Court rary injunction granted heretofore dissolved. and the same is hereby this case been con- having CuRiAM. The record PeR Court, opinion prepared foregoing sidered and the ,of Sess., Chapter adopted by under Ex. Acts as its is considered ordered opinion, Court is be and same of the lower Court that decree court affirmed. hereby J., concur.
Whitfield, Davis, Ellis, Terrell J. C. J., J., dissent. Bufoed, Brown, Re-Hearing.
On case before Court adjudi- Curiam. This Per granted cation after an re-hearing which earlier decree opinion of this affirming appealed Court from was herein filed on July
The case brought here on appeal from the Circuit *19 Court of Dade from a County judgment affirming order the judgment County Judge’s Court of said county, and adjudged found that an instrument admitted to as the probate last and testament of one Gardi- Francis deceased, not in ner fact the last will and was testament Gardiner, pro- the said consideration which the Francis bate thereof ordered revoked. was
In our Mr. former Court opinion prepared by this' theory Commissioner decree the we affirmed on the Davis, in the that while there was evidence for the legal basis no order will on the County Judge’s probate the revoking testator, ground of lack testamentary capacity Gardiner, E. appealed Francis nevertheless the decree from supported could be as what the record showed by alleged undue influence to have exerted against claimed the testator.
But neither County Courts below—the Judge’s Court, Court nor the particular indicated what the Circuit was ground probate-of which the decision revoking the will are not satisfied that grounded. entirely We same conclusion would thát reached below Courts have been reached either by County Cir- Judge, by or Court, cuit case had consideration them of the its on merits' been confined solely question undue alleged influence alone. For reason we now rescind this and with- draw so our previous opinion much of to the ques- relates influence, tion of alleged undue the determination remitting of that back question to the Court of original jurisdiction, re-examined, there as a to be prop- retried reconsidered osition by itself, regard without standing anything Court heretofore may approved opinion have adopting prepared by Mr. Commissioner Davis. is doubtless
It within the of this Court on an competency this, appeal in examinatiop like an original make case facts, brought appeal, and from the record here de- duce the conclusion whether or as to not the judgment decree from appealed result, should be affirmed as a correct however decree was at arrived below. court
But are constrained think that the we better course
400 dis- where two present in a case like pursue, particularly sustain grounds insufficient to (one tinct undoubtedly involved, record show are with nothing judgment) upon which judgment which that influenced one was decisions, their set aside one the courts below based to' from, and remand and decree judgment appealed for further trial jurisdiction cause to the court of original re- re-heard hearing, controversy can be where this declared case in the of the law of this as light considered court, the elim- reference special final appellate with court has appellate ination of all grounds See supported. held can be challenge that no the will 176 U. S. Tompkins, Co. Milwaukee & P. R. Chicago, St. Rep. 336. 44 L. Ed. Ct. Sup. therefore, decree from upon re-hearing, appealed Now aside, and the the court of original is set cause remanded to permit re-opening leave that court to with jurisdiction, of tak- privilege grant leave to pleadings, enter necessary, further if and thereafter to testimony ing be according herein will new as judgment such .decree conclu- not inconsistent with the evidence and law and the cause, in this opinion filed original stated in our sions See re-hearing. on opinion modified and limited now 861, 146 re- Rep. (On 107 Fla. Sou. Pappas, Kurz v. 104). hearing, heretofore injunction granted
The constitutional writ mandate of upon'the will stand dissolved filing herein Court. in the Circuit this Court re-hearing of affirmance Original judgment vacated cause remanded for further proceedings court original jurisdiction. Whitfield,
Davis, BrowN, C. Ellis J., J., concur. J. Bu.ford, specially. concurs J., Terrell, J., dissents. *21 J., ap- think decrees concurring the Buford, specially. —I
pealed from I should be reversed as view record the because part there was neither a lack on the testamentary capacity exer- of the testator there influence proof nor of undue cised in which upon him the will causing execution the was attacked. in
Aside from the opinion day what said this majority is filed, the decree should be reversed for reason. One another claimed be who wife of Francis allowed the Gardiner was concerning over testify objection contestees transactions and between communications the witness the deceased. The witness was interested this party to litigation because if this consideration is under here held invalid she will. becomes under beneficiary former all transactions Therefore, concerning of her testimony between herself and the deceased was communications S., illegal and 2705 R. G. prohibited provisions under 4372 C. G. L.
. isAs this original opinion judgment shown Court, expressed original opinion as by majority Court, upon this largely illegal was based evidence upon evidence in the record except other had basis which no came testimony it into record in the of expert way given in answer to hypothetical which questions hypothet- ical questions were turn based evidence which had been given by witness.
This illegal permeates evidence so record quite that it some influence in I likely producing what conceive opposite been result has reflected in the decrees heretofore entered lower by courts and by this Court. Re-HeaRing Appellant’s Petition foe or Modifi-
ON Opinion in CertaiN Particulars cation of Relief.
and for Other Court a will contest which this Curiam. This is Per law, proceeding decided is under the rem. Barry has Walker, 103 Fla. 137 Sou. 711. Whatever Rep. may have, cause, in this previous¡ opinions, s'aid di our or the va either the fact rectly inferentially, discussing *22 testator, Francis lidity alleged marriages of the any Gardiner, an adjudication E. is not to be construed being non, fact vel or’of the or of such validity invalidity them, be here either of should marriages, question issue between the in put controversy after directly terested and therein be parties, decided on its required merits. however, occasion,
We for see no for further re-opening case, consideration the re-trial ex- of this any proposition cept proposition of of the will as validity disputed alleged affected the issue of concerning ündue influence which the cause was on be back re-hearing to referred for reconsideration and re-trial on that issue alone.
Neither do we wherein see we-would authorized at this time make an order future administra- dealing tion of the estate, assets of the that being question which should be determined in court of before we first instance decide undertake to it. 1933,
The opinion filed, heretofore as supple- June mented and clarified by what opinion, is said is ad- to, hered and mandate of this Court issue in ordered to 5, accordance with our judgment rendered June re-hearing. herein on motion appellant The for an order with the future administration dealing of the assets denied, appellant’s right estate prejudice without to the such relief below. in the court seek Davis, Whitfield, Ellis, TeRRell, C. J., and BrowN Buford, J., concur. J. Alachua, McIntosh, F. G. as Liquidator of the Bank of wife, Ellis, Appellant, S. Ellis R. Trixie Ap J. pellees.
Special Division A. Opinion filed June Watson, Jr., Baxter & Clayton and W. B. for Appellants; Smith, Y. Appellees. F. for
Per Curiam. This cause heretofore sub- having mitted to the Court upon the transcript of the record of herein, the decree argument briefs counsel the respective parties, and the record been seen having and inspected, and the Court now being advised of its judg- *23 ment to be in the given premises, it seems to the Court that decree; there is, is no error- in therefore, the said consid- ered, ordered and adjudged by the Court that the said be, decree of the Circuit Court and the same hereby affirmed. J., C. concur.
Davis, J., Buford, Whitfield J. Drug Company, Inc., Robinson, Minick Bird M. Frank Redman, P. and F. Robinson Appellants, v. R. G. J. Minick, Appellee.
Division B. Opinion filed June notes other acts. But the circumstance other acts were result of influence undue be may material as evi- dence that the particular act was also the result of such influence.” 29 Eng. Am. & Enc. Law 107. possessed Undoubtedly testator of mental capacity may make unreasonable unjust will and even disin- may herit his children (Hamilton v. Morgan, Newman v. supra; Smith, supra; 90; C. Applehans R. L. Jurgenson, 427; 327; Ill. 168 N. E. 67 A. R. 851), L. but there is always presumption against disinheritance (28 R. C. L. 81). “Apparent inequality unreasonableness a testa- entitled, mentary disposition proportion degree its flagrancy, some auxiliary influence on the question of or fraud capacity or controlling influence; and unexplained and combined with other evidence, corroborating be may