Opinion
August 5, 1952.
Appeal from the Circuit Court for Santa Rosa County, Victor O. Wehle, J.
Caldwell, Parker, Foster Wigginton, Tallahassee, and A.L. Johnson, Milton, for appellants.
Fisher Hepner, Pensacola, for appellees.
This suit results from a contest concerning the probate of the Will of William Ates, deceased. The County Judge of Santa Rosa County was disqualified and the Honorable D. Stuart Gillis, Circuit Judge, acted in his place.
Shortly after the death of William Ates a Will, dated March 15, 1949, and a Codicil, dated November 14, 1949, were offered for probate and were admitted, but within a few days thereafter three disinherited sons filed a petition to revoke the probate on the grounds of mental incapacity and undue influence. Prior to the filing of any answers, an amended petition for revocation of probate was filed on June 21, 1950.
Judge Gillis heard the testimony of 32 witnesses during four days consumed in the trial. After the testimony was transcribed, Judge Gillis heard arguments on the matter on February 9, 1951. On February 17, 1951, Judge Gillis entered a decree which contained the following:
"Having considered the testimony and the able arguments of counsel for the respective parties, the Court is of the opinion, and so finds and determines, that while the allegation of the petition to the effect that there was a lack of testamentary capacity on the part of the testator at the time of the execution of the will and codicil has not been sustained by a preponderance of the evidence, the failure to include the petitioners as beneficiaries in the original will and their specific mention in the codicil intended to effect their exclusion from substantial participation in the distribution of the testator's estate was the result of undue influence exerted upon the testator as alleged in the petition." (Emphasis ours.)
In connection with the Final Decree Judge Gillis also filed "Memo in Support of Final Decree", which, among other things, contained the following:
"On April 16, 1950, William Ates, Sr., a resident of Santa Rosa County, died leaving a last will and testament dated March 15, 1949, and a codicil thereto dated November 14, 1949, bequeathing the whole of his estate to seven of his ten children, excluding therefrom the three petitioners herein who now seek a revocation of the probate of said will and codicil alleging as the loss of testamentary capacity on the part of the testator and of undue influence exerted upon him by the seven.
"The deceased was ninety-one or ninety-two years of age when he died. He had been afflicted with paralysis agitans — palsy — for many years but until about two years before his death was very active in and about his business affairs. He was a man of industrious and thrifty habits, of vigorous intellect and determined character, and had accumulated considerable wealth consisting of money, live stock and lands.
"His son Jeff, one of the disinherited children and a petitioner here, was his father's chief aide in the management of his business affairs assisted from time to time by the other brothers. A daughter, Tunie, one of the seven beneficiaries under the will and one of the executors named therein, kept the books, paid the bills and lived in the home with the father for several years prior to and up to the time of his death.
"This record discloses a series of events the chronological order of which as well as their nature and the facts and circumstances surrounding their occurrence considered in the light of applicable presumptions of law and fact and the burden of proof resting upon the petitioners form the basis of my conclusion.
"On January 23, 1948, the deceased deeded to his son Jeff certain real estate of considerable value — a transaction of which, it appears, not all of the prospective heirs became aware until later that year, some months after the safe episode next mentioned.
"In June 1948, the deceased fell ill with a respiratory infection and was confined to his home for a short while, though not completely bedridden. During that illness two iron safes which the deceased kept in a room adjoining his bedroom and in which was a large sum of money — mostly contraband according to the testimony — were opened and the contents removed — one of the safes being carried some miles away, broken open and later buried by the petitioner Thomas (Dick) Ates. The details of this transgression are related by petitioners who are in substantial accord on all points. Others of the sons and daughters, claimed by petitioners to have been present and participating, with one exception, deny any knowledge of the occurrence. They all deny the equal or any distribution of the cash contents of the safes. The exception is one of the daughters who testified that she was silenced by the threats of her brother Jeff. All three petitioners testify that the transaction was agreed upon in anticipation of their father's early demise and that all were sworn to secrecy.
"To insist that the occupants of the home and constant attendants upon the sick head of the house who was at the time rather closely confined were without knowledge of this occurrence, whether or not there was an equal or any division of the money among the ten, is to unduly tax the credulity of the Court. Likewise as to the suggestion that the deceased who was not entirely bedridden and who shortly recovered from his illness so as to be able to travel about town for several months thereafter was and remained ignorant of this premature appropriation of his liquid assets. However, the transgression, whether of common knowledge or whatever the degree of culpability attributable or attributed to one or more of the prospective heirs serves chiefly to illustrate the amicability of the relationship between the sons and daughters which ended with the discovery of the deed to Jeff. It possesses little if any probative force as to the issue of undue influence and none at all as to the issue of testamentary capacity, unless we are to attribute to the deceased a total lack of the power of comprehension which is not justified by the evidence. It is to be noted that the testimony of the petitioners, the only witnesses testifying on the point, followed the testimony of another witness, not a party to the litigation, which called for an explanation — or so it must have seemed to counsel. It is a mere coincidence, of course, that the two-year statute of limitations on the prosecution of crime expired on the eve of these revelations.
"Later in the year the deceased again became ill and was thereafter closely confined to his room, the ravages of old age and the disease from which he suffered taking their physical toll. It was during the early stage of this later illness that the fact of the conveyance to Jeff became known for the first time to some of the members of the family — whether it was known to any (all) of them is not shown. Between the time of this discovery and the execution of the will on the following March 15 occurred the events relied upon to establish the allegation of undue influence. The discovery aroused the indignation of some of the others, especially the daughters, two of whom had joined their sister, Tunie, in the home where they remained almost constantly from the beginning of their father's last illness until the end some fifteen or sixteen months later. It marked the beginning of a family feud in which the sons and daughters were arrayed in two factions, these petitioners constituting the minority, climaxed by hot words and physical altercations in the environs of the court room where this hearing was being held. Demand was made upon Jeff to restore the property which had been deeded to him to the estate as a condition precedent to peace in the family. Upon his refusal, he was repeatedly and persistently accused in the presence of and to the father of `stealing', `taking' `selling' his father's cattle — accusations not sustained by the evidence. There were occasions when officers of the law were called to the home to quell threatened physical encounters, all in the presence and hearing of the deceased who was extremely weak and growing weaker physically with a concomitant lessening of mental powers and the will to resist the appeals of those who conceived themselves to have been discriminated against in favor of one of the heirs at law.
"On January 3rd, 1949, the deceased granted to his son Maxwell, nicknamed Peanut, power of attorney to manage his business affairs thereby displacing Jeff who had for many years been his father's right-hand man devoting all of his time and attention to the business though at a salary which in these days of synthetic and governmentally sanctioned inflation seems most meagre, realization of which on the part of the testator may well explain the advance or gift which caused the rift in the family.
"On January 14, 1949, the deceased filed his bill of complaint seeking to set aside the deed to Jeff. I find nothing in the bill as originally drawn or as informally amended from which it may reasonably be inferred that, as seems to be the implication of counsels' argument, the able attorneys there proceeded upon the theory of their client's mental incapacity. Neither is there anything in the defendant's answer to that effect. I am of the view, however, that the suit, as well as the earlier displacement of Jeff as the manager of his father's business affairs, was influenced by the same members of the family who so strenuously objected to what they regarded as Jeff's preferment and whose overtures to restore the property Jeff had rejected, the allegation of the bill to the effect that the deceased intended that all of his children should share alike in the distribution of his estate being of a persuasive nature and expedient to the end that the main purpose of the suit, i.e., the cancellation of the deed to Jeff might be accomplished.
"On March 15, 1949, the will was executed, the data for which the attorney who drew it obtained some ten days or two weeks before. * * *
"On July 27, 1949, two of the petitioners here, Thomas nicknamed Dick, and Willie, following a breakdown of negotiations looking to the joint and co-operative control and management of the business affairs of the deceased, filed a petition seeking an adjudication of their father's physical incompetency and the appointment of a guardian to manage his business affairs. * * *
"The next and last of the series of events to be considered is the execution of the codicil on November 14, 1949. It was drawn by the same attorney who drew the will and attested by the same witnesses. * * *
"While mindful of the rule that a duly executed codicil which does not revoke any provision of the original will is to be regarded as a re-publication and ratification of the latter, it is my opinion, in view of all the evidence in the case and the reasonable inferences to be drawn therefrom, that the original will was the result of undue influence exerted upon the testator by certain of the seven beneficiaries named therein; that the testator while possessed of testamentary capacity at the time of the execution of the will was so weakened by physical infirmity and mental deterioration as to be unable to resist the persuasion and importunities, amounting to moral coercion, of those who had arrogated to themselves the practically exclusive care and control of the deceased, denying other members of the family access to him for the last several months of his life, pointing accusing fingers at the petitioner Jeff, which the evidence in the case does not justify, the other petitioners, Thomas and Willie, being also the objects of displeasure by reason of their alliance with Jeff, and that, therefore, neither the will or the codicil expresses the true intent of the testator and would not have been executed if he had been allowed to act according to his own pleasure." (Emphasis ours.)
In due course an appeal was taken to the Circuit Court from the Final Decree of Judge Gillis.
Due to disqualification of the Judges of the Circuit Court of the First Circuit, the appeal was heard by Honorable Victor O. Wehle, Circuit Judge of the Sixth Circuit, assigned to the First Circuit. In his Decree and Opinion Affirming the Order of Judge Gillis, acting as County Judge, Judge Wehle, among other things, said:
"If the writer had been sitting as County Judge in the trial of this cause he would not have arrived at the same conclusion as was reached by Judge Gillis. In the writer's opinion the preponderance of the evidence was to the effect that there had been no effective exercise of undue influence and if the writer had been so sitting as County Judge he would have denied the petition.
"However, there was substantial evidence to support the findings of the acting Probate Judge and the writer interprets the decisions of the Florida Supreme Court to require him under such circumstances to affirm the decree of the lower court. * * *
"The decree of the acting County Judge is therefore affirmed."
From the order entered by Circuit Judge Wehle this appeal was taken.
On appeal the appellants have propounded one question which is as follows: "On appeal from an order of a Probate Judge holding a will to be invalid for undue influence, is the Circuit Court required to affirm such order when a review of the entire record shows by a preponderance of the evidence that there had been no effective exercise of undue influence, and that the Probate Court misapprehended the legal effect of the evidence and applied an incorrect rule of law to the evidence before him?"
The question is based upon two conclusions: (1) "the entire record shows by a preponderance of the evidence that there had been no effective exercise of undue influence", and (2) "that the Probate Court misapprehended the legal effect of the evidence and applied an incorrect rule of law to the evidence before him".
The above two conclusions upon which the question is based are not borne out by the record or the evidence taken before the Circuit Judge acting as Probate Judge.
Able counsel for the appellants urged, after reciting much of the evidence, that such does not constitute an exercise of undue influence, but at the most "are statements made by quarreling children and could have created in the mind of the testator nothing more than prejudice, as distinguished from undue influence". We cannot agree to this conclusion.
This is a typical case of a sturdy, determined, strong-willed American citizen exercising all of the powers possessed by him to rear a decent family and accumulate something for himself and for his children. There were ten children. Most of them moved away to establish his or her own career. Some of them and particularly, Jeff and Tunie stayed at home. For approximately 20 years Jeff was the right-hand to his father; he was his most trusted son; he knew his father's business; he handled his father's business, under the direction of his father as long as he was able to give directions. In assisting his father to accumulate a large fortune, estimated at one-half of a million dollars, he received only $50 per month.
These children lived on good friendly terms as brothers and sisters until their father became ill and it dawned upon them that death was imminent. All, or most of them, then moved back to the family homestead. Some of them learned that Jeff had been rewarded by his father by the execution of a deed to a valuable part of his large holdings. Then the frailties of human nature broke loose with tremendous fury. Disputes arose — brothers and sisters began to call one another names. Some of the children in the presence of the ailing father demanded that Jeff deed back the property which his father had deeded to him as a condition to peace in the family. When he refused, he was repeatedly and persistently accused in the presence of and to the father of "stealing", "taking" and "selling" his father's cattle. Because two of the brothers would not join with them in attempting to poison the mind of the father against Jeff, their anger was vented upon these two brothers and because of this, Jeff and two of his brothers became aligned against the interests of the other brothers and sisters. Greed, selfishness, contempt and hatred, even to the extent of physical violence, resulted from what the appellants claimed to be "statements made by quarreling children".
From the beginning of recorded history when Cain slew Abel and when a scheming and conniving mother by fraud and deceit secured the blessing of the father upon Jacob, which was intended for Esau, Genesis 24:25-41, down to the present time, enmity, jealousy and greed have produced feuds, physical violence and killings between brothers and sisters over property and estates created or accumulated by the toil, industry and thrift of others. Such seems to be human nature. Laws and the Courts cannot, or have not, changed human nature. They can by just, fair and impartial administration curb these evils to some degree.
Some of the essential steps in asserting undue influence upon a person against those for whom he has love and in whom he has confidence is for some other person (1) to have access to the person to be influenced, (2) to administer to the needs and wants and wishes of such person, (3) to keep those for whom the person to be influenced has love for and confidence in away from the person to be influenced, (4) to establish a confidential relationship, and (5) to tear down this love and confidence by insinuations and accusations.
All of these elements were present and in addition thereto, the activities of some of those to be benefitted in procuring a lawyer to draft the will; some of them being personally present when the will was discussed with the lawyer and when it was executed; the reasonableness, or unreasonableness, of the will; deceased's physical condition at the time the will was executed; his dealings with his children, prior to the time he was confined and secluded, and saw only those whom the beneficiaries permitted him to see.
We have carefully considered this record and all of the testimony. There was not only substantial evidence to sustain the Acting Probate Judge, but the preponderance of the evidence as shown by this record sustains his Final Decree and his Memo in support thereof.
The duty of Circuit Judge Wehle was to enter "a judgment, sentence, or decree as the Court below should have given". There may have been surplusage in a portion of Judge Wehle's Order of Affirmance, but such surplusage cannot affect his ultimate determination that "the Decree of the Acting County Judge is, therefore, affirmed". The Decree affirmed was such "as the Court below should have given", and did give.
It is urged very strongly by the appellants that the County Judge's Order should have been reversed because it appeared that he misinterpreted the legal effect as a whole and applied a wrong rule of law to the evidence. We do not agree with this contention. The Final Decree of the Circuit Judge, acting as County Judge, shows on its face that although the evidence was conflicting, he found that the preponderance of the evidence supported his conclusions, and he applied the rule that the burden of proof was upon those attacking the Probate of the Will. The case of Lambrose v. Topham, Fla., 55 So.2d 557, has been cited by the appellants in support of their position. In the Lambrose case the record shows that the County Judge had applied an incorrect rule of law to the evidence in a common-law marriage case, and it has no bearing upon this case. In the Lambrose case an incorrect rule as to the burden of proof was shown. In this case there is no misapprehension of the legal effect of the evidence as shown by the record and no incorrect rule with reference to the burden of proof was applied.
A very recent case is applicable in this case. In re Manney's Estate, Fla., 42 So.2d 535. In this case the Court said:
"The sole point that we are required to answer, is whether or not the evidence was sufficient to show that the 1946 will contained the usual revocation clause. * * *
"We think the evidence is such that the Probate Judge could have reasonably reached the conclusion he did. The Circuit Court should not have disturbed it, so his judgment is reversed."
In this case an able Circuit Judge, who had lived in his Circuit all of his life, was assigned a most difficult task of hearing conflicting evidence of his neighbors concerning the Probate of a Will. The Judge in this case is a man ripe in years and rich in experience, which qualifies him to be a good judge of human nature. He knows the people of his Circuit, their manners, mode of living, localisms, eccentricities and idiosyncrasies. He saw and heard these people testify; he was able to judge of the bitterness, jealousy and hatred which existed between some of them. While Court was in session a physical encounter occurred in the very environs of the Court room. He recognized and applied the rule that the burden of proof was upon those attacking the validity of the will. He recognized and applied the further rule that he must resolve all conflicts in the evidence; and after so doing, he decided that the preponderance of the evidence required the entry of the Final Decree and Judgment rendered by him.
As a matter of fact this record discloses that the Circuit Judge acting as County Judge was extremely careful and cautious in applying the proper principles of law to this case. See Redfearn on Wills and Administration, 2d Edition, Sections 47 and 48, page 71.
The able Circuit Judge who heard the appeal from the Probate Court could not pit his judgment as to probative value of the evidence against that of the Circuit Judge acting as Probate Judge. Watts v. Newport, 149 Fla. 181, 6 So.2d 829. Had he done so in this case, it would have been reversible error. In re Aldrich's Estate, 148 Fla. 121, 3 So.2d 856.
The Opinion and Decree of the Circuit Judge Affirming the Final Decree of the Circuit Judge acting as a Probate Judge, is
Affirmed.
SEBRING, C.J., and TERRELL, CHAPMAN and HOBSON, JJ., concur.
THOMAS and ROBERTS, JJ., dissent.