Opinion
August 12, 1952.
Appeal from the Circuit Court, Dade County, J.N. Morris, J.
Franks Gordon and H.H. Eyles, Miami, for appellants.
Watkins Cohen, Tallahassee, and Michael M. Isenberg, Miami, for appellee.
The will of Emma J. Eberhardt was admitted to probate by the County Judge in Dade County. The appellants here filed a petition for revocation of the will on the grounds that the testatrix did not have testamentary capacity by reason of senility, and that Albert George Abnett, the sole beneficiary under the will, exercised undue influence over the testatrix by occupying a confidential and fiduciary relationship with her and induced her to make the will by falsely telling her that her relatives had forsaken her, or words to that effect, and that he prevented her relatives from seeing her except in his presence; that he locked her in her room and forbade anyone from communicating with her in his absence, and that he systematically forced his will upon her until she became subject to his wishes.
Answer was filed to the petition for revocation and the County Judge heard the testimony and received exhibits comprising about 580 pages.
Twenty-two witnesses appeared on behalf of the beneficiary, all of whom appeared to have no interest in the case, except the beneficiary. Thirteen witnesses appeared on behalf of the contestants and eight of them were relatives and were directly, or indirectly, interested in setting aside the will.
After all of this testimony was taken and the matter was argued before the County Judge, he dismissed the petition for revocation and confirmed the probate of the will. In his order the County Judge went into great detail as to the testimony and set forth his findings of fact and conclusions of law.
From the order of the County Judge an appeal was taken to the Circuit Court in Dade County. The Circuit Judge affirmed the order of the County Judge, and in so doing stated:
"* * * that the orders of the Honorable W.F. Blanton, dated May 21, 1951, were duly entered in conformity with the facts and the law. Appellants failed to offer substantial proof of their allegations. The evidence is clear and convincing that the probate of the Last Will and Testament of Emma J. Eberhardt should be confirmed. The Testatrix had testamentary capacity when she executed her will and there was no undue influence exerted upon her."
There is nothing new in this case. No good purpose could be served by summarizing over 500 pages of testimony. We have carefully examined the record and even though there may be some conflicts in the evidence, there was not only substantial evidence to sustain the findings and order of the County Judge, but the overwhelming weight of the evidence sustained such findings and order. In the case of In re Aldrich's Estate, 148 Fla. 121, 3 So.2d 856, on page 857 of the text, the Court said:
"In this case there is ample competent evidence to sustain the order of the County Judge that the will herein be probated against an attack on grounds that the testator did not have testamentary capacity and was unduly influenced; and such order was affirmed on appeal by the Circuit Court. There was no harmful error of law or procedure in either the Probate Court or the Circuit Court on appeal. The order of the Circuit Court affirming the order of probate, will be affirmed by the Supreme Court on appeal, even though there was substantial conflicting evidence and even though the burden of proof on the issue of undue influence was technically upon the proponents of the will, a confidential fiduciary relation of patient and his physician and business manager existing between the testator and a leading beneficiary of the will; where as in this case, the legal effect of the evidence, as to the testator's mental capacity to make a will and as to the circumstances attending the execution of the will, was not in favor of the contestants; and where, as here, it cannot be said with confidence that the will is not that of a competent testator. The beneficiaries of the will served the physical necessities of the testator during a long illness before and after the will was executed and the testator had only collateral surviving relatives who had not rendered him service or attention."
Upon the record had the Chancellor been of a contrary view and substituted his judgment for that of the County Judge, it would have been reversible error.
In the case of Watts v. Newport, 149 Fla. 181, 6 So.2d 829, 830, Mrs. Graham, who was about 94 years of age, executed a will in which she left the major portion of her estate in trust to the First Savings and Trust Company of Tampa for the purpose of erecting a memorial in Hillsborough County in honor of her deceased husband. On the day of Mrs. Graham's death a new will showed up allegedly executed by Mrs. Graham some years after the will which was eventually offered for probate. After the pleadings were settled, voluminous testimony was taken and the probate court found that at the time the last will was executed, the testatrix was not of sound mind and did not possess testamentary capacity, and further, that the will was the creature of fraud and imposition. He denied probate of this will. On appeal to the Circuit Court, the order of the County Judge was reversed and from that order an appeal was taken to this Court. In that case, in an opinion by Mr. Justice Terrell, the Court said:
"* * * The rule of decision is that if there is substantial competent evidence to support the finding of the probate Judge and he did not misinterpret the legal effect of the evidence as a whole, his decree should be affirmed. In re Donnelly's Estate, 137 Fla. 459, 188 So. 108; In re Wilkins' Estate, 128 Fla. 273, 174 So. 412; In re Alkire's Estate, 142 Fla. 862, 198 So. 475; In re Thompson's Estate, 145 Fla. 42, 199 So. 352.
* * * * * * *
"In giving the parties the benefit of his `own judgment based upon the entire record' the Chancellor was in error. He cannot pit his judgment as to probative value of the evidence against that of the probate judge. He must find that the probate judge applied the wrong interpretation to the evidence."
In this case there was substantial competent evidence to support the findings of the probate judge and he did not misinterpret the legal effect of the evidence. There was no error in the order of the Circuit Judge affirming the order of the Probate Judge.
Affirmed.
SEBRING, C.J., and TERRELL and ROBERTS, JJ., and HOCKER, Associate Justice, concur.
THOMAS, J., agrees to conclusion.
HOBSON, J., not participating.