Opinion
March 17, 1950. Rehearing Denied April 12, 1950.
Appeal from the Circuit Court for Dade County, Holt, Carroll, Herin and Wiseheart, JJ.
Anderson Nadeau, Miami, for appellants.
Evans, Mershon, Sawyer, Johnston Simmons, Miami, Herbert S. Sawyer and Atwood Dunwody, Miami, for appellee.
The testatrix, whose will dated October 27, 1945, and codicil dated February 22, 1946, were admitted to probate by the county judge and sustained by the circuit court, was a remarkable person. During her ninety years of life, she accumulated an estate by inventing and marketing a type of curtain rings and an attachment to fasten ladies' skirts to blouses, and later through sagacious investments in Brooklyn real estate. She survived two husbands and two daughters, traveled widely and finally retired in Dade County, Florida, where she died on August 5, 1946.
Appellant, Russell A. Gair, her grandson and nearest kin, had acquired considerable publicity in his own right during his younger days, but it was of a kind not calculated to endear him to his family, and it is not surprising that testatrix excluded him from her will, stating in Item 9 thereof that he had: "* * * caused both his mother and me so much sorrow, his conduct has been so bad toward us, so many thousand dollars were spent by his mother and by me to save him from the consequences of his misdeeds, that I do not wish him to have any part of my estate." Instead she left her estate to her grandson, who is appellant's son, and to in-laws and friends.
One of these in-laws was the scrivener of the will. He, too, has had a noteworthy background, having practiced law in Missouri for fifty years, managed an unsuccessful candidate's campaign for the presidency of the United States, served as an Assistant Ambassador to France during the first World War, and authored a number of widely printed books.
From his testimony, from that of the Miami attorney who drew the codicil and had drawn prior wills for the decedent, and from the conflicting medical and lay testimony presented to the probate judge, it is evident that she deliberately excluded appellant from participating in her estate, that she was capable in the handling of her own affairs until her death, that she well understood the extent and nature of her estate and the objects of her bounty when she executed her will and codicil, that she well knew the contents of these instruments when she executed them, and that she was not unduly influenced in making these testamentary dispositions, notwithstanding appellant's charge that the distinguished scrivener and others had prejudiced the testatrix against him. At least, the probate judge was justified in so finding, for, as stated in Re Donnelly's Estate, 137 Fla. 459, 188 So. 108, at pages 117-118, and numerous other decisions of this court: "The court has ruled that the conclusion of the probate court on conflicting evidence will not be disturbed unless the legal effect of the proof has been misapprehended or there is lack of evidence to support the findings." No such error appears here.
It is also complained that the testatrix did not expressly request the attesting witnesses to subscribe their names to the will, although no such objection is made to the codicil. Notwithstanding the recital in this will, like most of the forms used by scriveners, that the witnesses attested at the testatrix's request, our statute, Section 731.07 of the Florida Statutes 1941, as amended, F.S.A., does not make an express request by the testator a prerequisite to the validity of a will. The same is true in most other jurisdictions, according to the authorities collected in 125 A.L.R. 414 et seq. Moreover, the codicil has the effect of republishing the will itself:
Section 731.17 of the Florida Statutes 1941, as amended, F.S.A.; Waterbury v. Munn, 159 Fla. 754, 32 So.2d 603, 174 A.L.R. 620; 87 A.L.R. 836 et seq.
The proponent of the will having met the burden of establishing formal execution and attestation of both the will and the codicil as required by Section 732.31 of the Florida Statutes 1941, as amended, F.S.A., this Court finds no reason to disturb the ruling made below.
The order appealed from is affirmed.
ADAMS, C.J., and CHAPMAN and HOBSON, JJ., concur.