Opinion
February 27, 1951. Rehearing Denied June 18, 1951.
Appeal from the Circuit Court for Dade County, George E. Holt, Marshall C. Wiseheart, Charles A. Carroll and N. Vernon Hawthorne, JJ.
Evans, Mershon, Sawyer, Johnston Simmons, M.L. Mershon, Atwood Dunwody, Miami, Tillinghast, Collins Tanner, Harold B. Tanner, Providence, R.I., for appellants.
Eugene L. Garey, New York City, Thomas Jean Ellis, Miami Beach, Hall Hedrick, Miami, Edwin F.X. Silk, Abraham Hornstein, New York City, for appellee Wilma Hatch Lee.
J. Mark Wilcox, Miami, and Thomas Jean Ellis, Miami Beach, for appellee P.L. Watson, coadministrator, c.t.a.
As we understand the record this appeal brings here for review a judgment of the Circuit Court of Dade County reversing an order entered by the County Judge's Court in a proceeding to set aside a will on the ground that undue influence was used in procuring the execution of the will and its continuation in force until the death of the testator.
Upon the appeal the Circuit Court found that the County Judge had misconceived the legal effect of the evidence upon which his order setting aside the will was based, and hence that the order should be reversed.
After careful consideration of the record and briefs we are of the opinion that the Circuit Court did not commit error and that the judgment appealed from should be affirmed.
It is so ordered.
SEBRING, C.J., and THOMAS, ADAMS, HOBSON and ROBERTS, JJ., concur.
TERRELL and CHAPMAN, JJ., dissent.
Abram Barker, a native of Fall River, Massachusetts, moved to Miami, Florida, in 1928, where he established his domicil and lived until his death on November 11, 1945. August 29, 1940, he executed a will in which he gave a life estate to his only sister living in New York and three nieces living in Massachusetts. He gave the remainder to Brown University at Providence, Rhode Island, to establish the "Abram Barker Fund," devoted to the education of worthy young men. On May 9, 1941, he executed a second will in which he gave his entire estate to Wilma Hatch Lee, who was at the time his secretary, bookkeeper, practical nurse and housekeeper. Other wills were executed by Barker prior to these, but they are only incidentally pertinent to this litigation. We hereinafter refer to wills in point as the will of August 29 and the will of May 9.
At the time he executed the will of May 9, Barker was approximately eighty years old. It was admitted to probate November 15, 1945, four days after his death. The contestants immediately filed petition to revoke the probate on the ground of undue influence and lack of testamentary capacity. This was the sole issue on which the probate judge took more than three thousand pages of testimony, permitted briefs to be filed, heard arguments and then found that while the testator probably had testamentary capacity, the execution of the will was brought about by undue influence. He accordingly revoked its probate and held it to be invalid.
Proponents promptly appealed from the latter order. After this appeal was taken contestants filed a second petition in the same proceeding to have declared invalid upon the same record the revocation by destruction of the will of August 29, because of undue influence practiced on the testator three months after the execution of the will of May 9, all allegedly part of the same transaction. The probate court refused to consider said application but made findings of fact with respect to events subsequent to May 9, 1941, and admitted photostatic copies of the will of August 29, with codicil thereto to probate. The original will of August 29, appears to have been destroyed by the testator. The proponents appealed from this order which on consideration was reversed by the Circuit Court. The latter judgment was likewise appealed to this court, but we are concerned here only with the order of the Circuit Court reversing the order of the probate court which revoked the probate of and invalidated the will of May 9.
The probate judge sat more than thirty days, taking evidence and hearing arguments, and made the following findings: (1) That Abram Barker was mentally weak and extremely dependent on others "at the time he made his will of May 9," (2) He was "probably possessed of sufficient mental capacity to make and execute a valid will, but that by reason of his weakened condition he was easily susceptible to undue influence," (3) That the beneficiary "occupied a confidential and fiduciary relationship toward him as bookkeeper, secretary, housekeeper, attendant and companion; that the said Wilma Hatch Lee and her husband James L. Lee, both of whom were strangers in blood to the testator and of not too long acquaintance with him, moved into the testator's house under unusual circumstances, about three and one half months before the drafting and within five months of the execution of the purported will of May 9," (4) That the drafting of said will was surrounded by unusual and suspicious circumstances and "completely abandoned former fixed testamentary plans of the testator to leave his estate to his only sister and three nieces, children of a deceased brother, for their respective lives with the remainder to Brown University," (5) There is ample evidence in the record, although contradicted by the Lees, that they were "active in procuring the drafting and execution of the will of May 9."
The Circuit Court, in a lengthy opinion devoted to a review of the evidence, unanimously reversed the judgment of the probate judge and held that, "from our review of the entire record we must conclude if there ever was a case wherein the lower court misconceived and misconstrued the legal effect of the evidence before him, this is the case. If there was ever a case where there was no substantial competent evidence to support the findings of the lower court, this is the case."
The only question with which we are concerned might be stated in half-dozen different aspects, but we state it as follows: Did the Circuit Court err in reversing the judgment of the probate court holding that the will of May 9 was induced by undue influence?
The answer to this question turns on that of whether or not the probate court applied the correct rule of law to the legal evidence adduced in support of the charge of undue influence. Legal evidence in support of such a charge is that which is admissible to prove the issues in the case. If it merely leaves a suspicion or raises a doubt or conjecture it does not rise to the dignity of legal evidence. It may be oral, circumstantial, or documentary, any tangible object that speaks the truth, and if in the light of all the facts adduced it may be reasonably said to warrant the verdict or judgment rendered it meets the test of legal evidence. The issue in this case was undue influence and to say that the probate judge misconstrued the legal effect of the evidence is tantamount to saying that there was no legal evidence to support his judgment.
Now let us examine the evidence and see what the probate judge grounded his judgment on; suffice it to say that it is sometimes as difficult to prove undue influence by direct oral evidence as it is to prove illicit sexual relations in that manner. Like a bird flying in the air it leaves no track or finger print by which it may be trailed. Hence we say it may be proven by indirect evidence of facts and circumstances from which it may be reasonably inferred. Newman v. Smith, 77 Fla. 633, 82 So. 236; Gardiner v. Goertner, 110 Fla. 377, 149 So. 186. It may leave a trail of facts and circumstances, however, which drives one to the conclusion that it must have been present.
It is not amiss to detail a few of the facts and circumstances that guided the probate judge to his conclusion. When the testator made the will of May 9, he was eighty years old. The hospital records and other evidence shows that on February 24, 1940, he suffered a cerebral accident or "cerebral hemorrhage" from which he spent two months in the hospital, during which he was at times irrational, confused, suffered from various hallucinations and talked incoherently much of the time. Other evidence shows that this condition continued throughout the year and into the following year. He was given a neurological and psychiatric test on May 31, 1941, which showed him to be normal at times, abnormal at other times, unstable under pressure, suffering from arteriosclerosis, easily suggestible, childlike, and that he suffered from brain spasms.
Such was, in brief, the showing as to his mental and physical condition leading up to the time the will of May 9 was executed. In three other wills he had given his only sister and three nieces a life estate in his estate, remainder to Brown University. The will of May 9 abruptly departs from this disposition and gives his entire estate to Wilma Hatch Lee, notwithstanding the fact that his sister and three nieces were still living. He was an honor student at Brown University, having an A.B. and A.M. degree from that institution; it had extended him material aid in completing his education, for which he had expressed gratitude. He set up the "Abram Barker Fund" in three other wills and after he executed the will of May 9, he repeatedly spoke to friends about his plans for scholarships for worthy young men at Brown University.
The Probate Court found that Mr. and Mrs. Lee were active in procuring the drafting and execution of the will of May 9. The evidence shows that the attorney who drew said will went to see the testator at Lee's request and after it was prepared he (attorney) delivered the draft to the testator in company with Mr. Lee. On December 16, 1940, the Lees moved in the home with the testator. April 2, the will of May 9 was presented to the testator by his attorney and on May 9, it was executed. All this time Mrs. Lee was the secretary, bookkeeper, practical nurse, housekeeper and confidant of the testator. She quit another job to move in the home with the testator without any understanding as to compensation, Mr. Lee had borrowed money from the testator that had not been returned, and there had been other "suspicious circumstances" in connection with the Lees' relations to the testator such as the discharge of his former attorney and other employees as soon as the Lees moved in the home.
The capstone in all this chain of circumstances is the fact that the will of May 9 suddenly departs from the long cherished and repeatedly expressed plan of the testator to provide for his only sister, three nieces and Brown University, and gives a large estate approximating a million dollars to a short time acquaintance that had no claim on his bounty; unless the fact of having been a faithful and trusted employee for three months gave her such a claim. This fact alone without supporting evidence is sufficient to arouse deep suspicion as to the circumstances producing the will of May 9. We think these and other circumstances were ample to support the finding of the probate judge that the will was induced by undue influence. Even if the evidence was skimpy, in view of the probate judge's finding as to the mental and physical condition of the testator when the will was executed, the sudden reversal in disposition of the estate, the burden was on the proponents to give a satisfactory explanation of why the change. No such explanation was attempted. Our decisions amply support this doctrine. In re Aldrich's Estate, 148 Fla. 121, 3 So.2d 856; In re Gottschalk's Estate, 143 Fla. 371, 196 So. 844; Watts v. Newport, 149 Fla. 181, 6 So.2d 829, 831.
In this holding we do not overlook the showing that that testator lived about four years after he executed the will of May 9, during which time he destroyed the will of August 29, and expressed no desire to change the will of May 9. It is true that his health improved for awhile and he purchased three small pieces of property and sold several pieces, but we find nothing in the record to show that he became keenly active in the real estate or any other business as counsel insist.
We do not overlook the fact that a great many witnesses testified that they met and talked with the testator during these four years. Some of them said he was as keen and alert as ever, and others pronounced him in normal or good condition. He no doubt appeared in good physical and mental condition at times, but at the same time ample evidence shows that he was in bad shape in 1940 and 1941 and that he returned to this condition months before his death in 1945. During all this period the beneficiary under the will of May 9 was living in the home with him, she was his confidential secretary, bookkeeper, housekeeper, and practical nurse. She was in position to influence and direct his activities and had ample opportunity to do so. The burden was on her to prove that the will was the voluntary act of the testator. The evidence referred to in the preceding paragraph and the fact that the testator lived four years after its execution and made no change in his will appears to have been one of the activating reasons of the Circuit Court for reversing the probate court. If the will was bad for undue influence when it was executed, nothing short of re-execution would make it a valid will. It is shown that the testator was under the same influence these four years that he was under when the will was executed. If the influence of the Lees produced the will in the first instance the influence directed his conduct to the day of his death and he had no chance whatever to change his will. A will induced by an influence that the testator could not resist is not his will. Haines v. Hayden, 95 Mich. 332, 54 N.W. 911; In re Busick's Will, 191 Iowa 524, 182 N.W. 815; In re Miller's Estate, 31 Utah 415, 88 P. 338.
The flood of evidence as to testator's condition during these four years has little relation to undue influence. The bulk of it does not relate to the testator's condition at the time the will was executed. It does show he was in apparent good health much of the time during these four years but the record as a whole shows that at the time the will was made he was "easily susceptible to undue influence" and that for months before he died he was mentally incompetent. The probate judge made his findings from the evidence as a whole and I think the qualitative effect of it amply supports his judgment. Undue influence is a strange derivative. It is sometimes produced by foxy or devious methods and can rarely be proven by direct evidence. It may be inferred from circumstances and many times it can be proven by no other means. It does not have to be proven by direct evidence. Much criticism is directed to appellant's testimony because it was adduced from witnesses who had been discharged as servants of the testator, or who expected to benefit from his will. The trouble with this criticism is that counsel who direct it are not the evaluators of the probative value of the evidence. The probate judge exercises that prerogative. Few judges in this country have had the experience evaluating evidence in probate cases that the judge who tried this case has had. The challenge that Mrs. Lee was kind to the testator and gave him the only comfortable home he ever had may be answered by the same argument.
A thesis as long as the Twelve Tables could be written about his case but after all is said one cannot escape the conclusion that it turns on the credibility of the evidence. There is nothing else to it. It grows out of one of those rare instances in which a comparative stranger suddenly becomes interested in the comfort and welfare of an old man with a sizable estate. The record as a whole shows that his condition was abnormal at the time he executed the will of May 9th, that it was unnatural in that it abruptly abandoned his sister, his nieces and his Alma Mater and gave all he had to one he had known but little more than three months but who was in a confidential and fiduciary relationship to him. The fact that such a transaction takes place naturally excites one's suspicion. It is contrary to all human experience for an eighty year old testator in command of his faculties and devoid of provocation to fire his trusted attorney, hire another attorney who was a stranger to him but was suggested and produced by the appellees, instruct him (the said attorney) to prepare a new will giving his entire estate to one of the appellees, a comparative stranger, and designate said attorney as administrator of his estate. This, notwithstanding the fact that the only sister and nieces were still living, yet that is what happened in this case. Such were some of the "suspicious and unusual circumstances" surrounding the drafting of the will. These and the supporting circumstances approach so near to evidence right out of the horse's mouth that it bears the tang of corn and fodder. It explains why the beneficiary is required to show that the will was a free and voluntary act and having failed to do so, I find myself driven to the conclusion reached by the probate judge. In fact when weighed in the qualitative balance I do not think the evidence permits any other conclusion.
If the testator was mentally weak and extremely dependent on others when he made the will there must be some showing of psychic rehabilitation to overcome such a finding. In other words, to resist undue influence the testator must be possessed of mental alertness sufficient to juggle in his mind the simple legal facts pertaining to the disposition of his estate and the natural objects of his bounty. The probate judge was in position to gather impressions about this that we do not have. We find ample legal evidence to support his finding and we find nothing that would authorize us to overthrow it. Certainly one in possession of his faculties may dispose of what he has to whom he pleases, so long as he observes legal requirements; but the very fact that one in the condition of the testator abandons a long cherished plan and gives his estate, approximating a million dollars, to a a new found friend, on the face of it raises a question as to whether or not all is well with him mentally. The burden is on the new found friend to remove the question.
The probate judge having spent thirty days taking the evidence, had a chance to winnow the wheat from the chaff that was not accorded the Circuit Court nor this Court. He had a chance to detect the "bugs" if there be such, and disregard the immaterial in such a large volume of testimony. The opinion of the Circuit Court is devoted primarily to an appraisal of the probative value of the evidence. It would be difficult to take as much evidence as was taken, with as much as there was involved, and not find some to prove any theory of the case.
I think the judgment of the Circuit Court should be reversed, with directions to affirm the judgment of the probate court. I am authorized to say that Mr. Justice CHAPMAN concurs in this conclusion.
CHAPMAN, J., concurs.