Opinion
April 25, 1950.
Appeal from the Circuit Court, Hillsborough County, Harry N. Sandler, J.
Hugh L. McArthur, Maynard Ramsey, Tampa, and Carl C. Durrance, for appellant.
W.N. Burnside, Tampa, for appellee.
This is an appeal from the order of the Circuit Court of Hillsborough County affirming an order of the County Judge dismissing a petition to revoke the probate of the last will and testament of Frederick Burton, deceased. The will was offered for probate by Harold Percy Anderson, the decedent's son-in-law and executor under the terms of the will, who, together with his wife the decedent's daughter, was the principal beneficiary under the will. The petition to revoke probate now under review was filed by Edward Ordway Burton, the son of the testator and a legatee under the will. It charges the principal beneficiaries with using undue influence to secure the execution of the will.
Without expressing or indicating any opinion as to the merits of the controversy over the validity of the will we are constrained to disagree with the Circuit Judge's ruling which affirmed the order entered by the County Judge dismissing the petition. The order appealed from sets out very clearly and concisely the question now before us: "The sole question involved in this appeal is the sufficiency of the petition to set forth a set of facts, which, if proven, would justify the revocation of the said will. The amended petition consists mainly of the conclusions of the pleader and does not set forth a set of facts sufficient to justify revocation of the facts (sic), if true. The order of the County Judge is affirmed."
Although we recognize the many advantages of brevity, we deem it necessary to analyze the petition in detail because of the complexity and closeness of the question involved. The first paragraph sets out that the petitioner and his sister, Mrs. Anderson, are the only surviving heirs at law of said decedent. The next paragraph shows how the property was to be divided under the terms of the will; all the estate was devised and bequeathed to the daughter save 400 shares of stock of Poinsettia Dairy Products, Inc. These 400 shares were left in trust, upon certain conditions, for the use and benefit of the son (petitioner). First the decedent-settlor recognized that his son had an income of $30.00 a month from the government and that this income is subject to adjustment at any time; in view of this he directed that the income from the corpus of the trust be used to supplement the son's annual income so that at no time should it be less than $500.00, but under no conditions should the corpus of the trust be invaded in order to effectuate such augmentation of the son's annual income. (As we interpret the trust conditions, the annual income of the son from all sources, the government, his labors and any other source from which he might receive an income, would have to be less than $500.00 before he would receive any amount from the trust and then he would receive the amount necessary to raise his total annual income to $500.00 only in the event such amount should be available from the current or accumulated income of the trust estate. Parenthetically it might be said that although the brief of the appellant does, in alleging the unjust and unnatural disposition of the estate, place a monetary value upon the property of the decedent, the only estimate of the size of the estate that we can glean from the record is that the petitioner does in one instance characterize it as "decedent's vast estate". It places on this Court a much greater burden in its effort to decree right and justice when a petitioner classifies a legacy to himself as "a negligible amount of decedent's vast estate" and then fails to further evaluate this estate within the record. It is clear that the statements made in appellant's brief without any support in the record cannot be considered on appeal. Allen v. Town of Largo, Fla., 39 So.2d 549.
The third paragraph of the petition alleges that Harold Percy Anderson, the son-in-law, was named executor of the will and that he is now so acting. The pertinent parts of the next section are allegations that the Andersons were guilty of using undue influence upon the deceased in securing from him in 1934 ten shares of Poinsettia Dairy Products, Inc., stock in order that Mr. Anderson could be the business adviser of the decedent, who was of the "feeble age of 84 years." Then follows an allegation that Anderson did so handle the business affairs of the decedent that a confidential relationship was established and that by an improper use of this relationship he and his wife secured some 172 additional shares of stock and thereby gained greater control over the business affairs of the decedent and that this continued until 1943 when they were successful in completely overcoming the will and desires of the father and did from that date on substitute their will for that of the father. Then petitioner sets out in detail a transaction by which he transferred his share of his mother's estate to his father allegedly in return for his promise to devise all the property to his two children in equal parts. A breach of this agreement is alleged. The record shows a subsequent transfer of all of this property from the father to his daughter some few days after the consummation of the alleged agreement between the father and son. (Here we pause to recognize the appellee's objection that no testimony concerning these dealings with the decedent in relation to the alleged agreements could be introduced in evidence and that the petitioner could not testify concerning them because of Section 90.05, Florida Statutes 1941, F.S.A., the so-called Dead Man's Statute. Consequently, so it is contended, these are improper allegations. With this contention we cannot agree. Granted that these declarations of the decedent might not be introduced to establish the validity of, or to enforce, the agreements alleged to have been made, nevertheless the authorities seem to agree that these declarations are admissible to show the intent of the testator and to establish the fact that the will was in conflict with the fixed purposes and intentions of the testator as previously expressed by him. Needless to say the testimony would be subject to the discretion of the trial court in regard to relevancy as to point of time and also subject to his evaluation as to credibility and the weight to be given it. ["Declarations of the testator freely and voluntarily made prior to the execution of the will manifesting a long and continuing purpose to dispose of his property in a particular manner would be admissible on the issue as to whether undue influence had been exercised or not." Redfern, Wills and Administration of Estates in Florida, Section 50, page 73, n. 22. See also 57 Am.Jur. Wills, Section 415, p. 297; Annotation in 148 A.L.R. 1224.]) There is also an allegation concerning a contract to make a will and this too was made the subject of the same objection by the appellee. This alleged breach, if proven, would be a badge of fraud or undue influence to be weighed by the County judge in light of the authorities before cited.
With reference to the application of Section 90.05, Florida Statutes 1941, F.S.A., to the petitioner who might desire to give testimony personally concerning transactions had with the decedent, we feel it is only necessary to call attention to the fact that we are now faced with the sufficiency of a pleading — not admissibility of evidence. Moreover, the petitioner may be in a position at the time of the trial to offer testimony of disinterested third persons.
Next is an allegation that the execution of the will was kept secret from the son by the principal beneficiaries with whom the decedent lived. This, if proven, would likewise be a factor to be considered upon the issue of undue influence. See 57 Am. Jur. Section 440, page 312; 68 C.J. 794. Under the next general allegation of undue influence there is cited the unnatural disposition of the property, the extreme age of the decedent, and the opportunity that the proponents of the will had to exercise this influence because the testator resided in their home for a long period of time prior to, and until his death. Although no one of these allegations standing alone would sustain a charge of undue influence, when all of them are taken together and weighed collectively we feel that the petitioner should have an opportunity to present them for evaluation to the enlightened conscience of a probate judge.
The appellee bottoms his case principally upon the ruling of this Court in the case of In re Starr's Estate, 125 Fla. 536, 170 So. 620, but we must bear in mind the fact that the ruling therein was upon the sufficiency of the evidence to sustain a charge of undue influence and in the instant case we are reviewing an order granting the motion to dismiss the petition. The rules of pleading provide that all facts properly pleaded must be taken as true for the purpose of a ruling on a motion to dismiss. The petition in this case is as strong if not stronger than the petition upheld by this Court in the case of In re Estate of Mach, 118 Fla. 421, 159 So. 519. In the case of Gardiner v. Goertner, 110 Fla. 377, 149 So. 186, 190, we said: "Undue influence is not usually exercised openly in the presence of others, so that it may be directly proved, hence it may be proved by indirect evidence of facts and circumstances from which it may be inferred. 28 R.C.L. 142, 143; 1 Woerner Am.Law of Admin. (3d Ed.) 61; 40 Cyc. 1164; 29 Am. Eng. Enc. Law (2d Ed.) 111. No one of such facts or circumstances, when considered alone, may be of much weight, but, when combined with other facts, may be sufficient to establish the issue. 40 Cyc. 1166-1190." (Emphasis supplied.)
Again we set out seriatim the circumstances upon which the petitioner relies to support his charges of undue influence. Summarized they are:
a. The existence of a confidential relationship between the decedent and the principal beneficiaries, established through the family relationship, the household relationship, and relationship of business adviser, a position held by the husband of the present principal beneficiary.
b. The unnatural and allegedly unjust provisions of the will. The additional facts that the son was not informed of his father's last illness until immediately prior to the hour of his death and also that other illnesses of the father were kept secret from the son.
c. The fact that the execution of the will was kept secret from the son by the principal beneficiaries.
d. The great opportunity to exercise undue influence possessed by the same beneficiaries and the unjust provisions of the will showing that it was exercised.
e. The fact that the will was against the fixed purposes of the decedent as manifested by declarations prior to the execution of the will.
f. The extremely advanced age of the decedent.
After extensive research with these allegations in mind and being conscious at all times of the difficulty inevitably encountered in distinguishing between pleading "ultimate facts" and mere "conclusions of the pleader" in the case of undue influence, we have decided that the petitioner is entitled to have the County Judge weigh the facts and circumstances in their collective grouping and then to pass upon the charges of undue influence in order to assure a just and equitable determination of this controversy.
Reversed.
ADAMS, C.J., CHAPMAN, J., and TILLMAN, Associate Justice, concur.