Reid's Estate, In re, 61-441

Citation138 So.2d 342
Decision Date08 March 1962
Docket NumberNo. 61-441,61-441
PartiesIn re ESTATE of Madelon C. REID, Deceased.
CourtCourt of Appeal of Florida (US)

Redfearn, Ferrell & Simon, Miami, for appellant.

Creel & Glasgow and Stafford & Carter, Miami, for appellee.

Before HORTON, CARROLL and HENDRY, JJ.

HENDRY, Judge.

Madelon C. Reid, a resident of Dade County, Florida, died on March 21, 1961. A petition for probate of her will was filed in the County Judge's Court of Dade County by Richard C. Carter, Jr., as executor. The estimated value of the estate was $90,000. The appellant, John B. Reid, husband of the testatrisx, filed an answer to the petition for probate in which he alleged that the purported will of his wife was invalid because she did not possess testamentary capacity at the time of the execution of the purported will on January 31, 1961. The answer further alleged that if she did have testamentary capacity when she signed the will her signing was the result of undue influence practiced on her by her attorney, Forney B. Stafford, while occupying a confidential relationship with her.

After hearing the testimony adduced by the parties on these issues the county judge entered his order which reads as follows:

'This matter came on to be heard upon the petition of Richard C. Carter, Jr. for the probate of the will of Madelon C. Reid, the answer of John B. Reid to said petition, and the evidence submitted by the parties. This will is dated January 31, 1961. The petitioner is the executor named in the will. The sole beneficiary under the will is Forney B. Stafford, the partner of the executor in the practice of law. John B. Reid is the surviving husband of the testatrix, but these parties had not lived together for several years prior to the execution of the will * * * John B. Reid contests the validity of the will upon the following grounds:

'(1) Lack of testamentary capacity of the testatrix.

'(2) Undue influence of the sole beneficiary in connection with the making of said will.

'After careful consideration of all of the evidence, the Court finds that the preponderance of the evidence shows:

'1. That at the time of the giving of the instructions for the preparation of the will and at the time of the execution of the will Madelon C. Reid possessed testamentary capacity.

'2. That the beneficiary, Forney B. Stafford, did not exercise undue influence upon Madelon C. Reid in connection with the making of said will.

'The Court further finds that the relation of attorney and client existed between the beneficiary and the testatrix in the preparation and execution of the will, since the will was prepared by the partner of the beneficiary and the execution of the will was supervised by an agent secured by said partner. This Court does not approve such conduct on the part of an attorney. However, the presumption of undue influence on the part of the attorney-beneficiary in this case is clearly rebutted by the evidence submitted.

'A denial of the probate of this will upon the evidence in this case would amount to a rewriting of Madelon C. Reid's will by the Court. Such a rewriting of a will is not a proper function of a probate court.

'It is, therefore, ORDERED AND ADJUDGED that the Last Will and Testament dated January 31, 1961, * * * attested by Mary Cooper, William Cooper and Mitchell J. Miodus as subscribing and attesting witnesses thereto, be and the same is hereby admitted to probate according to law as and for the true Last Will and Testament of said Madelon C. Reid * * * and that said will shall be duly recorded in the Book of Wills, and that the cost of recording the same be taxed as costs against this estate.

'Let Letters Testamentary issue to Richard C. Carter, Jr., the executor named in said will, upon his taking and subscribing the prescribed oath * * *'.

The appellant has appealed from this order admitting the will to probate.

There are two questions raised by the appellant. The first one with which we shall deal arises from the adjudication by the county judge that the preponderance of the evidence showed that at the time of the execution of the will, Madelon C. Reid possessed testamentary capacity. The second question raised by the appellant is as to the finding of the county judge that the evidence showed that the sole beneficiary, Forney B. Stafford, did not exercise undue influence upon the testatrix in connection with the making of the will because the presumption of undue influence on the part of the attorney-beneficiary in this case was clearly rebutted by the evidence.

Our review of the record shows some conflicts in the evidence coming from the witnesses who testified before the trial judge as to whether Mrs. Reid had testamentary capacity to make a will at the time it was executed.

There were a number of witnesses who testified, some on behalf of appellant and some on behalf of the appellee.

Dr. Edward Roth, a witness called on behalf of the appellant was a practicing physician in the field of internal medicine who had known the testatrix for many years and who had treated her on occasions up until January 10, 1961. He testified that he believed she was insane and that he believed beyond a shadow of a doubt that she committed suicide which is the act of an insane person. He further testified that he knew she was insane before her death and almost anticipated the occurrence; that she was addicted to drugs, which beclouds the mind and makes one further incompetent, so that she was incompetent to make a will. Dr. Roth further testified that when she came to his office and was under his observation she would look and stare in a most peculiar manner; that she would answer questions indirectly and acted furtively and peculiarly; that when he asked her a question, she would look at him with deep, piercing and frightened eyes, and be quiet for a while and then answer in some irrelevant manner; that he believed she had paranoid ideas, too; that she made terrible remarks about things that are going to happen; that it was his opinion that she was mildly insane and incompetent to make a will.

Mrs. Dorothy White, a witness called on behalf of the appellant, testified that she had known Mrs. Reid very well for more than six years and had associated with her quite often during the last few months of her life; that from her association with her and knowledge of her condition she was of the opinion that Mrs. Reid was not at any time during the last three months of her life capable of making an understanding distribution of her property by will.

Mrs. Jane Fisher, a witness called on behalf of the appellant, testified that she had known Mr. Reid for perhaps thirty years; that she had visited in her home socially and that they were friends; that they were generally in the same crowd socially and that she saw Mrs. Reid at different parties and always talked to her; that the last few times she saw her she notice a great change in her mentally and she found her incoherent; that the last six or seven times she saw Mrs. Reid there was something wrong with her since she did not talk intelligently; that she saw her on the evening of January 30, 1961, at a party at the Surf Club and that she was incoherent and acting as if she were intoxicated because she weaved around and held on to things; that she got up close to her and while talking, she unintentionally expectorated in her face; that from Mrs. Reid's mental and physical condition she would say that on January 31, 1961, the date of the signing of the will, she was not capable of making an understanding distribution of her property.

Mrs. Laverne Mathey, a witness called on behalf of the appellant, was a beautician who had attended Mrs. Reid for more than ten years. She testified that Mrs. Reid was showing a health problem; that she had grown quite thin and had become mixed up in her mind; that she would come in on Wednesday, Thursday or Saturday, thinking it was Friday; that Mrs. Reid was not mentally capable of making an understanding distribution of her property by will in January, 1961, as she was very ill and could not remember what she was saying.

Mrs. Bess Cavanan, who was called as a witness for the appellant, testified that she had known Mrs. Reid for about thirty years; that she was intimately friendly with Mrs. Reid and that they visited in each other's home and became very well acquainted and that such friendly acquaintance continued until her death; that she saw Mrs. Reid at the Surf Club on the evening of January 30, 1961; that Mrs. Reid was 'high'; that she did not drink but 'she was stepping high'; that she was not a stable person on that occasion and had not been for at least six months and that she was getting worse and worse during the last three of four months; that she was unstable both mentally and physically; that from her close association with Mrs. Reid and her observation of her during the month of January, 1961, and prior and subsequent thereto, it was her opinion that Mrs. Reid was not mentally capable of making a will during that time.

John B. Reid, the appellant, testified he was married to Madelon C. Reid in 1941, but at the time she died he had not lived with her for the past several years prior to her death; that Mrs. Reid talked to him over the telephone almost daily until her death; that they discussed her wanting money for the beauty parlor and that he met her and frequently gave her money; that he and Mrs. Reid discussed the sale of her La Gorce membership and all the matters of business with her, including her income tax problem for 1960; that he and Mrs. Reid had an appointment with the accountant the day before she died, which he told Mrs. Reid he would change when he found her in no condition to go to the accountant's office; that he got Mrs. Reid to sign the Israel Bond Certificate so he could sell it for her; that Mrs. Reid had always taken a sedative at night since...

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