253 So.2d 697 (Fla. 1971), 40359, In re Carpenter's Estate

Docket Nº:40359.
Citation:253 So.2d 697
Opinion Judge:Author: Mccain
Party Name:In re ESTATE of Coketine Bray CARPENTER, Deceased. Ben CARPENTER, II, and William Bary Carpenter, Petitioners, v. Mary Redman CARPENTER, Respondent.
Attorney:F. Perry Odom, LeRoy Collins and N. Sanders Sauls, of Ervin, Pennington, Varn & Jacobs, Tallahassee, and George E. Hovis, Leesburg, for petitioners.
Case Date:June 09, 1971
Court:Supreme Court of Florida
 
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Page 697

253 So.2d 697 (Fla. 1971)

In re ESTATE of Coketine Bray CARPENTER, Deceased.

Ben CARPENTER, II, and William Bary Carpenter, Petitioners,

v.

Mary Redman CARPENTER, Respondent.

No. 40359.

Supreme Court of Florida.

June 9, 1971

Rehearing Denied Nov. 4, 1971.

Page 698

F. Perry Odom, LeRoy Collins and N. Sanders Sauls, of Ervin, Pennington, Varn & Jacobs, Tallahassee, and George E. Hovis, Leesburg, for petitioners.

Robert M. Sturrup and Thomas A. Thomas, of sturrup & Della-Donna, Fort Lauderdale, for respondent.

Harlan Tuck, of Giles, Hedrick & Robinson, Orlando, for amicus curiae.

McCAIN, Justice.

By petition for writ of certiorari, we are asked to review the decision of the District Court of Appeal, Fourth District, 239 So.2d 506 (Fla.App.4th, 1970), which reversed the order of the County Judge's Court of Orange County adjudicating that the will of Coketine Bray Carpenter, deceased, was procured by under influence and was therefore void and not entitled to probate.

Conflict is asserted with In Re Estate of MacPhee, 187 So.2d 679 (Fla.App.2d, 1966), and In Re Estate of Reid, 138 So.2d 342 (Fla.App.3rd, 1962), pursuant to Fla.Const. Art. V, Sec. 4(2), F.S.A., and F.A.R. 4.5, subd. c(6), 32 F.S.A. We have jurisdiction.

By her last will and testament, prepared and executed four days fefore her death, Mrs. Coketine Bray Carpenter left her entire estate outright to her daughter, Mary Redman Carpenter. She left nothing to her three surviving sons, Ben, Sam and Bill. Ben and Bill contested probate of the will on the ground that it was procured by undue influence.

In his order adjudicating the will in question to have been procured by undue influence, the County Judge made the following findings of fact and conclusions of law:

'1. That that certain purported will of Coketine Bray Carpenter, the above decedent * * * was signed by the said decedent at the end thereof in the presence of two attesting witness who were present at the same time the testatrix signed the said will; * * *

'3. That the decedent was a widow and the mother of a grown daughter, Mary, and three grown sons, Ben, Sam, and Bill; that of all her said children the decedent was most fond of Ben; that Ben substantially assisted the decedent, both financially and otherwise, more than her other children; that on many occasions the decedent expressed a considered intention to leave her estate equally to her four children; that there was no evidence that subsequent to such expressions of intent any event transpired which under normal circumstances would have influenced the decedent to depart from her said intention; that there was no evidence that the decedent had ever had a will other than the said purported will; that in the absence of a will the decedent's estate would, by the law of intestacy, have been divided equally among her four children, which fact the decedent is presument to have known;

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'4. That a confidential relationship existed between Mary and the decedent;

'5. That Mary was active in procuring the execution of the said purported will; that Mary made all the arrangements for the preparation and execution of the said purported will; that Mary kept the execution of the said purported will by the decedent secret from the sons of the decedent, Ben and Bill; * * * that the decedent's doctor was not consulted regarding the decedents ability to execute a will and was not informed of the said purported will until after the death of the decedent;

'7. That at the time the said purported will was executed on September 1, 1966, for quite some time prior thereto and until her death thereafter, the decedent was very sick physically, depressed, and mentally impaired; that for quite some time prior to the execution of the said purported will the decedent drank alcohol daily, frequently to excess, and often as much as one-fifth gallon of whiskey per day; that the ultimate cause of the decedent's death was the breakdown of her body due to excessive consuption of alcohol; that the decedent's condition was so poor at the time the said purported will was executed that three days prior thereto her physician had concluded she was a terminal case and that four days after the said execution she expired; that the day before the execution of the said purported will the decedent informed an examining physician that she had been depressed for a longs period of time; that from prior to the time Mary testified the decedent instructed her to have the said purported will prepared, to-wit: on August 29, 1966, through her death, the decedent was from time to time being given barbiturates, which drugs impair the mind of a normal person and impair the mind of a sick person even more; that at the time the said purported will was executed, the decedent stated that she was leaving her sons out of her estate because they did not love her; that there was no evidence that the decedent's sons did not love her nor was there any evidence which would lead an unimpaired mind to believe that they did not love her;

'8. That a presumption has been raised that the said execution of the purported will was procured through undue influence;

'9. That the proponent of the said purported will, Mary Carpenter, has not overcome the presumption nor disproved the existence of undue influence in the execution of the said purported will;

'10. That the execution of the said purported will was procured by Mary Carpenter, the proponent thereof, by undue incluence; * * *.'

Mary, the proponent, appealed. The District Court of Appeal restated the facts in its opinion, emphasizing certain testimony not included in the findings of the trial judge, as follows:

'At the time of her death in 1966, Mrs. Carpenter was 52 years of age. Her husband had died in 1953 so that when her four children thereafter became grown and moved away, the decedent was left to live alone in the family home in Winter Garden, Florida. During the several years that she did live alone she handled all of her own business and household affairs. In the summer of 1966, Mrs. Carpenter developed cirrhosis of the liver to such an extent that she became quite ill and required hospitalization by her physician on August 28.

Page 700

'Mary, oldest of the four children, was employed as a school teacher in Daytona Beach. In the summer of 1966 she attended a ten-week school session at the University of Georgia, at the completion of which she visited her mother on August 20, 1966. Mary immediately recognized that her mother was quite ill, and when she again visited her mother one week later and saw that there was no improvement, Mary arranged for her mother to be admitted to a hospital in Daytona Beach on August 28. Mrs. Carpenter had no telephone in her room, nor was one readily accessible to her. On August 30, Mary telephoned her own attorney in Orlando, Russell Troutman, Esquire, advising him that her mother wished to have a will prepared in which Mary was to be named as sole beneficiary and executrix. The following day Mary again telephoned the attorney to impress upon him the urgency of the matter.

'Following the second telephone call Mr. Troutman promptly prepared a will in accordance with these instructions and drove from Orlando to Daytona Beach with the document. When he arrived at the hospital, the testatrix recognized him and out of the presence of Mary, Mr. Troutman questioned the testatrix in detail concerning her wishes for disposition of her property, particularly to satisfy himself that she was aware that under the testamentary scheme as relayed to him, Mrs. Carpenter's three sons were being excluded from her will. After this preliminary questioning of the testatrix Mr. Troutman then arranged for two other persons to be present (one of whom was a medical doctor) during the time that Mr. Troutman read the will to the testatrix and again questioned her to satisfy himself and the witnesses that Mrs. Carpenter was aware of the contents of the document and that it was in accord with her desires. The will was then properly executed and retained by Mr. Troutman, none of the children other than Mary being aware of the will's existence until at or just shortly prior to Mrs. Carpenter's death four days later.'

The conclusions of the District Court were: (1) that there was sufficient credible evidence to rebut the presumption of undue influence raised by the county judge's finding that Mary had a confidential relationship with her mother and that she actively procured the will; and (2) that without the presumption, the evidence before the county judge was insufficient as a matter of law to support a finding of undue influence. The order of the county judge was therefore reversed, and the will reinstated.

We are concerned with four interrelated issues in this case: (1) whether there was sufficient evidence before the county judge to raise a presumption of undue influence; (2) if so, whether the burden of proof, or merely the burden of going forward with the evidence, then shifted to the proponent to prove her case; (3) whether the presumption was rebutted (this issue also involves a consideration of the strength of the showing which must be made to rebut the presumption and whether the county judge or the District Court is empowered to decide this); and finally, (4) whether the evidence before the county...

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