Barry v. Walker

• Decision Date: 13 November 1931
• Citation: 103 Fla. 533,137 So. 711
• Parties: BARRY v. WALKER et al.
• Court: Florida Supreme Court

137 So. 711

103 Fla. 533

BARRY v. WALKER et al.

Florida Supreme Court, Division B.

November 13, 1931

Petition by S. H. Barry, opposed by William J. Walker and others, for the revocation of the probate of the last will and testament of C. A. Meacham, deceased. From a decree of the circuit court affirming a judgment of the county court denying the petition, petitioner appeals.

Reversed and cause remanded, with directions.

Syllabus by the Court.

SYLLABUS

One of the essential requirements of law in trying any case is that the court shall weigh and try the facts of the case in the light of the correct rule as to who has the burden of proof with respect to the issues, and a judgment will be reversed for a retrial of the facts according to the proper principles of law governing the burden of proof where it appears that the ruling of the trial judge as to the burden of proof was erroneous.

Under section 5467, Comp. Gen. Laws 1927, section 3602, Rev. Gen St. 1920, if any person interested desires to contest any will offered for probate, and is apprehensive that the will may be admitted to probate without his knowledge, he may file in the office of the county judge a caveat which would have the effect of precluding the admission of the will to probate until the county judge has given at least ten days' official notice thereof to the caveator in order that he may have his contest tried before the probate is allowed.

The provisions of section 5476, Comp. Gen. Laws 1927, section 3611, Rev. Gen. St. 1920, to the effect that the proof adduced by a party seeking revocation of the probate of a will shall in all cases be taken as in contest before probate, refer only to the manner and means by which the testimony is to be taken and the hearing to be had, and not to the burden of proof nor the rule of weighing evidence which would apply in a case of contest before probate.

The admission or rejection of a right to probate is a judicial determination of the character and validity of the instrument presented as a will, and is in effect a judgment in rem, and proceedings to annul a will are likewise treated as proceedings in rem. The probate of a will establishes its status, and the status thus established adheres to the will as a fixture, and the judgment or decree in the premises unless avoided by some mode prescribed by law, binds and concludes the whole world.

The probate of a will by the probate court having jurisdiction thereof is usually considered as conclusive that the will is genuine and not a forgery so long as the probate stands unrevoked, if there is a res upon which the decree of probate can act; that is, a paper purporting to be a will presented in proper form and declared proven as such.

A will once admitted to probate, whether after a contest or not acquires a status as a will at least prima facie (unless the decree of probate be void on its face), and in a proceeding to revoke such probate the burden rests upon him who would have the probate set aside as a forgery or otherwise to both allege and prove sufficient facts to warrant such revocation.

After the testimony in a case has been closed, neither party has a right to re-examine a witness or to introduce any new evidence, but when, through the inadvertence of counsel or other cause, the rigid enforcement of the rule would tend to defeat the ends of justice, it is the duty of the judge to relax it whenever it can be done without injustice to the adverse party, and, while such relaxation rests on the sound discretion of the judge, if he errs in admitting or refusing to admit testimony proposed to be admitted after the case has been closed, this court has jurisdiction to review the judgment and correct the error, inasmuch as courts of justice exist for the administration and furtherance of justice, to afford which discretionary powers are vested in trial judges subject to appropriate review by a superior tribunal.

In the trial of a petition to revoke a will on the ground of forgery, where the evidence on the point of forgery of the will was in sharp conflict, it was the duty of the judge trying the contest to reopen the cause and hear further proffered testimony alleged to have been recently discovered and which tended to support the charge of forgery made, when it appeared that to do so could have been done without any particular inconvenience to the court and without injustice to the adverse party. Appeal from Circuit Court, Hillsborough County; L. L. Parks, judge.

COUNSEL

L. D. McGregor and Zewadski & Pierce, all of Tampa, for appellant.

Doyle Campbell and Dickenson & Lake, all of Tampa, for appellees.

OPINION

DAVIS J.

This is an appeal from a decree of the circuit court of Hillsborough county affirming an order of the county judge of that county refusing to revoke the probate of the will of C. A. Meacham, a colored woman. The procedure followed in the county judge's court was that provided by section 5476, Comp. Gen. Laws 1927, section 3611, Rev. Gen. St. 1920, and the appeal to this court from the judgment of the circuit court is under section 4642, Comp. Gen. Laws 1927, section 2923, Rev. Gen. St. 1920.

Upon November 16, 1927, Blanche Beatty filed a petition with the county judge to probate a document purporting to be the last will and testament of C. A. Meacham. The petition stated that the testatrix had executed the will upon the 7th day of October, 1927, and had died upon November 5, 1927. The probate was allowed upon the petition, supported by the oath of one Presley Pughsley one of the subscribing witnesses thereto, in accordance with section 5472, Comp. Gen. Laws 1927, section 3607, Rev. Gen. St. 1920. The order admitting the will to probate was entered on November 18, 1927.

The will admitted to probate with the attestation clause of the subscribing witnesses thereto was as follows:

'State of Florida, County of Hillsborough.

'I, C. A. Meachem, of Tampa, Hillsborough County, Florida, being of sound and disposing mind and memory, and realizing the uncertainty of life, to deem it best to make, publish and declare this to be my last will and testament.

'1. It is my will that all my just debts and funeral expenses be paid as soon after my death as practical by my executors hereinafter named.

'2. I give, devise and bequeath unto Breezy Porta Walker the daughter of my beloved foster daughter Lilla B. Walker and her husband William J. Walker, my house and lot located at number 1612 Lamar Avenue, City of Tampa, Hillsborough County, Florida.

'3. I give, devise and bequeath unto my beloved foster daughters, Arlean E. Laurie and Lilla B. Walker all of the rest, residue and remainder of my estate, both real and personal, in equal shares, to have and to hold unto them, their heirs and assigns in fee simple forever.

'4. I hereby nominate, constitute and appoint William J. Walker, the husband of my foster daughter Lilla B. Walker, and Blanch Armwood Beatty, and further direct that the probate Judge of Hillsborough County, Florida, appoint some other responsible person, and that the said William J. Walker, Blanch Armwood Beatty and the person appointed by the Probate Judge shall be the executors of this my last will and testament, and I direct that they serve as such executors without giving bond.

'5. In witness where, I the said C. A. Meacham, the testator have hereunto set my hand and seal, and do hereby publish and declare this to be my last will and testament, hereby revoking all other wills by me made, in the presence of Almighty God and the subscribing witnesses.

'This the 7th day of October, A. D. 1927.

'C. A. Meacham.

'We the undersigned hereby certify that the said C. A. Meacham signed, sealed, published and declared the foregoing as her last will and testament in our presence, and that she signed the same in our presence, and that we in the presence of each other and in the presence of the testator, and at the testator's request have hereunto set our names as subscribing witnesses, on this the 7th day of October, A. D. 1927.

'Stubb C. Pughsley 1510 Jefferson St.

'Preston M. Pughsley 1510 Jefferson St.'

Upon petition of the devisees, one Anthony J. Major was named coexecutor.

On November 13, 1928, S. H. Barry filed his petition for the revocation of the probate of said supposed will. This petition alleges that Barry was the first cousin of the decedent, and that decedent had no other kin of closer relationship; that at the time of her death she left neither husband nor children, nor father nor mother, nor sister nor brother, nor niece nor nephews, but left only petitioner and other first cousins and some second cousins.

This petition further averred that the paper which had been probated as the last will and testament of C. A. Meacham was not in truth nor in fact the genuine last will and testament of said C. A. Meacham, and that said C. A. Meacham did not sign the said alleged instrument, but that the same was signed by some other person and not by decedent, or at her instance or request. It was further alleged that the purported attestation and subscription of the witnesses whose names appear thereon were not done by them, or either of them, in the presence of the said decedent, and that said decedent did not publish or declare said instrument as and for her last will and testament in the presence of the persons whose names were signed to the purported will as witnesses thereto, nor did the decedent request the witnesses to sign the said paper as her will. Revocation of the probate was prayed upon the grounds asserted by the petition.

Blanche Beatty and the other executors by their answer denied that C A. Meacham died intestate, as asserted in the petition of Barry, and affirmed the truth to be that she...