Burton's Estate, In re

• Decision Date: 25 April 1950
• Citation: 45 So.2d 873
• Parties: In re BURTON'S ESTATE.
• Court: Florida Supreme Court

Page 873

45 So.2d 873

In re BURTON'S ESTATE.

Supreme Court of Florida, Special Division B.

April 25, 1950.

Hugh L. McArthur, Maynard Ramsey, Tampa, and Carl C. Durrance, for appellant.

W. N. Burnside, Tampa, for appellee.

HOBSON, Justice.

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 fes days after the...