Deane's Estate, In re

• Decision Date: 07 May 1963
• Docket Number: No. 62-492,62-492
• Citation: 153 So.2d 26
• Parties: In re ESTATE of Douglas DEANE, Deceased. William M. HURTENBACH, individually, and as Executor of the Estate of Douglas Deane, Deceased, Appellant, v. Edward F. BUTLER, as Administrator Ad Litem of the Estate of Douglas Deane, Deceased, and Gerald MeKie, Appellees.
• Court: Florida District Court of Appeals

Page 26

153 So.2d 26

In re ESTATE of Douglas DEANE, Deceased.

William M. HURTENBACH, individually, and as Executor of the Estate of Douglas Deane, Deceased, Appellant, v. Edward F. BUTLER, as Administrator Ad Litem of the Estate of Douglas Deane, Deceased, and Gerald MeKie, Appellees.

No. 62-492.

District Court of Appeal of Florida, Third District.

May 7, 1963.

Rehearing Denied May 29, 1963.

L. L. Robinson and Ben S. Hancock, Jr., Miami, for appellant.

W. Barry Swope, Miami Shores, and Drummond Paul, Jr., Miami, for appellees.

Before CARROLL, HORTON and HENDRY, JJ.

HORTON, Judge.

Appellant seeks review of an adverse final order entitled 'Order Re-establishing Altered Will.'

The appellant, an attorney at law, first met Douglas Deane in 1958, while working on a case in which Deane testified as a witness. Deane operated a small nursery in Miami, Florida, in a building owned by Clara Wood. Both Deane and Miss Wood lived on the premises. In February, 1958, the appellee Gerald A. McKie and his wife became tenants of Clara Wood, occupying the upstairs portion of the building. Miss Wood died on May 25, 1959, and devised the property to Deane. McKie stayed on as Deane's tenant. On May 30, 1959, at Deane's request, the appellant called on him to discuss the legal aspects of the Wood estate. Subsequently, the appellant and Deane had similar discussions.

Deane became ill and asked the appellant to visit him at the hospital. On September 6, 1959, appellant went to the hospital where Deand occupied a room with one George E. Liebman. They discussed at some length the provisions of a will which Deane wished to have drawn. Appellant made notes of the conversation and returned to his home to prepare the will. On September 7, 1959, appellant returned to the hospital with a will. At this time, Liebman was being visited by his wife and son. Deane read and approved the will, neither suggesting nor making any changes. He then executed the will in the sight of Liebman and Liebman's wife and son who signed as witnesses. Appellant took the will to his home for safekeeping.

Douglas Deane died on the morning of September 9, 1959. That evening, McKie and his wife went to the appellant's home and were shown what the appellant asserted was Deane's last will and testament. On September 11, 1959, McKie filed a caveat in the county judges' court for the purpose of objecting to probate of this will. On October 23, 1959, the appellant, in an ex parte hearing before the county judge, offered and secured the admission to probate of a purported will of Douglas Deane. This will consisted of three typewritten pages. Pages one and two are reproduced below in pertinent part ¹.

Page three contained only formal parts including the signature of the testator, the attestation clause, and the signatures of the subscribing witnesses.

On March 10, 1960, McKie filed a petition for the appointment of an administrator ad litem, restoration and re-establishment of the testator's last will and testament and balance of all funds I have on deposit alia, that pages one and three of the will admitted to probate were original pages of the testator's will, but that page two was substituted for the original page tow by the appellant after the death of the testator. On April 6, 1960, an administrator ad litem was appointed by the court, without objection by appellant. After a thorough investigation, the administrator filed a voluminous report of his actions in the premises. Included in the report were written statements, conversations held by the administrator with various persons, and the appellant's original shorthand notes of the testator's instructions as well as his typewritten transcript of these notes. On January 25, 1961, the court entered an order which, inter alia, ordered that a hearing be held in the matter, authorized and directed the administrator to file such petition as he might deem advisable, and granted leave to counsel for both parties to file additional pleadings. Subsequently, the administrator filed his petition. On the same day McKie filed an amendment to petition in which he adopted the petition of the administrator, incorporated by reference the administrator's report, and alleged other facts purporting to show the spoliation of the testator's will by appellant.

Ultimately the cause was tried and the court entered the order appealed which found the appellant guilty of spoliation and 'restored and 're-established' the testator's will by reconstructing paragraphs second and third of page two of the will offered for probate as follows:

'SECOND: I give and bequeath to WILLIAM M. HURTENBACH the balance of allfunds I have on deposit at the North Shore Hospital.

'THIRD: I give, devise and bequeath to my friend, GERALD McKIE * * * all the residue and remainder of my property, real, mixed and personal.'

The balance of page two and all of pages one and three of the will as re-established remained essentially the same as in the will originally admitted to probate. The order also revoked probate of the spoliated will, admitted to probate the will as re-established, and removed the appellant as executor.

The appellant's principal contention is that the appellees failed to sustain their burden and prove by a preponderance of the evidence that the appellant was guilty of spoliation. We find this contention to be without merit.

Generally, in proceedings contesting the validity of a purported will, whether before or after such will is admitted to probate, the burden of proof, in the first instance, is upon the proponent to establish, prima facie, the formal execution and attestation thereof. The proponent having sustained this burden, the burden of proof shifts to the contestant to establish by a preponderance of the evidence the facts constituting the grounds upon which probate is opposed or revocation thereof is sought. Section 732.31, Fla.Stat., F.S.A.; Neal v. Harrington, 159 Fla. 381, 31 So.2d 391; Barry v. Walker, 103 Fla. 533, 137 So. 711. However, where it is shown that the provisions of a purported will run counter to the natural affection of the testator or to his long expressed purpose, the burden shifts to the proponent to dispel these inherent improbabilities and prove by a preponderance of the evidence that the purported will is in fact the will of the testator freely and voluntarily executed. Watts v. Newport, 149 Fla. 181, 6 So.2d 829.

In the instant case the appellees produced sufficient evidence, both documentary and by testification ², to demonstrate that the provisions of the purported will ran counter to the testator's long expressed purpose. At this time the burden shifted to the appellant to demonstrate that the will offered for probate was in fact the will of Douglas Deane freely and voluntarily executed. The probate judge concluded that the appellant had not sustained this burden and found that, as a matter of law, the appellant was guilty of spoliation. We will not disturb his findings and conclusions since they are supported by substantial, competent evidence. Neither do we find that the probate judge misinterpreted the legal effect of the evidence as a whole. In re Stewart's Estate, Fla.App.1962, 137 So.2d 614; Williams v. Kane, Fla.1956, 88 So.2d 599; In re Kiggins' Estate, Fla.1953, 67 So.2d 915.

The appellant also contends that the probate judge was without authority to restore and re-establish the will. We disagree.

In support of this contention, appellant cites us to cases which, he urges, hold that: judicial construction of a will is precluded where the portion sought to be construed is plain in its meaning, and a court will not...