Dukes v. Dukes
| Decision Date | 07 September 1976 |
| Docket Number | No. Z-131,Z-131 |
| Citation | 346 So.2d 544 |
| Parties | Stephen L. DUKES, Sadie Dukes, and Barbara A. Albrittson, Appellants, v. Allie N. DUKES, Appellee. |
| Court | Florida District Court of Appeals |
Martin S. Page of Jopling, Darby, Peele & Page and Marlin M. Feagle, Lake City, for appellants.
Frank M. Gafford and Ronald H. Cole, Lake City, for appellee.
LEE, THOMAS E., Associate Judge.
This appeal is before us on the question of the validity of the execution of a change of beneficiary form had by the deceased with Prudential Insurance Company of America. In the Trial Court, in a non-jury trial, commenced by the appellee (Allie N. Dukes) against Prudential Insurance Company of America for the payment of the 1/4th interest in the policy on the life of Winton L. Dukes, deceased, which originally contained the names of appellee, his children who are the appellants herein (Stephen L. Dukes and Barbara A. Albritton), and his step-mother, Sadie Dukes, was changed to reflect only the appellants in equal shares. The lower court ordered that the change of beneficiary form was invalid as the deceased, Winton L. Dukes, was mentally incompetent at the time the form was executed (October 16, 1971). The sole question for our determination is whether or not the trial court erred in its finding that the insured was mentally incompetent at the time he executed the form.
FACTUALLY, In March, 1963 Prudential insured the life of Winton L. Dukes and named as beneficiaries therein in equal shares, appellee, Allie N. Dukes, wife, his children the appellants Stephen L. Dukes and Barbara A. Albritton, and his step-mother, Sadie N. Dukes. On October 16, 1971, Winton executed a change of beneficiary from and named appellants as beneficiaries in equal shares eliminating Allie N. Dukes, wife, therefrom. The insurance company, upon learning of the legal dispute paid 3/4ths of the insurance proceeds to appellants, Stephen L. Dukes, Barbara Albritton and Sadie L. Dukes, and withheld 1/4th under the notice of contest, insured having died on November 16, 1971. Prudential deposited the remainder of the insurance proceeds into the registry of the Court and was permitted to be dismissed from this cause.
The record reveals that on August 9, 1971 in Lake Shore Hospital, Lake City, Florida, Winton was found to have had a tumor on the lobe of his right lung and after discharge, without treatment, he was referred by his physician, Dr. B. E. McRae, Jr., to Shands Teaching Hospital, in Gainesville, and on August 23, 1971, a brain tumor was also discovered. The lung tumor having been removed Mr. Dukes was released from Shands on September 2, 1971. On September 6, 1971, he was re-admitted to Shands Hospital and on September 8, 1971, the brain tumor was removed. Both of the tumors were malignant. Mr. Dukes was discharged from Shands Hospital on September 15, 1971, leaving him without the ability to speak. On October 16, 1971, Mr. Dukes' attorney visited with him at the Dukes residence (at the request of Barbara Albritton and Stephen L. Dukes) for the purpose of having some documents executed including the disputed change of beneficiary form. The attorney had taken his secretary along, together with a long time friend of the deceased, a Mr. Harvey Dennis. Mr. Stephen Dukes also was in the home at the time. The record reflects that the attorney was assured of Mr. Winton L. Dukes' mental capability to know his attorney and that his faculties were such that he was oriented as to place and time. The disputed form was signed with an "x" and properly witnessed. On October 19, 1971, three days after the execution of the change of beneficiary form, the deceased saw Dr. Joseph C. Cauthen as an out patient at Shands Hospital. The record also reveals that at this time Winton had difficulty in speaking but Drs. Cauthen and McRae testified Winton was able to express his thoughts and needs by the use of hands or nodding of head gestures. Mr. Dukes died on November 16, 1971. Subsequently, the litigation commenced and the cause was tried without a jury.
The record reveals that the Court was able to observe the original beneficiaries' manner and demeanor at the non-jury trial and this constituted the only live testimony taken by the Court. The transcribed testimony of the attorney and two treating physicians was reviewed by the Court.
Generally speaking, a judgment of the Trial Court comes to the Appellate Court clothed with the presumption of correctness and the appellants have...
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