Estate of Parson

• Decision Date: 07 July 1982
• Docket Number: No. 81-894,81-894
• Parties: In the ESTATE OF Arlethia PARSON, Deceased. Forrest PARSON, Appellant, v. Robert J. HENDLEY, Jr., Individually and as Personal Representative of the Estate of Arlethia Parson, deceased, Eddie Hendley Felder, Henry Hendley, Charlie Hendley, L. C. Hendley, Charlie Hendley, Rosa Mae Hendley, Elizabeth Hendley, Wallace Hendley, and James L. Hendley, Appellees.
• Court: Florida District Court of Appeals

Page 513

416 So.2d 513

In the ESTATE OF Arlethia PARSON, Deceased.

Forrest PARSON, Appellant, v. Robert J. HENDLEY, Jr., Individually and as Personal Representative of the Estate of Arlethia Parson, deceased, Eddie Hendley Felder, Henry Hendley, Charlie Hendley, L. C. Hendley, Charlie Hendley, Rosa Mae Hendley, Elizabeth Hendley, Wallace Hendley, and James L. Hendley, Appellees.

No. 81-894.

District Court of Appeal of Florida,

Fourth District.

July 7, 1982.

Louis L. Williams and Mikel D. Greene of Farish, Farish & Romani, West Palm Beach, for appellant.

Cunningham & Cunningham, and James E. Weber of Weber & Fulton, West Palm Beach, for appellees.

HERSEY, Judge.

Application of the so-called "Dead Man's Statute," Section 90.602, Florida Statutes (1979), precluded appellant from testifying in support of his position that a "lost" will had not been revoked. We are called upon by this appeal to decide, inter alia, whether exclusion of that testimony was error.

Arlethia Parson died on April 2, 1980. A petition seeking to have her estate administered in intestacy was filed by a nephew, Robert Hendly, Jr., who was appointed personal representative. Shortly thereafter, appellant, Forrest Parson, located a conformed copy of a will of the decedent which had been executed on December 2, 1965. He filed a petition for the establishment and probate of a lost or destroyed will. The matter then proceeded to final hearing.

There was some indication in the testimony that Arlethia Parson believed that the 1965 will had never been revoked. It was established, on the other hand, that Arlethia Parson initiated litigation against Forrest and Ruby Parson in 1980 to reform certain deeds alleged to have been executed by reason of their misrepresentations to her. This evidence was introduced to show that Forrest and Ruby had fallen out of favor with the decedent subsequent to execution of the 1965 will. The evidence further shows that one or more of the heirs-at-law had access to the home of Arlethia Parson both before and after her death. Presumably the original will was once located somewhere in that home.

At the close of appellant's presentation in the trial court, appellees' motion for an involuntary dismissal was denied. Final judgment was ultimately rendered adverse to appellant, based upon findings that while the conformed copy of the will had been established as a correct copy of the 1965 will, it had not been satisfactorily proved that the 1965 will was not subsequently revoked.

Decedent's heirs-at-law, destined to share in the estate in the absence of a will, are various members of the Hendly family: brothers, a sister, and nephews and nieces of the decedent. The Hendly's are the real parties in interest/appellees here.

The will, on the other hand, favors Forrest Parson, a stepson of decedent, (and his wife, Ruby Parson, not a party to this appeal) the actual appellant here.

The trial court began, as do we, with the presumption that a will which was in the possession of the testator prior to death and which cannot be located subsequent to death was destroyed by the testator with the intention of revoking it. Schaefer v. Voyle, 88 Fla. 170, 102 So. 7 (1924); Stewart v. Johnson, 142 Fla. 425, 194 So. 869 (1940); In re Evers' Estate, 160 Fla. 225, 34 So.2d 561 (1948); In re Washington's Estate, 56 So.2d 545 (Fla.1952); Upson v. Estate of Carville, 369 So.2d 113 (Fla. 1st DCA 1979). The presumption may only be overcome by competent and substantial evidence, the lack of which requires a finding of revocation. In re Estate of Baird, 343 So.2d 41 (Fla. 4th DCA 1977). (Proof of nonrevocation in a proceeding to establish a lost or destroyed will is the subject of an annotation in 3 A.L.R.2d beginning at page 949.)

Appellant argues that evidence of the fact that "persons with adverse interest in destroying a will have had an opportunity to do so may serve to rebut the presumption [of revocation] ...." In re Estate of Baird, supra. The fact that one or more of the appellees had access to the house where the will was presumably located is only one factor to be considered by the trial court in the process of determining whether the presumption of revocation has been overcome. See, e.g., In re Washington's Estate, supra. Evidence of access by no means automatically overcomes the presumption of revocation. In Upson v. Estate of Carville, supra, the circumstances surrounding the will's disappearance plus evidence of access was sufficient to overcome the presumption of revocation. However, in In re Estate of Baird, supra, the evidence of access was insufficient to overcome the presumption. We have no reason to assume that the trial court failed to consider access as a relevant factor, assigning it appropriate weight among the findings of fact upon which the final judgment was ultimately based.

Appellant takes the position that denial of appellees' motion for involuntary dismissal constituted a ruling that a prima facie case of non-revocation had been established requiring appellees to go forward with evidence of revocation. We do not seriously fault that contention. However, the facts which gave rise in the first instance to the presumption of revocation continue to play a part in the case and may be considered, along with the testimony and other evidence subsequently adduced, in making a final determination on the issue of revocation. See, e.g., In re Estate of Carpenter, 253 So.2d 697 (Fla.1971), involving the presumption of undue influence.

We have consistently held that findings of fact by the trial judge will be presumed to be correct and are to be given the same weight as a jury verdict. Gaisford v. Frostman, 202 So.2d 790 (Fla. 4th DCA 1967). This proposition is based upon the logical premise that it is the function of the trial court to judge the weight of the evidence and the credibility of the witnesses based upon his direct observation, and this court will not substitute its judgment for that of the trial court unless there is a lack of competent and substantial evidence to support the findings upon which a final judgment is based. Hernandez v. Leiva, 391 So.2d 292 (Fla. 3d DCA 1980).

We need not tediously dissect the testimony and other evidence which the trial court properly considered. We conclude that the final judgment is supported by competent and substantial evidence.

The result might have been quite different, however, had appellant and his wife been permitted to testify. Evidence that Arlethia Parson at all times had the intention of leaving most of her worldly goods to appellant and that she believed that her will accomplished that result could not fail to have had a substantial impact on the deliberations of the trier of fact. It is therefore necessary to address the issue of the Dead Man's Statute which excluded such testimony.

Section 90.602, Florida Statutes (1979), provides:

90.602 Testimony of interested persons.--

(1) No person interested in an action or proceeding against the personal representative, heir-at-law, assignee, legatee, devisee, or survivor of a deceased person, or against the assignee, committee, or guardian of an insane person, shall be examined as a witness regarding any oral communication between the interested person and the person who is deceased or insane at the time of the examination.

(2) This section does not apply when:

(a) A personal representative, heir-at-law, assignee, legatee, devisee, or survivor of a deceased person, or the assignee, committee, or guardian of an insane person, is examined on his own behalf regarding the oral communication.

(b) Evidence of the subject matter of the oral communication is offered by the personal representative, heir-at-law, assignee, legatee, devisee, or survivor of a deceased person, or the assignee, committee, or guardian of an insane person.

(The Dead Man's Statute has been amended and renumbered from time to time but its language and effect as applied to the facts of this case and the rules of law to which we will refer have not changed in any material respect with one possible exception that will be discussed later in this opinion.) Appellant, as he must, takes the position that the statute is not applicable or has been improperly applied on the facts of this case. Because we think the issues raised are of some importance, we consider each of appellant's arguments concerning the statute.

In the ordinary situation where a creditor files a claim against an estate based upon an oral contract, application of the statute and its waiver provision (which we will subsequently consider at length) do not present undue difficulty. The creditor may not initially testify as to the content of that oral communication. He may, however, require the personal representative or a devisee having specific knowledge of the oral communication to give testimony in an attempt to establish the oral contract. That is, such an adverse witness may not refuse to testify; the statute does not create immunity from testifying. In re Estate of McClintock, 374 So.2d 93 (Fla. 2d DCA 1979). As we said, in Heebner v. Summerlin, 372 So.2d 518, 519 (Fla. 4th DCA 1979):

The legislative intent in passing the Dead Man's Statute was to provide a shield when, by reason of death, a party to a transaction is prevented from testifying. It is not to provide a privilege akin to the privilege against self incrimination.

In that case we ultimately held that the Dead Man's Statute would not be applied to prohibit a witness from giving testimony adverse to his own interests. It is also well established that when, for example, the personal representative is subpoened and thus required by the interested person to testify, the Dead Man's Statute has not been waived because he is not testifying "on his own behalf." In re Estate of Grant, 123 So.2d 560 (Fla. 2d DCA 1960). Application of these elementary principles to the case at bar, however, presents some unusual problems.

A...