First Atlantic Nat. Bank of Daytona Beach v. Cobbett
| Decision Date | 19 October 1955 |
| Parties | FIRST ATLANTIC NATIONAL BANK OF DAYTONA BEACH, a National Banking Corporation, as Executor of the Last Will and Testament of Wellington LaMonte, deceased, Appellant, v. Olive S. COBBETT, Appellee. |
| Court | Florida Supreme Court |
Alfred A. Green, Daytona Beach, for appellant.
John L. Graham of Hull, Landis, Graham & French, Daytona Beach, for appellee.
Appellant was defendant below in an action brought by the appellee as plaintiff to recover a judgment against the estate of Wellington LaMonte, deceased, for alleged breach of an oral contract by deceased to make provision for the appellee in his will.
The cause was tried by the Circuit Judge without a jury and resulted in a verdict and judgment for the appellee. From the judgment against it, the appellant-bank, as executor, perfected this appeal.
Complaint alleges that in May, 1945, the appellee and LaMonte entered into an oral contract. Under its terms plaintiff was to take general care of Mr. LaMonte, who was then approximately eighty years of age, for the rest of his life in consideration of which Mr. LaMonte agreed to pay her $100 per month and living expenses during his lifetime and in addition agreed 'to make such provision for plaintiff in his will as would be sufficient to provide for her financial needs for the rest of her life'. LaMonte died in 1952 leaving a will which contained no provision whatever for appellee.
Three witnesses were offered to support the allegations of the complaint. One testified that in conversation with the decedent she stated to him, 'You are very fortunate to have Mrs. Cobbett, Mr. LaMonte'. Whereupon the decedent stated, 'Yes I am, but I am going to take care of her in my lifetime and after I am gone'. Another witness testified that in a conversation he had with the decedent, the latter said 'he made arrangements with Mrs. Cobbett to take care of him the rest of his life' and The third witness testified as to a conversation with the decedent with reference to Mrs. Cobbett in which the decedent stated 'that she would be well provided for * * * would be well provided for by him in a will. * * *' To the same witness the decedent stated, 'I will provide, (sic) Mrs. Cobbett will be well provided for in my will because she has agreed to take care of me as long as I live'. No testimony was offered by appellant.
Relying on Exchange Nat. Bank of Tampa v. Bryan, 122 Fla. 479, 165 So. 685, appellant contends for the rule that contracts to make a provision in a will must be approached with great caution in the matter or proof and that such contracts must be established by clear and convincing testimony. Applying this broad rule, appellant seeks reversal on the ground that the testimony in ...
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