Gardiner v. Goertner

• Decision Date: 18 July 1932
• Citation: 110 Fla. 377,149 So. 186
• Parties: GARDINER v. GOERTNER.
• Court: Florida Supreme Court

149 So. 186

110 Fla. 377

GARDINER v. GOERTNER.

Florida Supreme Court

July 18, 1932

On Rehearing June 5, 1933.

On Appellant's Rehearing June 27, 1933.

Commissioners' Decision.

Proceeding by Francis Goertner, opposed by Elizabeth W. Gardiner, for the revocation of the probate of the last will and testament of Francis Gardiner, deceased. An order of the county judge's court revoking the probate of the will was affirmed by the circuit court, and proponent appeals.

Reversed and remanded, with directions.

TERRELL J., dissenting in part.

On Rehearing. Appeal from Circuit Court, Dade County; H. F. Atkinson. Judge.

COUNSEL

Mitchell D. Price, Zaring, Youmans & Florence and E. F. P. Brigham all of Miami, for appellant.

McElya & Robinson, of Miami, for appellee.

DAVIS C.

This case is here upon appeal from a decree of the circuit court of Dade county affirming an order and judgment of the county judge's court of said county, fiding and adjudging that an instrument theretofore admitted to probate as the last will and testament of Francis Gardiner, deceased, was not in fact the last will and testament of the said Francis Gardiner, and revoking the probate thereof.

The proceeding was instituted under and by virtue of section 5476(3611), Compiled General Laws of Florida, 1927. Though not admitting that the contested instrument was signed by Francis Gardiner, the petitioner, who represents himself to be the son of the deceased, in seeking the relief prayed for, relies chiefly upon allegations showing testamentary incapacity and undue influence brought to bear upon testator to induce him to execute the instrument.

In the order of the county judge revoking the probate of the will, it does not appear upon what ground or grounds he based his conclusion that the instrument in question was not the last will and testament of the said Francis Gardiner. A statement of the evidence in the case would consume much space, and no great benefit would be derived therefrom. Suffice it to say that it was shown that testator's name was Goertner and that he had it changed during the war to Gardiner; that in early life he entered into relations with the mother of appellee that would probably constitute a common-law marriage, and that such relations continued until about six months before the birth of appellee, when a ceremonial marriage was performed; that they then lived together the greater part of the time until 1901; that thereafter Gardiner did not see his wife or son, but kept in touch with the wife, who was a public school teacher in the city of New York, until about the time of his death, but for some time he contributed small sums to her at various times during the minority of his son. During the years after the separation, the appellee believed his father was dead. Prior to Gardiner's separation from the mother of the appellee, Gardiner became intimate with other women, and from that time until his death he lived openly, from time to time, with different ones. Some of them while living with him were known to his friends and acquaintances as his wife. In 1901 he went through the usual ceremony for a legal marriage with one of them, and with this woman he lived until 1919, and thereafter he communicated with her until a short time prior to his death. In 1928, as a result of proceedings instituted in Dade county, a decree was rendered dissolving this alleged marriage. This divorce proceeding has been criticized here, and the court cannot say that it is free from the suspicion that a fraud was perpetrated upon the court. The next day after the granting of the said decree, November 28, 1928, Gardiner and the appellant, in pursuance of an agreement previously entered into between them, were the principal figures in a marriage ceremony which was performed in Dade county and thereafter they lived together as husband and wife until Gardiner's death in November, 1929. There is no evidence before the court to show that Gardiner had ever been divorced from his first wife, the mother of the appellee. It was stated by her (the first wife) upon the witness stand, that no divorce had ever been obtained so far as she knew. On and after November 24, 1922, Gardiner executed as many as five wills and as many codicils to his wills. To a will executed on November 24, 1922, was attached five codicils bearing different dates. Four of the wills were executed from September 23, 1927, to November 1, 1929, both inclusive.

Testimony was adduced to show the physical condition of the testator, and that for a number of years he had been treated for Bright's disease, diabetes, arteriosclerosis, and that in early manhood he had contracted syphilis, which possibly was never cured; that from time to time during his last years he was hospitals for treatment, and medical testimony was produced to show what effect, if any, these diseases would have upon the mind. A number of friends and persons with whom Gardiner had business dealings, and medical men, all of whom had more or less opportunity to observe his demeanor for some time before his death, were produced for the purpose of showing his mental condition before, about the time of, and subsequent to, the execution of the will in question. A number of checks signed by the testator about the time of the execution of the will, other instruments that were shown to have been executed, as well as an array of his written criticisms of books recently read by him, were received in evidence. The witnesses who had seen him and testified as to his mental condition--laymen, doctors, nurse, and witnesses to the will--were of the opinion that testator was mentally capable of making a will, or that he had appeared to be the same as he had always been, so far as his mentality was concerned, and the unrefuted testimony discloses that he had an extraordinary if not a brilliant mind. One specialist in mental diseases, who had not seen Gardiner, basing his opinion on the history of testator's paysical ailments, as shown in evidence, his business with a dementia, accompanying an organic as shown in evidence, together with the specimens of his signature, which indicated what was termed evidence of a dilapidated personality, which accompanies dementia, stated without qualification that testator was suffering whith a dementia, accompanying an organic state of the brain, and was mentally incapacitated to make a rational disposition of his property at the time the instrument was signed by him. Another specialist in mental troubles, just as credible as the one just referred to, in response to a hypothetical question, stated that he could 'see no sign of mental derangement from the description you have just given of the man's activities.'

A question of practice has been raised by appellant over the admission of certain testimony offered by appellee, but, entertaining the views that we do, as to the mental competency of testator at the time of execution of the will of November 1, 1929, this question becomes of no importance in this case.

The probate of wills so far as concerns any personal estate shall be conclusive as to the validity of the will of which it is the probate, and the probate of wills so far as it concerns real property shall be prima facie evidence of the validity of wills of which it is the probate, in any suit or controversy in relation to or concerning the property thereby devised or bequeathed. Section 5474, Compiled General Laws 1927.

Any person interested may make application to the court for a revocation of such probate, and the said court shall, upon the petition and answer of the parties, and the proof adduced by them, confirm or revoke the said probate according to the law and justice of the case. Section 5476, Compiled General Laws 1927.

It is settled here that in a proceeding of this character a testator at the time of making a will is presumed to be sane, and that 'the burden of rebutting this presumption and establishing incompetency to make a will or proving undue influence so operating upon' him as to destroy the free agency of testator rested upon petitioner. Schaefer v. Voyle, 88 Fla. 170, 102 So. 7. See, also, Barry v. Walker (Fla.) 137 So. 711.

The same principle is stated in Travis v. Travis, 81 Fla. 309, 87 So. 762, and in 28 R. C. L. 398, 399, we find it stated that the weight of authority 'is to the effect that in a contest of a will which has heretofore been duly admitted to probate the burden of proof is on the contestant to establish his grounds of contest. The probate is held to be prima facie evidence of the due attestation, execution and validity of the will and the burden is upon the contestants to overthrow the will.' See, also, In re Estate of Hayes, 55 Colo. 340, 135 P. 449, Ann. Cas. 1914C, 531, and note; Scott v. Thrall, 77 Kan. 688, 95 P. 563, 17 L. R. A. (N. S.) 184, 127 Am. St. Rep. 449; In re Murphy's Estate, 43 Mont. 353, 116 P. 1004, Ann. Cas. 1912C, 380; Steinkuehler v. Wempner, 169 Ind. 154, 81 N.E. 482, 15 L. R. A. (N. S.) 673; note, 76 A. L. R. 383.

We are mindful of the rule that, if there is evidence to support the court's finding, and it does not clearly appear to be erroneous, it will not be disturbed. Schaefer-Voyle Case, supra, and other cases therein cited. In the Schaefer-Voyle Case this principle was applied in a proceeding like the one at bar. Where, however, the probate judge misapprehends the legal effect of the evidence as an entirety, his findings should not be sustained on appeal, because there is evidence on which findings may be predicated. Hamilton v. Morgan, 93 Fla. 311, 112 So. 80, 81; Mulford v. C. F. Trust Co., 99 Fla. 600, 126 So. 762.

A court should not set aside will, deed, or other agreement for mere mental weakness if it does not...