Gay's Estate, In re, 1105

• Decision Date: 15 August 1967
• Docket Number: No. 1105,1105
• Citation: 201 So.2d 807
• Parties: In re ESTATE of Margaret Elizabeth GAY, Deceased.
• Court: Florida District Court of Appeals

Page 807

201 So.2d 807

In re ESTATE of Margaret Elizabeth GAY, Deceased.

No. 1105.

District Court of Appeal of Florida, Fourth District.

Aug. 15, 1967.

W. J. Vaughn and Herschel W. Carney, Melbourne, for appellant, Betty Jo Runyon.

T. Allen Crouch of Fagan, Crouch & Anderson, Gainesville, for appellee, L. R. Jordan.

Earl Faircloth, Atty.Gen., Rivers Buford, Jr., and Malcolm Anderson, Asst. Attys.Gen., Tallahassee, for appellee, The Teaching Hospital, J. Hillis Miller Health Center.

WHITE, JOSEPH S., Associate Judge.

This appeal requires review of proceedings in the county judge's court to revoke probate of a will. A petition to revoke probate was filed by a niece of testatrix. The neice, who had not seen her aunt in several years, had been named beneficiary in a will executed during the year 1952. She was left nothing by the will now in question. Instead the bulk of the estate, appraised at $59,000, was left to J. Hillis Miller Teaching Hospital at the University of Florida, where the testatrix was confined as a patient at the time of execution of the later will.

Testimony was taken regarding the circumstances surrounding execution of the will and the county judge denied the petition. The niece has taken this appeal, contending that undue influence to which the testatrix was subjected rendered probate of the will improper.

The testatrix, Margaret Elizabeth Gay, a widow and a retired registered nurse, was sixty-one years of age, without child or other lineal descendants. She entered the hospital January 20, 1961, for diagnosis and treatment of an aneurysm, with bleeding, near the base of the brain. An operation was recommended. The will was executed January 26, 1961, and the operation followed the next day. Mrs. Gay died February 3, 1961, while yet a patient in the hospital.

Florida Statute § 731.19, F.S.A., rendering voidable charitable devises and bequests made under certain conditions, is not applicable here.

In support of the appeal appellant disputes the sufficiency of the evidence to support the county judge's decision that execution of the will was free from undue influence. This court may reverse only if there is an absence of substantial evidence to support the decision or if the trial judge has misapprehended the legal effect of the evidence as a whole. In re Estate of Walker, Fla.App.1966, 188 So.2d 352.

The record indicates that execution of the will now in dispute was first mentioned by Mrs. Gay on the occasion of a visit by a close friend, Mrs. Hostetter, who was then residing in Gainesville. Mrs. Hostetter testified that she had on several occasions visited Mrs. Gay since her arrival at the hospital in Gainesville and that on the second visit and frequently thereafter Mrs. Gay told her that 'she wanted to make her will.' According to Mrs. Hostetter, Mrs. Gay said 'that she wanted the University of Florida to have it, and I told her she had her will made, hadn't she, and she said, yes, that they had plenty and didn't need it, and she wanted the University of Florida to have it to use it for research so that it would help others.' She requested Mrs. Hostetter to 'call an attorney' to prepare the will. Mrs. Hostetter testified that she 'tried to put her off' and 'would put her off from time to time.'

Finally Mrs. Hostetter went to the hospital office. There she was told 'that is out of our power, we can have nothing to do with that at all as we would be the receivers and we don't want anything to do with it, and we can't.'

Mrs. Hostetter went a second time when she 'saw another man' and was told the same thing.

L. R. Jordan, director of the hospital, visited Mrs. Gay and described his visit as follows:

'When I arrived at work Monday morning I had a note from the nurses' division that a patient on the, as I remember, it was the fourth floor, anyway, where Mrs. Gay was, wanted to change her will and leave her estate to the University of Florida Hospital. This was all the note said, this was turned over to nursing by the people that were on during the weekend when this came up. Later in the morning I received a call from my unit manager, we have an administrative manager on each floor, asking that I come up to talk to Mrs. Gay. Monday is the busiest day that I have in the office because I am usually not in the office on Saturday afternoons or Sundays, and have the correspondence to check over and all of the admissions to look over and problems of these people that have gone off shifts, so I didn't get up to see Mrs. Gay until late in the afternoon. Before I got up I was paid a visit by Mrs. Hostetter who was a friend of Mrs. Gay's, who gave me essentially the same message that I had received from the nursing personnel as well as from the administrative personnel.

'Q. Did you talk to Mrs. Gay on that Monday?

'A. I went up to her room, the exact time I don't remember, I do remember it was kind of late in the afternoon, I had a fairly rough day in the office, went on the floor and checked by the nursing station to find out if her physician or any of the members of the staff that were looking after her happened to be there, and the resident physician in charge of Mrs. Gay's care was there and I asked him if it would be all right if I went in to talk to her at this time, were there any problems, and he said that there were none whatsoever to go right on in.

'Q. Did you talk to her at that time?

'A. Yes, I went in and introduced myself first, to identify who I was, and we had a lengthy conversation, I would say in excess of thirty minutes, somewhere between thirty and forty-five minutes. We talked about generalities at first, she I am sure, when I went in and introduced myself and I said, 'I understand you want to see me, that you have been asking to see me,' and she said, 'Yes.' I said, 'First of all, let's find out how they are treating you,' because anytime that I am talking with patients I like to know whether the people on the floor are doing their job and what kind of condition exists and check up on what kind of work they are doing. She brought out very quickly that she was a registered nurse, and she talked to me about our nursing students, they wear pale blue uniforms, and the graduate nurses wear white uniforms, she commented on the beautiful blue uniforms and how attractive and intelligent the nursing students were. All of our nursing students are regular college students and do receive a degree. We discussed this, she commented on the doctors that were looking after her and how well she had been treated. She talked about West Virginia, she told me she had come to Melbourne from Charleston, West Virginia, she told me, the only family she mentioned, she mentioned a sister and her husband that lived in West Virginia, and she mentioned a niece, she had a niece in south Florida, Fort Lauderdale, as I remember, and we got into conversation, we talked for such a long time because this was the first visit that I had with her.

'Q. During your conversation with her did you all discuss the will?

'A. We did, this was the last thing that we discussed. As I remember, I didn't bring the subject up, she brought the subject up, she knew why I was there, she had asked for me,...