Hamilton v. Morgan

• Decision Date: 19 February 1927
• Citation: 112 So. 80,93 Fla. 311
• Parties: HAMILTON et al. v. MORGAN.
• Court: Florida Supreme Court

112 So. 80

93 Fla. 311

HAMILTON et al. v. MORGAN.

Florida Supreme Court, Division B.

February 19, 1927

Suit by Neva Hamilton and others, minors, by Rosa Hamilton, their next friend, and Ralph Hamilton and others in their own right against A. J. Morgan, as executor of the will of Bartlett Hamilton, deceased, to contest the will, instituted pursuant to Rev. Gen. St. § 3602. From a final decree, on appeal pursuant to section 2923, reversing an order of the probate court denying probate of the will, the contestants appeal.

Affirmed.

Syllabus by the Court

SYLLABUS

Statute permitting devise or bequest of property does not apply to homestead (Rev. Gen. St. 1920, § 3592). Section 3592, Revised General Statutes of Florida 1920 (not applicable to the homestead), in effect, provides that every person of the age of 21 years and of sound mind shall have the power to dispose of his real or personal property, of whatever kind he may be possessed, by last will and testament, in writing.

Wills should be given effect except on clear showing of deception undue influence, or other fraud or disposition of property contrary to law (Rev. Gen. St. 1920, § 3592). This court is committed to the doctrine that wills, so executed, should be given effect, unless it clearly appears that the free use and exercise of a 'sound mind' by the testator in executing the will was in fact prevented by deception, undue influence, or other means, or that the disposition of the property is contrary to law.

Free use and exercise of mind, sound at execution of will, will be assumed until contrary appears (Rev. Gen. St. 1920, § 3592). The free use and exercise of a 'sound mind' in making a will may be prevented in many ways; but if a testator has a 'sound mind' when he makes his will, its free use and exercise will be assumed until the contrary clearly appears.

Testator of sound mind may make unjust and unnatural will and disinherit children or others with just claim on his bounty (Rev. Gen. St. 1920, § 3592). A testator of sound mind has a perfect right to make an unjust and unnatural will, and may disinherit his children or others having a just claim on his bounty.

Excluding near kindred is not, of itself, regarded as unreasonable demonstrating mental incapacity of testator (Rev. Gen. St 1920, § 3592). When a testator has reasonable grounds to dislike those nearest to him and has exercised his lawful right to disappoint them in the execution of his will, his conduct in doing so is not generally to be regarded as unreasonable, in the sense of evidencing mental incapacity.

Findings of fact by probate court on conflicting evidence should not be disturbed, if sustained by ample evidence; where probate judge misapprehended legal effect of evidence as entirety his finding should not be sustained on appeal because there is evidence on which findings may be predicated; evidence as to mental capacity of testator held to render probate judge's order denying probate of will error (Rev. Gen. St. 1920, § 3592). The findings of fact by a probate judge upon conflicting evidence should, ordinarily, not be disturbed on appeal to the circuit court, where there is ample evidence to sustain the findings; yet, where the probate judge misapprehended the legal effect of the evidence as an entirety, his finding should not be sustained merely because there is evidence that is contradicted, on which the findings may be predicated.

Appeal from Circuit Court, Hillsborough County; L. L. Parks, judge.

COUNSEL

Kelly, sutton & Shaw, of Tampa, for appellants.

Wm. M. Taliaferro, Taliaferro & Morris, and R. G. Tittsworth, all of Tampa, for appellee.

OPINION

TERRELL J.

This suit was instituted, pursuant to section 3602, Revised General Statutes of Florida 1920, for the purpose of contesting the probate of the will of Bartlett Hamilton, late of Plant City, Hillsborough county, Fla. The contestants are the seven children of the testator, four of whom are minors. A. J. Morgan, the executor appointed in the will, is named as defendant.

The testator executed his will December 2, 1921, devising $1 each to his former wife and the five older children, and $100 each to the two younger children. The bulk of the estate, worth $8,000 or $9,000, after discharging all legal obligations, he devised to his nephew, Lovell H. Harrell, and his executor, A. J. Morgan, to share equally.

Probate of the will is resisted on the ground of (1) mental incapacity, (2) undue influence, and (3) illegal execution both as to real and personal estate.

Upon final hearing on the issues made and testimony duly taken, the probate judge entered his order denying the probate of the will and allowing an attorney's fee of $500 and cost of the contest proceedings to be paid from the said estate. Pursuant to section 2923, Revised General Statutes of Florida 1920, appeal from the order of the probate court was prosecuted to the circuit court of Hillsborough county, resulting in a final decree reversing the order of the probate court and remanding the cause, with directions to dismiss the contest. The cause comes here on appeal from the final decree of the circuit court.

Section 3592, Revised General Statutes of Florida 1920 (not applicable to the homestead), in effect, provides that every person of the age of 21 years and of sound mind shall have the power to dispose of his real or personal property, of whatever kind he may be possessed, by last will and testament, in writing. This court is committed to the doctrine that wills so executed should be given effect, unless it clearly appears that the free use and exercise of a 'sound mind' by the testator in executing the will was in fact prevented by deception, undue influence, or other means, or that the disposition of the property is contrary to law; otherwise, the right given by the statute to dispose of property by will would be thwarted. Sweetser v. Ladd, 52 Fla. 663, 41 So. 705; Newman v. Smith, 77 Fla. 633, 667, 688; 82 So. 236.

A 'sound mind,' as applied to the execution of a will, comprehends ability of the testator to mentally understand in a general way the nature and extent of the property to be disposed of, and the testator's relation to those who would naturally claim a substantial benefit from the will, as well as a general understanding of the practical effect of the will as executed. The free use and exercise of a 'sound mind' in making a will may be prevented in many ways; but if a testator has a 'sound mind' when he makes his will, its free use and exercise will be assumed until the contrary clearly appears. Newman v. Smith, supra; Delafield v. Parish, 25 N.Y. 9; 28 R. C. L. par. 35, page 86.

Bearing on the question of whether or not the testator was of sound mind and mentally capacitated to execute the will in question, the record discloses that he was married in 1896 to Rosa Hamilton, from which union came the contestants, whose ages ranged from about 8 to 26 years at the time this suit was brought. From his marriage to within a few weeks of his death Bartlett Hamilton constantly indulged his appetite for intoxicating liquors. He was divorced from Rosa Hamilton in February, 1920, and deeded her the place where they had made their home during their married life, and which was worth $15,000 or $18,000. Family relations in the Hamilton home had long been turbulent and rent by demestic cyclones. Father and family appear to have become completely alienated and estranged, and some time prior to the divorce he took up his residence at a rooming house in Plant City. He shifted about from pillar to post, and some time before his death he took...