Hopkins v. McClure

• Decision Date: 21 March 1950
• Citation: 45 So.2d 656
• Parties: HOPKINS et al. v. McCLURE et al.
• Court: Florida Supreme Court

Page 656

45 So.2d 656

HOPKINS et al. v. McCLURE et al.

Supreme Court of Florida, Special Division B.

March 21, 1950.

Rehearing Denied April 6, 1950.

J. A. Scarlett, DeLand, for appellants.

Murray Sams and John L. Graham, DeLand, for appellees.

TAYLOR, Associate Justice.

This appeal is from a judgment of the Circuit Court of Volusia County affirming the judgment of the County Judge of that County dismissing a petition for the revocation of the probate of the will of the late Anne Yale Allis Marsh.

The petition was originally filed by Harry H. Hopkins and Richard S. Allis. Hopkins is alleged to be a nephew and sole heir at law of the deceased. Allis is not shown to be either an heir at law or a beneficiary under a former will, or the personal representative named in a former will. Upon motion of the defendants the petition was dismissed as to Allis. This was not error. See Sec. 732.30, Florida Statutes, F.S.A.

The will was attacked because of alleged undue influence exerted upon the testatrix by A. J. McClure, the principal beneficiary.

The petition also alleges (1) a state of facts which tend to show a moral obligation on testatrix to make a bequest to Allis in the sum of $10,000.00 and a long-existing intention on her part to make such bequest. (2) That A. J. McClure over-persuaded the testatrix and caused her to transfer to him her home, (reserving a life estate), her automobile and an unpaid balance on an annuity. Upon motion these allegations were stricken from the petition. We find no error in this order. The facts alleged are not grounds for revoking the probate of the will. The County Judge was without jurisdiction to adjudicate the validity or invalidity of the alleged transfers of property. Insofar as the facts alleged tend to show a control by the mind of McClure over the mind of the testatrix, or tend to show the relationship between the parties, they could be proven under the general allegations of the petition. After answers to the petition were filed by McClure and the administrator c. t. a. of the will, testimony was taken.

During the progress of the trial while a witness for contestant was on the stand, the following proffer of evidence was made: 'We propose to prove by this testimony that Mrs. Marsh undertook to have her homestead made over to Dr. and Mrs. Harry L. Taylor of DeLand, Florida, Mrs. Taylor being Mrs. Marsh's distant relative and descended mutually from Mrs. Anne Yale, their great grandmother, and that, to put her plan in motion, she wrote a letter to Alfred J. McClure outlining her intention so to do, and asked the advice and assistance of the said Alfred J. McClure. That upon receiving notification of such intention and request for advice, Alfred J. McClure took the train to DeLand, Florida and arrived here in DeLand early in June of 1942 and then, shortly thereafter, caused to be put of record a deed to that home property of Mrs. Anne Yale Allis Marsh in which she deeded to him the whole property, reserving unto herself however, a life interest.'

This proffered testimony was not admitted, apparently for the reason that the Judge considered it too remote in time. The will was executed August 1, 1941, and the deed referred to in the proffer was dated June 10, 1942.

We think this evidence should have been received. When undue influence of one person...