In Re Donnelly's Estate, in Re

• Decision Date: 15 July 1938
• Citation: 137 Fla. 459,188 So. 108
• Parties: In re DONNELLY'S ESTATE. GOLD v. ASHBY et al.
• Court: Florida Supreme Court

188 So. 108

137 Fla. 459

In re DONNELLY'S ESTATE. GOLD v. ASHBY et al.

Florida Supreme Court

July 15, 1938

On Rehearing April 11, 1939.

Rehearing Denied April 28, 1939.

Proceeding in the matter of the estate of Mary A. Donnelly, deceased wherein the will was admitted to probate, Glenn W. Gold was appointed executor, and Walter S. Ashby and others filed petition for revocation of the probation of the will. From a decree of the circuit court for petitioners, the executor appeals.

Reversed.

WHITFIELD and CHAPMAN, JJ., dissenting. Appeal from Circuit Court, Dade County; Paul D. Barns, Judge.

COUNSEL

Mitchell D. Price, Charles W. Zaring, and Robert S Florence, all of Miami, for appellant.

Stanley Milledge and Robert G. Gilroy, both of Miami, and Stockton Ulmer & Murchison, of Jacksonville, for appellees.

OPINION

CHAPMAN Justice.

The transcript herein shows that Honorable W. F. Blanton, County Judge of Dade County, Florida, on November 13, 1934, in full compliance with all statutory requirements, made and entered an order admitting to probate the last will and testament of Mary A. Donnelly, such will being as follows:

' 'I, Mary A. Donnelly, of the City of Miami, Dade County, Florida being of sound mind and memory, do hereby make, publish and declare this to be my Last Will and Testament; hereby revoking all former Wills, Codicils, or Testamentary Dispositions heretofore made by me.

'First: I order and direct that my Executor, hereinafter named, pay all my just debts and funeral expenses as soon after my decease as conveniently may be, and I hereby order and direct that I be buried in the City Cemetery at Miami, Florida, in the same lot with the late Richard Ashby, and my sister. Margaret Ashby.

'Second: I give and bequeath any oriental rugs, table linen, dishes, silver, and clothing which I may possess at the time of my death, together with the sum of Two Thousand and No/100 ($2,000.00) Dollars in cash, to Mrs. Gussie Budge, of 323 N.E. 27th Street, Miami, Florida.

'Third: I give and bequeath my oath invalid table and my lady's Mahogany desk, now located at 334 N.E. 22nd Street, Miami, Florida, to J. Winifred Gold of 1219 Lisbon Street, Coral Gables, Florida.

'Fourth: I give and bequeath all of my jewelry to Margaret Gold, of Miami, Florida, daughter of the above mentioned J. Winifred Gold.

'Fifth: I give and bequeath to Mrs. Clara Hunt, of 334 Ann Street, Hartford, Connecticut, the sum of Two Thousand and No/100 ($2,000.00) Dollars cash.

'Sixth: All the rest, residue and remainder of my estate, both real and personal, wherever located or in whatever form the same may be, I give, devise and bequeath unto William H. Gold of 1219 Lisbon Street, Coral Gables, Florida, or to his son, Glenn W. Gold, of Miami, Florida, in the event the said William H. Gold should predecease me.

'Seventh: I hereby constitute and appoint Glenn W. Gold of Miami, Florida, as Executor of this my Last Will and Testament, and I direct that he serve as such without being required to post or file bond as Executor.

'In testimony whereof, I have hereunto subscribed my name and affixed my seal, the 15th day of November, In the year of our Lord One Thousand Nine Hundred and Thirty Three.

'Mary A. Donnelly [Seal]

'We do hereby certify that on this 15th day of November, A. D. 1933, at Miami, Dade County, Florida, the above named Mary A. Donnelly, to us personally known, being then of sound mind and memory, signed, published and declared the foregoing to be her Last Will and Testament in our presence and we, at her request and in her presence and in the presence of each other, hereunto subscribe our names as witnesses thereto.

'C. E. Courtney

'Edward P. White

'R. E. Kunkel'

On June 26, 1935, a petition for revocation of the probation of the will, supra, was filed in the County Judge's Court of Dade County, Florida, on the part of Walter S. Ashby, Lillian M. Gaby, Richard Ashby Marriott, and Martina M. Smith, against William H. Gold, Glenn W. Gold, J. Winifred Gold, Mrs. Gussie Budge, and Mrs. Clara Hunt. The petition seeking a revocation of the will alleged, among other things, that at the time of the execution of the will by Mary A. Donnelly on November 15, 1933, a confidential relationship existed between William H. Gold and the testator; that William H. Gold actively procured and participated directly and indirectly in the preparation and execution of the will of Mary A. Donnelly and in which William H. Gold was the chief beneficiary; also; (a) Mary A. Donnelly lacked testamentary capacity; and (b) Mary A. Donnelly was unduly influenced by William H. Gold. The respondents answered and denied each and every the material allegations of the petition.

Considerable testimony was taken before the Honorable W. F. Blanton, and after hearing counsel for the respective parties, on March 23, 1937, made and entered an order overruling and denying the petition for the revocation of the order admitting to probate the Will of Mary A. Donnelly. The material portions of his said order are, viz.:

'The Court finds that William H. Gold was the chief beneficiary under the said will of Mary A. Donnelly, dated November 15, 1933, and that except for the execution thereof he would not have been a beneficiary of the Estate of said Mary A. Donnelly; that the evidence adduced by the Petitioners made out a prima facie case of undue influence; and raised the presumption of undue influence being exerted by said William H. Gold over said Mary A. Donnelly in the preparation and execution of her said will. And that, therefore, by reason of said presumption, the burden of proof shifted from the contestants, or petitioners, to the respondent, or proponent, of said will to adduce sufficient testimony to at least equalize or overcome the presumption of undue influence and prima facie case made out by the contestants, or petitioners.

'The Court finds that the respondent, chief beneficiary under said will, has adduced sufficient testimony to equalize, if not overcome, the testimony, presumption of undue influence, and prima facie case made by the contestants, or petitioners, and that from all of the testimony submitted the Court cannot say that the said will of Mary A. Donnelly, dated November 15, 1933, was the result of undue influence.'

The contestants, viz., Walter S. Ashby, Lillian M. Gaby, Martina Smith and Josephine Marriott Kipp, took an appeal from the order aforesaid to the Circuit Court of Dade County, Florida, when an order of reversal was entered on May 28, 1937, and in so doing said:

'* * *

'Richard Ashby was the father of Walter S. Ashby and Lillian Gaby, and the grandfather of Martina M. Smith and Josephine Marriott Kipp, the petitioners herein. Richard Ashby was married three times. By the first wife he had all of his children. His second wife was the sister of Mary Donnelly. His third wife died before the matters involved herein had transpired. From the time Richard Ashby married her sister, Mary Donnelly had made her home with the Ashbys. After her sister died she continued managing the home the same as she had while her sister lived and continued doing this during the life of his third wife.

'For about forty years she lived in the same house with Richard Ashby and ministered to his wants. She was a lone woman without relatives of her own. She worked in the Ashby home without stated compensation, and in recognition of her services to him, in 1924 Richard Ashby set up a trust to provide her a home and $250.00 a month so long as she lived. During this time, friendly relations existed between Mary Donnelly and the other members of the Ashby family, and Mary Donnelly made her will giving all she had to Richard Ashby, or if he predeceased her, to his estate.

'In 1924 when Richard Ashby created the trust for Miss Donnelly he was transacting all his business through First Trust & Savings Bank, but in 1927 he took his business to W. H. Gold. In 1931 Mary Donnelly also began having Gold look after her investments. In October 1932, Walter S. Ashby came to Miami with his family and took up his residence at his father's home. Shortly after that, Lillian M. Gaby came to Miami with her family and took up her residence at her father's home. In February 1933 Walter S. Ashby and Lillian M. Gaby procured several other persons to petition the lower court to adjudge their father insane, and on March 1, 1933, Richard S. Ashby was adjudicated insane. Two days later the lower court appointed Walter S. Ashby and Lillian M. Gaby guardians of their father and of his estate.

'The guardians promptly demanded of W. H. Gold all of Richard Ashby's assets in his possession including the securities and mortgages Richard Ashby set aside for Mary Donnelly in 1932 to provide her with additional income, which securities were for some reason in the possession of W. H. Gold. Gold refused to comply with their request, but instead delivered these assets to the County Judge's Court, and upon advice of counsel recorded the Assignment of the Mortgages that had been turned over to Miss Donnelly, whereupon the petitioners filed suit in the Circuit Court against Gold and Miss Donnelly to compel delivery of all these assets to petitioners.

'This suit was terminated by a final decree of court agreed to by the parties and a release executed by Mary Donnelly. By the final decree the '1932 trust' was terminated, and in lieu thereof she received the Magnant mortgage for $6,200.00, which had then been in default of two or more years, and $1,300.00 in cash. In July 1933 Richard Ashby died.

'It appears that the '1932 trust' for Mary Donnelly was procured by W. H. Gold from Richard Ashby and that he held the trust res in his possession. The evidence does not...