In Re Sharp's Estate, in Re

• Decision Date: 02 August 1938
• Citation: 133 Fla. 802,183 So. 470
• Parties: In re SHARP'S ESTATE.
• Court: Florida Supreme Court

183 So. 470

133 Fla. 802

In re SHARP'S ESTATE.

Florida Supreme Court

August 2, 1938

Rehearing Denied Oct. 10, 1938.

En Banc.

Proceeding in the matter of the estate of H. Lee Sharp, deceased wherein a certain instrument was adjudged to be the will of H. Lee Sharp, deceased. From a decree of the circuit court affirming the decree of the probate court, Clarence Sharp caveator, appeals.

Cause reversed with directions. Appeal from Circuit Court, Orange County; Frank A. Smith, judge.

COUNSEL

William N. Ellis, of Orlando, and W. R. Robinson and Oscar W Roberts, Jr., both of Carrollton, Ga., for appellant.

Akerman & Dial, of Orlando, for appellee.

OPINION

PER CURIAM.

It appears that this cause was tried both before the County Judge and the Circuit Court upon a wrong theory.

No question as to the testamentary capacity of H. Lee Sharp was involved. Indeed it may be said that his capacity in that regard was not only presumed but admitted. The point involved in the controversy was not one of undue influence nor of testamentary capacity but whether the document filed with the Probate Judge for probate was in the circumstances in which it was made a will in fact.

The caveator, Clarence Sharp, contends that the document was not a will, first, because in the circumstances in which it was signed by his father a testamentary purpose did not exist that the signing of the paper was a mere ceremonial observance necessary to obtain the degree in Masonry which Mr. Sharp at that time along with twenty or more persons sought to have conferred upon him; that the dominating purpose which actuated the signing of the document was not the calm, solemn and momentous purpose of disposing of his estate, but it was a mere form prescribed by the society to be observed by the candidates for initiation who desired the degree; secondly, that there was absent from the document as it was signed the ambulatory character which is essential to the existence of a will. 68 C.J. 602; Schaefer v. Voyle, 88 Fla. 170, 102 So. 7; McDaniel v. Johns, 45 Miss. 632, text 541, Schouler on Wills, Executors and Administrators, 6 Ed., Vol. 1, Sec. 326.

Under the statute pertaining to wills in this State, Comp.Gen.Laws 1927, § 5461, a will may be annulled in two ways: First, by drawing a new one, and secondly, by taking possession of the one drawn and destroying it by tearing or burning. Therefore when one makes a will it must necessarily possess the ambulatory character which would enable the maker to get possession of it whenever he desired and annul it by tearing, burning or destroying it. If he has not the right to take possession of it then it is perfectly obvious that the document, whatever it may be, is no will.

Now if the maker of such a document as was made in this case did not have the right to go to the Secretary of the Lodge after the initiation and demand the possession of the document in order that he might destroy it, but possession of the paper could be held by the Secretary as Lodge evidence, then the maker of the paper had conformed to the Lodge ceremonial requirement and it was a Lodge document over the possession of which it had complete control, and it therefore follows that the document did not have the ambulatory character necessary to the existence of a valid will which would enable the maker of the document at any time to obtain possession of the paper upon a simple demand for its possession or by legal process to obtain it.

In the cause which was presented to the County Judge there was ample evidence to show that the making of the documents by the twenty or more novitiates assembled in the lodge room on the 12th day of December, 1922, to have conferred upon them the Fourteenth Degree in Masonry according to the Scottish Rite, was a mere ceremonial performance in which it was necessary for these novitiates to engage to the end that they might obtain the degree which they sought and which was the dominating and controlling purpose of the evening and the motivating control of all of their acts.

'Will.--In some of the continental Rites, and in certain high degrees, it is a custom to require the recipiendary to make, before his initiation, a will and testament, exhibiting what are his desires as to the distribution of his property at his decease. The object seems to be to add solemnity to the ceremony, and to impress the candidate with the thought of death. But it would seem to be a custom which would be 'more honored in the breach than the observance'. It is not practiced in the York and American Rites.' Ency. on Free Masonry, Vol. 2, p. 849.

In order therefore for the Court to ascertain the real purpose of the making of that document it was essential that all the evidence which could have any bearing whatsoever upon the true nature of the transaction should have been...