In Re Starr's Estate, in Re

• Decision Date: 26 December 1935
• Court: Florida Supreme Court
• Parties: In re STARR'S ESTATE. v. WILSON et al. STARR et al. WILSON et al. v. STARR et al.

170 So. 620

125 Fla. 536

In re STARR'S ESTATE.

STARR et al. v. WILSON et al.

WILSON et al. v. STARR et al.

Florida Supreme Court, Division A.

December 26, 1935

Rehearing Waived Nov. 18, 1936.

Proceeding in the matter of the estate of Clara R. Starr, deceased, by Rowland Hale Starr and others to contest a will of Clara R Starr, deceased, the proponents thereof being Bradley C Wilson, as executor, etc., and others. From an order and decree of the circuit court denying the probate of the will proponents appeal, and, from a decree made by another circuit judge of the same circuit reversing the decree denying the probate of the will and ordering that the will be admitted to probate, contestants appeal.

Decree which reversed prior decree and ordered will admitted to probate reversed because void for want of jurisdiction, and decree denying probate of will also reversed, with directions. Appeal from Circuit Court, Polk County; Harry G. Taylor, judge.

COUNSEL

Don Register, of Winter Haven, and Yager, Bebout & Stecher, of Toledo, Ohio, for appellants.

Holland & Bevis, of Bartow, and Satterlee & Canfield, of New York City, for appellees.

OPINION

BROWN Justice.

Two appeals have been taken to this court involving the validity of the same last will and testament, one being taken from an order and decree of the circuit court for Polk county, made by Circuit Judge Taylor, denying the probate of a will made by Clara R. Starr in 1924 on the ground that she did not possess sufficient mental capacity at that time to execute a valid will, and the other appeal, being taken from a decree made by Circuit Judge Petteway of the same circuit, reversing the decree which had been entered by Judge Taylor, and ordering that the will be admitted to probate.

On October 11, 1926, Bradley C. Wilson, as executor, filed a will of Clara R. Starr, dated December 24, 1924, and applied for probate thereof in Polk county, Fla. Eleven days thereafter a will of the said Clara Starr, dated February 13, 1911, was filed in Lucas county, Ohio, and the probate court of Lucas county, Ohio, took jurisdiction thereof and probated said will. This will was admitted to record in Polk county, Fla., on April 22, 1930, and in June, 1930, an attempt was made to probate the 1924 will in Polk county, Fla., but the order entered on June 6, 1930, for probate of the 1924 will was void on account of the disqualification of Judge Wiggins. Thus the only will of the said Clara R. Starr that has ever been admitted to probate was the 1911 will. This suit is a contest between the Ohio executor and the heirs of Clara R. Starr's late husband, Rowland Starr, claiming under the will of 1911 admitted to probate in Ohio, and Bradley C. Wilson, executor of the 1924 will, petitioner for probate, joined by C. Duncan Bruce and wife, beneficiaries.

Upon the disqualification of Judge Wiggins, Hon. Harry G. Taylor, one of the judges of the circuit court of Polk county, Fla., took jurisdiction of the entire matter at the request of Judge Wiggins, Rowland Hale Starr and two other heirs of Mrs. Clara Starr's husband, and the executor under the 1911 will, contested the probate of the 1924 will on the grounds of lack of testamentary capacity, undue influence, and a previous alleged agreement on the part of G. Duncan Bruce and wife which it was claimed recognized the validity of the 1911 will, and estopped them from seeking to probate the 1924 will. The last ground of contest was properly stricken by Judge Taylor on motion of proponents. Schouler on Wills (6th Ed.) §§ 730, 743; Redfearn on Wills, etc., in Fla. 142, 143.

After hearing the testimony, Judge Taylor entered an order denying the probate of the 1924 will, giving as his reason the lack of testiamentary capacity of Clara R. Starr.

The proponents-appellees, being uncertain as to the capacity in which Judge Taylor was functioning, filed two appeals from this decision or order of Judge Taylor's; one was direct to the Supreme Court upon the assumption that the procedure before Judge Taylor and Judge Taylor's decision were in the circuit court (which was correct); the other appeal was taken from Judge Taylor's decision to the circuit court of Polk county, Fla., on the assumption that Judge Taylor was sitting as a substitute county judge and that the proceedings before him were in the court of the county judge. This assumption was probably due to the phraseology used in the court orders. Judge Petteway of the circuit court, who expressed some reluctance to review the action of his brother circuit judge after carefully reviewing and analyzing the testimony and applicable authorities, reversed the judgment which had been rendered by Judge Taylor. Although this appeal to the circuit court was mistakenly taken, Judge Petteway's opinion and conclusions on the testimony are in accordance with our own views of the case tried before Judge Taylor.

Section 5199, C.G.L. of 1927, says: 'The judge of the circuit court, in case of the disqualification, absence, sickness or other disability of a county judge, is authorized to discharge all the duties appertaining to said judge in regard to the probate of wills, granting letters testamentary and letters of administration, appointing curators and guardians, and making all necessary orders in regard to the custody, preservation or sale of the estates of deceased persons.'

In State v. Horne, 86 Fla. 309, 98 So. 330, 331, this court, speaking through the present Chief Justice, said: 'Section 17, art. 5 of the Constitution does not give to the county judge exclusive jurisdiction 'of the settlement of the estates of decedents,' etc., and section 11, art. 5, gives the circuit courts stated elements of jurisdiction and also jurisdiction 'of such other matters as the Legislature may provide.' This is ample authority for the quoted statute; and it is not affected by the provision of section 11 that circuit courts shall have 'supervision and appellate jurisdiction of matters arising before county judges pertaining to their probate jurisdiction.” etc.

Judge Taylor took jurisdiction pursuant to the above-quoted section of the Compiled General Laws, and was acting in the capacity of circuit judge when he took jurisdiction of the cause, instead of as a substitute county judge; therefore the appeal to the circuit court, acted upon by Judge Petteway as circuit judge, was unauthorized and conferred no jurisdiction, and the judgment rendered thereon was void and of no effect. Thus the effective appeal here is the one taken to this court from Circuit Judge Taylor's decision. See, also, Schaefer v. Voyle, 88 Fla. 170, 102 So. 7. All these proceedings in the lower court took place before the adoption of section 52 of the Probate Act of 1933 (Acts 1933, c. 16103).

In the 1911 will Clara R. Starr left the bulk of her estate to her husband, Rowland Starr, and his heirs, and to her father and brother. By 1921 the husband, father, and brother were dead, and she made a new will. The new will of 1921 made a few small bequests, such as $2,000 each to the pastor of her church (as pastor), to Boardman, a distant cousin and her only living blood relation, and to Clarence Griffin, a negro chauffeur, and the bulk of her estate was to be divided equally between Dr. Simondson and Mr. G. Duncan Bruce.

Dr. Simondson was the family physician and took care of Mrs. Starr's father, who lived with the Starrs. It also appears that Mr. Rowland Starr during his lifetime needed care and attention, and these people, being quite wealthy, had secured the services of Dr. Simondson of Winter Haven, Fla., for that purpose, and had him residing in their home in Winter Haven virtually as a member of the family. It also appears from the undisputed facts in the record that said G. Duncan Bruce was a very close personal friend of the family and business associate of Rowland Starr; that Clara R. Starr and her husband, Rowland Starr, were both very fond of Mr. and Mrs. Bruce and their little daughter, the Starrs having had no children of their own.

Mrs Starr had depended greatly upon her husband, especially in business matters, and at the death of her husband in 1911 it appears from the evidence that, though a very intelligent and cultured old lady, she knew practically nothing about the management of business affairs, and consequently she asked Mr. Bruce, an intimate friend of long standing, to attend to her business for her and relieve her of that burden, and she wanted the doctor to continue on in her home as physician and managing head of the household for the remainder of her life, which necessitated his complete abandonment of public practice during her lifetime. Obviously Dr. Simondson could not enter into such an agreement without adequate provision for compensating him, nor could Mr. Bruce; and so between the three of them, Simondson, Bruce, and Mrs. Starr, it was agreed that they would undertake to do what she wanted them to do, provided she would make them joint heirs of her estate at her death, and there was no other compensation provided for them. This was a perfectly normal agreement under the circumstances, and a very advantageous one for Mrs. Starr, because it enabled her to enjoy her complete estate during her lifetime without having to reduce her enjoyment of the estate by having to pay physician's or management fees to Dr. Simondson and Mr. Bruce, and, since she had only one distant relative, and Dr. Simondson and the Bruces were her best friends, she would naturally want them to have a large share of her estate at her death in any event. Mrs. Starr executed a will in accordance with this understanding in 1921. As it was, both parties lived up to their agreement until March, 1926, at which time there seems to have been a...