In Re Thompson's Estate, in Re

• Decision Date: 18 October 1940
• Citation: 145 Fla. 42,199 So. 352
• Court: Florida Supreme Court
• Parties: In re THOMPSON'S ESTATE. THOMPSON v. THOMPSON et al.

199 So. 352

145 Fla. 42

In re THOMPSON'S ESTATE. THOMPSON v. THOMPSON et al.

Florida Supreme Court

October 18, 1940

On Rehearing Division A December 20, 1940.

Rehearing Denied Jan. 10, 1941.

En Banc.

Proceeding in the matter of the estate of Frank Thompson, deceased between Sarah Thompson and William Thompson and others. From an unsatisfactory order, Sarah Thompson appeals.

Reversed and remanded with directions.

TERRELL C.J., and WHITFIELD and THOMAS, JJ., dissenting. Appeal from Circuit Court, Sumter County; J. C B. Koonce, judge.

COUNSEL

J. C. Getzen, Jr., of Bushnell, and T. H. Getzen, of Dade City, for appellant.

T. G. Futch, W. T. Hall, P. B. Howell, and Carroll W. Fussell, all of Leesburg, for appellee.

OPINION

PER CURIAM.

In this couse Mr. Chief Justice TERRELL, Mr. Justice WHITFIELD and Mr. Justice THOMAS are of opinion that the order of the Circuit Court in this cause should be affirmed while Mr. Justice BROWN, Mr. Justice BUFORD and Mr. Justice CHAPMAN are of opinion that the said order should be reversed. When the members of the Supreme Court, sitting six members in a body and after full consultation, it appears that the members of the Court are permanently and equally divided in opinion as to whether the order should be affirmed or reversed, and there is no prospect of an immediate change in the personnel of the Court, the order should be affirmed; therefore it is considered, ordered and adjudged under the authority of State ex rel. Hampton v. McClung, 47 Fla. 224, 37 So. 51, that the order of the Circuit Court in this cause be and the same is hereby affirmed.

Affirmed.

TERRELL, C.J., and WHITFIELD, BROWN, BUFORD, CHAPMAN, and THOMAS, JJ., concur.

On Rehearing.

BUFORD Justice.

On appeal we review order of the Circuit Court reversing the order of the probate court wherein the probate court held that Sarah Thompson was the widow of Frank Thompson, deceased, she being the common-law wife of Frank Thompson at the time of his death.

We deem it unnecessary to detail the evidence. It is sufficient to say that there is evidence in the record which shows that a common-law marriage was contracted between Frank Thompson and Sarah Thompson on July 5, 1918, and that the marriage was consummated by cohabitation. The evidence of the common-law marriage contract is found in the testimony of Sarah Thompson and is undisputed.

This testimony was admissible because the record shows conduct on the part of adverse parties sufficient to waive the provisions of Section 2705, R.G.S., section 4372, C.G.L., in this, viz.: The record shows that the attorney for the administrator cross-examined the witness Sarah Thompson and those claiming as heirs at law of Frank Thompson testified as to the relationship between Frank Thompson and Sarah Thompson. This constituted waiver of the disqualification. See McMullen et al. v. St. Lucie County Bank, 128 Fla. 745, 175 So. 721; Rich v. Hunter, 135 Fla. 309, 185 So. 141.

Aside from this direct evidence tending to prove the marriage contract, there was convincing supporting proof of habit and repute tending to establish the relationship of common-law husband and wife.

In Edge, as Administrator, etc., v. Rynearson, 107 Fla. 461, 145 So. 180, 181, we said: 'Capacity and mutual consent are essential to a common-law marriage, which is recognized in this state. In Le Blanc v. Yawn, 99 Fla. 328, 126 So. 789, we held that the best evidence of such a marriage was the testimony of the contracting parties or those present when they mutually agreed to take each other as man and wife. If this proof cannot be had, it may be proven by habit or repute. When habit or repute is relied on, it must be supported by positive proof that it was generally understood among the neighbors and acquaintances in the community and with whom the parties associate in their daily life that they are living together as man and wife, and that their relations are not meretricious.'

So it is that it is clearly apparent from the record that there was sufficient legal evidence before the county judge to support his finding and order. The record went on appeal to the Circuit Court with the presumption of the correctness of that order.

In Gold, as Executor of Last Will and Testament of Mary A. Donnelly, deceased, v. Walter S. Ashby et al., etc., 137 Fla. 459, 188 So. 108, we held: 'In will contest, probate court's conclusion on conflicting evidence will not be disturbed unless the legal effect of the proof has been misapprehended, or there is a lack of evidence to support the findings.' and cited in support of this holding Hooper v. Stokes, 107 Fla. 607, 145 So. 855, 146 So. 668; Parker v. Penny, 95 Fla. 922, 117 So. 703.

In the Hooper case we held:

'Probate court's fact findings on conflicting evidence in will contest should ordinarily not be disturbed on appeal to circuit court when there is ample evidence to sustain findings.

'Where probate judge in will contest misapprehended legal effect of evidence as entirety, findings should not be sustained merely because there is contradicted evidence on which findings may be predicated.'

The Parker case adheres to the same rule.

So it appears that it may be considered settled in this jurisdiction that on consideration of the evidence the Circuit Court may reverse the order of the County Judge sitting in probate but only if and when it appears that the County Judge misapprehended the legal effect of the evidence as an entirety, or where there is no substantial legal evidence to support the findings of the County Judge, and that the Circuit Judge may not in the exercise of his appellate power reverse the County Judge merely because he does not agree with the County Judge as to the weight and probative force of the evidence.

We are not unmindful of the provisions of Section 55 of the 1933 Probate Act, c. 16103, viz.: 'Appeal to the Circuit Court shall be merely a step in the cause, in the nature of a rehearing of the matter appealed, upon the existing record'. But we do not construe this provision to abrogate or to affect the rule hereinbefore referred to as stated in the Donnelly case, supra, and in other cases cited where that rule has been adhered to.

Neither do we construe what was said in the case of In re Alkires Estate, 142 Fla. 862, 198 So. 475, as conflicting with this rule. It was the contention of the appellant in that case that the Circuit Court had not followed the rule but we said, 'It is difficult in a study of the final decree to reach the conclusion as advanced by counsel for appellants', and we affirmed the decree of the Circuit Court on the application of that rule, saying: 'We are unable to find evidence in the record to sustain the contention that undue influence was exerted over the testator by Mrs. Emma Trammell.'

After the rendition of the opinion, supra, the Court sua sponte reconsidered the record in that case and filed its supplemental opinion on October 25, 1940, 142 Fla. 862, 198 So. 745. In that opinion, inter alia, we said: 'The judicial power in the several courts vested by section 1, Article V, and the original and appellate jurisdiction defined by sections 5, 11 and 17, for the Supreme Court, the Circuit Courts and the County Judges, as stated above, are not delegable and cannot be abdicated in whole or in part by the courts. The appellate jurisdiction and power of the Circuit Courts in reviewing decrees and judgments of the County Judge in probate as well as other defined matters includes the judicial power and duty to determine in each case from a due consideration of the transcript on appeal, whether the decree or judgment of the County Judge is sustained by the legal effect of the entire evidence and by applicable law. The weight to be given to the findings of fact or to the decree rendered upon the facts adduced in evidence in the trial court, as shown by the record on appeal, is for the appellate court to determine for itself within the judicial powers and jurisdiction conferred by the constitution.'

And we further said, in that opinion:

'Judicial appeals are not merely formalities; but are intended to aid in administering right and justice by due course of law, as is required by the constitution, as...