Knight's Estate, In re

• Decision Date: 29 January 1959
• Docket Number: No. A-179,A-179
• Citation: 108 So.2d 629
• Parties: In re ESTATE of Kinney Kellum KNIGHT. Dexter Lowell KNIGHT, Appellant, v. Esther Helen KNIGHT et al., Appellees.
• Court: Florida District Court of Appeals

Page 629

108 So.2d 629

In re ESTATE of Kinney Kellum KNIGHT Dexter Lowell KNIGHT, Appellant, v. Esther Helen KNIGHT et al., Appellees.

No. A-179.

District Court of Appeal of Florida, First District.

Jan. 29, 1959.

Rehearing Denied Feb. 19, 1959.

W. L. Wadsworth, Bunnell, and Upchurch, Melton & Upchurch, St. Augustine, for appellant.

Adams & Judge, Daytona Beach, for appellees.

STURGIS, Chief Judge.

This is an appeal from a summary judgment of the probate court sustaining the will of Kinney Kellum Knight, deceased, probate of which was contested by his son, Dexter Lowell Knight, the appellant (petitioner below), on the grounds: First, that testator lacked testamentary capacity; second, that the will was the product of undue influence exercised upon him by Esther Helen Knight, his widow, and by W. E. Knight, his brother, the appellees (respondents below); and third, that it was not executed in statutory form.

There is no proof supporting the first and third grounds of the contest and we will not discuss them.

The proofs presented on the motion for summary judgment are such that were it not for the confidential relation and participation by testator's brother, W. E. Knight, in the preparation of the will, as to which we will elaborate, the summary judgment would not be disturbed.

The record shows that in January of 1955 testator developed trouble in the region of his neck resulting in a diagnosis of cancer, for which he was operated on two occasions at Duke University in North Carolina. In June of 1956, following these operations, he suffered injuries from an automobile accident while en route to the Duke University hospital for a physical checkup, and was hospitalized at Brunswick, Georgia. While there he suffered a heart attack and it appears that while so hospitalized he prepared a paper of his own draftsmanship in the nature of a will. Such will, if it existed, was not produced. Testator did not proceed to the hospital in North Carolina but returned to Florida. Shortly thereafter he was admitted to a hospital at Bunnell, Florida, for medical treatment and while there executed the subject will on July 11, 1956. He returned to his home for a while and was later hospitalized at Palatka, Florida, until his death on August 27, 1956.

The brother's deposition reflects that the testator, upon leaving the hospital at Brunswick, informed his brother that he wanted his help in having a will prepared, stating, 'That thing that I made in the hospital isn't worth the paper it is written on.' Shortly after the brother, W. E. Knight, returned with the testator from Brunswick to testator's home at Flagler Beach, Florida, and prior to the time testator was admitted to the hospital at Bunnell, the testator informed him of his wishes as to the content of his proposed will. Testator's wife was present at that time. The brother then consulted a firm of attorneys, gave them the instructions for the preparation of the will, received the draft thereof and kept it in his possession until it was presented to the testator at the hospital, assisted in procuring the formal witnesses to the will, was present when it was executed, then received it from the testator and kept it in his possession until it was presented for probate. Testator's wife also assisted in procuring the witnesses and was present when it was executed.

Testator's wife and brother are the principal beneficiaries under the will. Elissa Aileen Cowart, testator's stepdaughter, and his son, the appellant, are minor beneficiaries. The proofs before the probate court on the motion for summary judgment further show that testator's brother W. E. Knight was and for a number of years had been engaged with the testator in substantial business enterprises, and that some of these enterprises were interwoven with the bequests made to W. E. Knight under the will. It also appears that these enterprises had most if not all of the characteristics of a partnership.

There is not the slightest evidence to the effect that the stepdaughter participated in any manner whatsoever in the events leading up to or in the execution of the will. The activities of the wife as shown by the record do not constitute undue influence. It is generally held that there is no such thing as a confidential relation between the husband and wife in the law governing will contests. Goertner v. Gardiner, 125 Fla. 477, 170 So. 112. The provisions of the will in which they are interested as beneficiaries are separable from those provisions relating to the brother, and the trial court correctly held on the facts presented that the contestant had failed to establish any ground for revocation of the will in its entirety. The burden is on one who contests a will that is duly executed and attested to establish the facts upon which revocation is sought. F.S. § 732.31, F.S.A.; Adams v. Saunders, 139 Fla. 730, 191 So. 312; Wartmann v. Burleson, ...