Kuehmsted v. Turnwall

• Decision Date: 05 July 1934
• Parties: KUEHMSTED v. TURNWALL et al.
• Court: Florida Supreme Court

155 So. 847

115 Fla. 692

KUEHMSTED v. TURNWALL et al.

Florida Supreme Court

July 5, 1934

Rehearing Denied July 24, 1934.

En Banc.

Suit to revoke probate of a will, by James D. Turnwall and others against Albert Louis Kuehmsted, as executor. From a judgment of the circuit court reversing a judgment of the probate court, which denied and dismissed the petition, and directing the order probating the will to be vacated and set aside defendant appeals.

Affirmed. Appeal from Circuit Court, Pinellas County John U. Bird, judge.

COUNSEL

Wilson & Bogue, of St. Petersburg, Loftin, Stokes & Calkins, of Miami, and Robert H. Anderson, of Jacksonville, for appellant.

Austin L. Richardson, of St. Petersburg, for appellees.

OPINION

TERRELL Justice.

The appellant, Albert Louis Kuehmsted, was married to Julia B Turnwall in 1901. They divorced at the instance of the latter in 1925. October 19, 1928, they were remarried, and on October 28, nine days later, Mrs. Kuehmsted died. Immediately following the second marriage, Mrs. Kuehmsted executed her last will and testament in which she made Albert Louis Kuehmsted her executor and main beneficiary. The second marriage of Mr. and Mrs. Kuehmsted was, on January 11, 1932, held to be invalid by this court for want of mental capacity on the part of the latter to contract the marital state. Kuehmsted v. Turnwall et al., 103 Fla. 1180, 138 So. 775; State ex rel. Kuehmsted v. Hewitt, 103 Fla. 1177, 138 So. 778.

The will of Mrs. Kuehmsted was admitted to probate the day following her death. Months later, the appellees in this cause filed their petition in the probate court of Pinellas county praying that the probate of the said will be revoked, and that an administrator be appointed to take charge of and administer her estate. The petition to revoke the will of Mrs. Kuehmsted was grounded on coercion, duress, undue influence, and lack of testamentary capacity to make a will. Albert Louis Kuehmsted answered the said petition denying every material allegation thereof. After the suit to revoke the probate of the will was filed, the suit of Kuehmsted v. Turnwall, supra, was instituted and prosecuted to final conclusion with the results as indicated. Subsequent to the decision of this court in Kuehmsted v. Turnwall, supplementary pleadings were filed in the suit to revoke the probate of the will in which it was attempted to invoke the final decree in the last-named cause holding the second marriage of the Kuehmsteds invalid. On the issues made by these pleadings evidence was taken, and on final hearing the probate judge entered an order denying and dismissing the petition to set aside the probate of the will. From this order appeal was prosecuted to the circuit court, who reversed the judgment of the probate court, with directions to vacate and set aside the order probating the will. The instant appeal is from the order of the circuit court so entered.

Four questions are argued in this court, viz.: (1) Was the decision of the probate court supported by the evidence? (2) Did the probate judge misapprehend the legal effect of the evidence as an entirety? (3) In the exercise of the appellate jurisdiction of the circuit court in probate matters arising before the probate court, does the circuit judge hear and determine the errors assigned without regard to presumptions indulged in support of the correctness of the judgment appealed from, or does the usual presumption of the correctness of the findings of the probate judge prevail in such matters? (4) Is the decree of the chancellor holding invalid a marriage because of mental incapacity of one of the spouses to contract the marital state conclusive of the insanity of that spouse in a proceeding to revoke the probate of a will executed by said spouse contemporaneously with the entry into the marital state?

In the trial of this cause below, the probate judge heard and considered all the testimony, a part of which was the pleadings and final decree in Turnwall et al. v. Kuehmsted, wherein the last marriage of Mr. and Mrs. Kuehmsted was held invalid. Such was the decree approved by this court in Kuehmsted v. Turnwall et al., supra. Except the evidence of an eminent alienist on each side, the evidence in this case is, in the main, the same as the evidence in Kuehmsted v. Turnwall et al., supra. The evidence of the two alienists was intensely interesting and instructive, but it adds nothing whatever of probative value to the case. Both were outstanding men in their line, and testified very learnedly, but the result of their testimony as to the sanity of Mrs. Kuehmsted was as inharmonious and conflicting as it was possible for it to be, so we consider that it balanced and was as if it had not been offered.

In addition to the pleadings and final decree in Turnwall et al v. Kuehmsted, the appellees offered and relied on the testimony of a Dr. Miller, whom Mrs. Kuehmsted had instructed to be called if she needed a doctor, and Dr. E. J. Melville, who was called in consultation, Mrs. Seelman, a practical nurse who was known to Mrs. Kuehmsted for years and nursed her during her last illness. Appellant relied on the testimony of Dr. Watson, who performed the marriage ceremony, Judge Wilson, the lawyer who drew the will, Mrs. Bartells, Mrs....