Lomineck's Estate, In re, s. E-87

• Decision Date: 01 August 1963
• Docket Number: E-97,Nos. E-87,s. E-87
• Citation: 155 So.2d 561
• Parties: In re ESTATE of Goldia LOMINECK, also known as Goldle Irene Lomineck, Deceased.
• Court: Florida District Court of Appeals

Page 561

155 So.2d 561

In re ESTATE of Goldia LOMINECK, also known as Goldle Irene Lomineck, Deceased.

Nos. E-87, E-97.

District Court of Appeal of Florida, First District.

Aug. 1, 1963.

George W. Scofield and Johnson S. Savary, Inverness, for appellant.

Musleh & Musleh, Ocala, for appellee.

STURGIS, Chief Judge.

The appellant, Amy Moore, a daughter of one Goldia Lomineck, alias Goldie Irene Lomineck, deceased, brings this appeal to review an order of the County Judge's Court of Marion County, Florida, denying appellant's protest against the admission to probate of a purported will of the deceased and adjudging that upon proper 'proof of will and petition for probate the same be admitted to probate.' By a separate appeal she seeks review of a subsequent order admitting the will to probate and directing that letters testamentary issue to a designated executor. The appeals are consolidated for the purpose of review and the orders appealed are affirmed.

The first step taken in the administration of decedent's estate was the filing of the will in question. This was followed by the giving of a notice on the part of one Dorothy Lee Crowell (a granddaughter of decedent and a beneficiary under the subject will) to certain attorneys at law that at a time stated she would attempt to have the will admitted to probate. At that point the relation of the attoeneys so notified was not reflected by the record. However, the appellant then filed a pleading protesting admission of the will to probate on the grounds (1) that it was a forgery, (2) that it was not signed by the testatrix, (3) that it was not signed in her behalf by a person duly authorized, (4) that it was not witnessed according to law, and (5) that the real property constituting the sole property passing thereunder was the homestead of the testatrix and therefore not subject to devise. On the basis of these pleadings and none other the proponent and contestant of the will presented testimony on the issues tendered by contestant's pleading and thereupon an order was entered holding, in effect, that the instrument in question was the valid last will and testament of the decedent, and ordering:

'* * * that upon proper Proof of Will and Petition for Probate the same be admitted to probate in this Court as the last Will and Testament of Goldia Irene Lomineck, deceased, and that the Motion to Strike be and the same is hereby denied as are the Answer and Protest and Petition Objecting to Will.'

We think the quoted provision of the order is explainable by the fact that while a full hearing was had, as aforesaid, at which was presented the testimony of all persons who were shown by the will to have participated in the execution thereof--testimony purporting to reflect the surrounding facts and circumstances--the fact is that at the time the order was entered no person had filed a formal petition for admission of the will to probate, nor had the usual proof of will been made by a subscribing witness. In any event, after entry of the order the decedent's granddaughter, Dorothy Lee Crowell, petitioned the court to admit it to probate, and O. V. Pinkston, a person who was the scrivener of the will, who signed testatrix' name thereto, and who was also a subscribing and attesting witness, as hereinafter more fully discussed, made proof of the will in form agreeable to law. Pursuant to these pleadings the court entered the second order appealed, and thereby admitted the will to probate and authorized letters testamentary to be issued to a designated executor of decedent's estate, subject to his taking the required oath and furnishing bond.

Summarizing appellant's position, it is contended: (1) That the trial court erred in holding that the will in question was the true and genuine last will and testament of the defendant; (2) that the trial court erred in holding that the real property devised under the will was not homestead property; and (3) that the trial court erred in considering the supplemental proof of will and petition for probate thereof and in entering the second order appealed without notice to appellant or her attorney. We discuss the same in inverse order.

The validity of the second order appealed is challenged by reason of the fact that notice was not served on appellant or her attorney of the filing of the proof of will and petition to admit it to probate. There is no merit in this contention. All issues touching upon the validity of the will had by common consent of the interested parties been previously tried and were settled by the former proceedings resulting in the first order appealed. Moreover, it does not appear that the appellant, upon becoming advised of the entry of the second order, made any effort in the probate court to have it set aside on the ground of lack of notice in the premises. Under the circumstances of this case, which lacks any showing before the trial court or here of prejudice in the premises, we will not presume that prejudice exists or that appellant's substantial rights were violated.

On the question of whether the devised real property was the homestead of the decedent, suffice it to say that our review of the record reflects that there was ample testimony to support the conclusion of the lower court.

We have had some difficulty in determining whether the instrument in question was executed in manner and form required to entitle it to be admitted to probate as decedent's last will and testament. We have found no decided case in this jurisdiction presenting the factual situation here involved. Testatrix died November 29, 1953, survived by two daughters, Amy Moore, the appellant, and Joemimia Corine Riley; and by a son, Arthur Isham. At one time Joemimia Corine Riley and her daughter, Dorothy Lee Crowell, granddaughter of testatrix and proponent of the will, lived with the testatrix in her home but had moved therefrom approximately two years prior to testatrix' death.

The will in question was executed August 4, 1949. It was handwritten in ink and ...