Lynagh's Estate, In re

• Decision Date: 30 June 1965
• Docket Number: 5126,5233,Nos. 4950,s. 4950
• Citation: 177 So.2d 256
• Court: Florida District Court of Appeals
• Parties: In re ESTATE of Richard A. LYNAGH, Deceased. Eunave Burchell Collins LYNAGH, individually, and as next friend and parent of Sandra Marie Lynagh, a minor, Appellants, v. MARINE BANK & TRUST COMPANY, as Administrator of Estate of Richard A. Lynagh, Deceased, et al., Appellees.

Page 256

177 So.2d 256

In re ESTATE of Richard A. LYNAGH, Deceased.

Eunave Burchell Collins LYNAGH, individually, and as next friend and parent of Sandra Marie Lynagh, a minor, Appellants, v. MARINE BANK & TRUST COMPANY, as Administrator of Estate of Richard A. Lynagh, Deceased, et al., Appellees.

Nos. 4950, 5233, 5126.

District Court of Appeal of Florida, Second District.

June 30, 1965.

Rehearing Denied Aug. 4, 1965.

James A. Franklin, Jr., and Duane A. Reynolds, of Henderson, Franklin, Starnes & Holt, Fort Myers, and Michael H. Otis, Tampa, for appellants and Paul W. Danahy, Jr., Tampa, Guardian ad litem for Sandra Marie Lynagh.

Laurens G. Jones and Margaret E Deaton, Tampa, for appellee Marine Bank and Mary L. Ewbank.

Maynard Ramsey, Tampa, for appellees Sue A. Grim, John J. Lynagh, Jr., Robert Lee Boykin, John T. Boykin and Aubry Brown Boykin.

ANDREWS, Judge.

This is a consolidated appeal from orders entered in a proceeding determining the heirs of Richard Lynagh, deceased, who died September 3, 1962.

The question before this court on appeal are (1) whether venue of the proceedings was properly found to be in Hillsborough rather than Lee County; (2) whether the testimony of two witnesses was properly excluded under the provisions of § 90.05, Fla.Stat., F.S.A., by virtue of their interest in the outcome of the cause; (3) whether there is sufficient competent evidence to support the trial judge's finding that the decedent and the petitioner did not enter into, or consummate, a common-law marriage; (4) the authority and propriety of the administrator to actively participate in the proceedings and to advocate the rights of respondents against the claims of the petitioner; and (5) whether costs incurred by said administrator thereby were properly charged against the petitioner.

Richard A. Lynagh, the deceased, was a wholesale jewelry salesman calling upon customers in South Florida. He owned and maintained a residence and claimed homestead exemption on a home in Tampa, together with his mother. He maintained a post office box, bank account and paid occupational license fees in Tampa; filed his income tax return for the fiscal year ending March 31, 1962 showing a Tampa address; and identified himself as a single man on July 14, 1962. Lynagh also owned a house or ranch in Lee County, and had a close relationship with the petitioner, Eunave Burchell Collins, the result of which an effort is made to establish a common-law marriage. Legal title to the house in Lee County was vested in the deceased and his mother.

An examination of the record discloses that there is substantial competent evidence to support the trial court's finding that the deceased was a resident of Hillsborough County at the time of his demise. We, therefore, hold that the court properly determined that the venue of the estate of the deceased was in Hillsborough County.

The petitioner, apparently in an effort to establish the common-law marriage, called as witnesses, J. V. Moore and his wife, Leona Moore. The court declined to hear their testimony on the grounds that they were interested in the outcome of the litigation. It appears that prior tothe decedent's death, Mr. and Mrs. Moore conveyed to the deceased the ranch property located in Lee County. Thereafter, an additional ten-foot strip of property was conveyed to the deceased; however, the deed contained an erroneous description of the property that was to have been conveyed. This error was not corrected by the parties prior to the decedent's death, and it is, therefore, apparent that the Moores and the persons determined to be the heirs will have conflicting land claims against each other. The appellee maintains that as a result of the 'conflicting claims, Mr. Moore [and his wife] have a distinct interest in the proceedings itself in addition to the outcome.' We do not agree. To be disqualified from testifying by reason of interest in the event of the action or proceeding, under § 90.05, Fla.Stat., F.S.A., the witness must be so interested in the result of the suit that he will gain or lose, directly or immediately thereby, or the testimony to be given must be such that the record in the suit may be used as legal evidence for or against the witness in some action to prove or disprove matters to which he testified. Broward National Bank of Ft. Lauderdale v. Bear, Fla.App.1961, 125 So.2d 760, 84 A.L.R.2d 1352; Farrington v. Richardson, 1944, 153 Fla. 907, 16 So.2d 158, and the cases cited therein. In this connection, the interest must be a present and vested interest and not one uncertain, remote or contingent. Parker v. Priestly, Fla.1949, 39 So.2d 210; Broward National Bank of Ft. Lauderdale v. Bear, supra. Furthermore, the burden of proving disqualification by interest is upon the party objecting to the witness. Madison v. Robinson, 1928, 95 Fla. 321, 116 So. 31.

We cannot perceive, nor has it been made to appear just how Mr. and Mrs. Moore would be able to 'gain or lose' directly by the outcome of the heirship proceeding. Such a proceeding merely determines who are the distributees, legatees, or beneficiaries of a decedent and who is, therefore, entitled to the assets of the estate. In the instant case the determination will in no way establish the rights of Mr. and Mrs. Moore to any of the property in dispute, but will only decide who the witnesses will have to deal with in order to settle the matter. There was nothing in the evidence to indicate that the witnesses and the petitioner had entered into an agreement regarding the disposition of the boundary dispute in the event that she prevailed in the cause. We think that under the circumstances and facts here presented, it cannot be said that the witnesses are 'interested' in the outcome so as to render them incompetent to testify under § 90.05, Fla.Stat., F.S.A. The most that can be said is that their interest is indirect or of a 'doubtful nature', and where this is the case 'the objection goes to the credit of the witness, and not to his competency.' Madison v. Robinson, supra, at page 35. for the above reasons, we hold that the appellees have failed to show that the witnesses...