Miller v. Nelson

• Decision Date: 30 April 1948
• Citation: 35 So.2d 288,160 Fla. 410
• Parties: MILLER et al. v. NELSON et al.
• Court: Florida Supreme Court

35 So.2d 288

160 Fla. 410

MILLER et al. v. NELSON et al.

Florida Supreme Court

April 30, 1948

Rehearing Denied May 29, 1948.

Appeal from Circuit Court, Dade County; George E. Holt Stanley Milledge, and Chas. A. Carroll, Judges.

John C Sullivan and Redfearn & Ferrell, all of Miami, for appellants.

Carl A Hiaasen and McCune, Hiaasen, Fleming & Kelley, all of Fort Lauderdale for twenty heirs and distributees (Samuel Nelson and nineteen others), appellees.

Lewis H. Tribble, of Tallahassee, for C. M. Gay, Comptroller of State of Florida, appellee.

CHAPMAN, Justice.

The State of California, by its Comptroller, Harry B. Riley, and Dora Miller and Harold M. Davidson, by separate petitions filed in the County Judge's Court of Dade County, Florida, prayed for an order declaring Olof Zetterlund to have been a resident of the State of California at the time of his death at San Gabriel, California, on the 21st day of August, 1945. Attached to the petitions were a copy of the last will and testament and codicil thereto of Olof Zetterlund for probate and ancillary proceedings in said court. The State of Florida, through its Comptroller, J. M. Lee, and the devisees and legatees of the last will and heirs and other interested parties filed answers and considerable testimony was adduced on the issue of whether Olof Zetterlund was a resident of the State of California or the State of Florida at the time of his death, and was the administration of the Zetterlund estate in Dade County, Florida, to be an original administration or an ancillary administration.

The County Judge hearing the testimony and considering the many exhibits introduced into evidence concluded, and so held, that Olof Zetterlund, on the 21st day of August, 1945, the date of his death in the State of California, was not a resident thereof but was a resident and citizen of the State of Florida. The petitions of the State of California, Dora Miller and Harold M. Davidson were each accordingly denied and the probate proceedings thereon would continue and proceed as an original and domiciliary administration in the County Judge's Court of Dade County, Florida. On appeal said order was affirmed by an order of the Circuit Court of Dade County Florida, and from said order of affirmance an appeal has been perfected here.

Posed for adjudication in this Court by counsel for appellants are four questions based in a measure on the construction or interpretation of the evidence and exhibits adduced by the parties and considered or construed in the Courts below and certified here. The questions are, viz.:

1. Did the evidence show that Olof Zetterlund, once a resident of the State of Florida, had left the State of Florida and had gone to California on a rest trip and while in California or Oregon he formed the intention to change his residence from Florida to California, and thereafter returned to California and purchased a home in which he lived until his death?

2. Were the legatees, devisees, and heirs at law of Olof Zetterlund who appeared in this cause as petitioners for probate of the will in Dade County, Florida, and who were served with notice of the proceedings to probate the will in California, estopped to apply to the Court of Dade County, Florida, for the probate of the will in Dade County?

3. Was the executor who is named in the original will of Olof Zetterlund which was offered for probate in Dade County, Florida, and who was not the executor named in the codicil to said will executed by Olof Zetterlund in the State of California and who was not related to said testator, a party with such interest as authorized him to contest the probate of said will and codicil and have ancillary proceedings instituted in Dade County, Florida.

4. Is the payment of an intangible tax or the presence of the name of a taxpayer on the intangible list in Dade County, Florida, evidence to prove domicile?

The case of Watts v. Newport, 149 Fla. 181, 6 So.2d 829, involved a purported will alleged to have been made by Mrs. Letitia V. Graham. The questions presented were: (1) Was the alleged will dated August 20, 1937 forged; and (2) did Mrs. Graham on the date of execution have or possess the testamentary capacity to make a will? For and against these questions considerable testimony was taken and in construing or interpreting the same we, in part, said (text 149 Fla. at page 185, 6 So.2d at page 830):

'To answer the question, this Court will first examine the record to determine whether or not the Chancellor followed the correct rule of decision. The rule of decision is that if there is substantial competent evidence to support the findings of the probate Judge and he did not misinterpret the legal effect of the evidence as a whole, his decree should be affirmed. In re Donnelly's Estate, 137 Fla. 459, 188 So. 108; Wilkins Estate, 128 Fla. 273, 174 So. 412; Alkire's Estate, 142 Fla. 862 , 198 So. 475; Thompson's Estate, 145 Fla. 42, 199 So. 352.'

The law makes it our duty on this appeal to examine the evidence and exhibits and determine if there is substantial competent evidence to support the findings of the Probate Judge and that he did not misinterpret the legal effect of the evidence as a whole. If as a result of the examination it is found that there is no substantial competent evidence to support the findings of the Probate Judge and that he misconstrued the evidence taken as a whole, then the findings of the Probate Court must be reversed, otherwise affirmed. Our recital of the evidence is therefore restricted to the pertinent and substantial portions reflected by the record.

Olof Zetterlund was born in Sweden on December 17, 1858. He died in San Gabriel, California, on August 21, 1945, between 86 and 87 years of age. He came to America about the year 1880 and was later employed by Henry Flagler in acquiring the right-of-way for the Florida East Coast Railway Company, and about fifty years ago acquired an interest in two and one-half miles of ocean front land in then Dade County, but now in Dade and Broward Counties. During World War I he married Mrs. Jeanette Weaver, a widow, and they lived together as husband and wife until 1932, when a divorce was obtained and the former wife died during the year 1940. There were no children born to the marriage, but Mrs. Zetterlund had a daughter, Elsie Z. Weaver, by her first marriage. It is not disputed that Olof Zetterlund resided continuously in Dade County, Florida, for half a century preceding the Fall of 1941. He established a home at 1702 South Bayshore Drive, Miami, Florida, where he resided for many years, but in 1936 he moved from his Bayshore home to the Oceanic Hotel in Miami Beach. In 1927 he employed Dora Miller as his housekeeper and she served as such, and in other capacities, continuously from the date of employment in 1927 until his death on the 21st of August, 1945. In 1941 he sold his Bayshore Drive home.

In the Summer of 1941 Olof Zetterlund went to a sanitarium for his health at Battle Creek, Michigan, and corresponded with his employees, Mrs. Ellen Burdet and Dora Miller, his housekeeper. On July 1, 1941, Olof Zetterlund wrote Mrs. Ellen Burdet from Battle Creek, Michigan, requesting Mrs. Burdet to induce Dora Miller to spend her vacation in Michigan rather than California. On July 9, 1941, he wrote Dora Miller in Los Angeles, California. On July 28, 1941, he wrote Mrs. James Burdet and said: 'I am here for my health, but what to do I don't know. I wish to be home. I don't know how Mrs. Dora Miller lives in Los Angeles, California.' On October 16, 1941, Dora Miller wrote from Los Angeles to Olof Zetterlund and, in part, said: 'I would like to come home about October 25th, though I will let you know definitely when I will arrive at Miami. Please do not forget that you shall get ready to go back with me in November to Los Angeles.' In November, 1941, Dora Miller took Olof Zetterlund, then about 83 years of age, to California on a vacation trip to improve his health. Olof Zetterlund and Dora Miller, his housekeeper, resided in Los Angeles from November, 1941, until January, 1942, and then went to Santa Fe, New Mexico, where they lived until May, 1942. From May, 1942, through August, 1942, they lived at Manitou Springs, Colorado, and in September returned to Santa Fe, New Mexico, and resided there until January, 1943, and then went to Ashland, Oregon, where they remained until September, 1943. They returned in October, 1943, to Baldwin Park, California, and there lived until December, 1943, and from January, 1944, until August 21, 1945, the date of his death, they lived at San Gabriel, California. The record fails to show any letters or communications personally signed by Olof Zetterlund from the date of his arrival in California in 1941 until his death in August, 1945, but that such letters, documents, communication or checks bearing his signature were each signed by Dora Miller.

On November 17 1941, Dora Miller wrote from Los Angeles, California, to Miss Freida Elvers about Mr. Zetterlund, viz.: 'He wants to go home and attend to it.' 'Please don't forget that miracles have yet to happen about his memory.' On November 25, 1941, she wrote the same party in part: 'I know that Mr. Zetterlund will get his perfect memory again, but it will take time. It is more than two years since he is disturbed and it will take several months for improvement. I know he will not be home by January 28th (meaning Miami Beach, Florida). On December 10, 1941, she wrote: 'He is improving but slowly.' On December 14, 1941, she wrote in part, viz.: 'How I long to hasten the improvement of Mr. Zetterlund, but we have to be patient. This turmoil of war only the Presence can protect us. We just can's go home as yet as all this...